AL Appeals Court Vacates Death Penalty Conviction : Pre-Trial Publicity

The Alabama Criminal Appeals Court has reversed the conviction and death sentence of a Vietnamese immigrant who allegedly killed his four children by throwing them off a bridge, citing the trial court's rejection of a motion to change venue due to pre-trial publicity. The 90 page opinion is here.

"It is clear that publicity surrounding the murders completely saturated the Mobile community in 2008. A great deal of that publicity was prejudicial... Luong was denied his constitutional right to an impartial jury. Therefore, we must reverse Luong's convictions and sentence of death and remand this case for a new trial."

The Court also ruled the trial judge erred by refusing to allow the defense to individually question the jurors, who had filled out questionnaires, on what they had heard about the case. [More...]

Other errors: Refusing a defense request for $7,500 for the defense to travel to Vietnam and investigate their client's childhood for mitigation evidence. An affidavit filed by the defense stated:

[Mr. Luong's] birth was the result of a brief relationship between a black American serviceman serving in the Vietnam War and his Vietnamese mother who lived in Saigon [now Ho Chi Minh City]. After his birth he was given to his maternal grandparents to raise in the country away from Saigon. He remained with the grandparents until he was nine years old when he joined his mother, a step-sister, and a step -father in Saigon. Lam Luong came to the United States when he was fourteen years old and he and a few of his cousins lived with a family under the Unaccompanied Minor Program run by Catholic Charities in Jersey City, New Jersey.

Vietnamese society is generally cruel in its treatment of Amerasian children, especially black Amerasians, and they are often ostracized and banished from society. Lam Luong is a black Amerasian and his personal history reveals he was treated much like other Amerasian children born before the fall of Saigon in 1975."

The appeals court ruled:

If convicted Luong faced the ultimate punishment –- death. Based on the severity of the penalty and the necessity of presenting mitigating evidence in the penalty phase of a capital-murder trial, it was reasonable and prudent for counsel to request funds to investigate Luong's difficult childhood in Vietnam. Moreover, the sum requested by counsel, $7,500, was not unreasonable.

The appeals court also said the trial court erred by not requiring transcription of his orders to the jury when filling out the questionnaires. The state argued voir dire didn't begin until the oral questioning started a few days later.

The completion of a juror questionnaire related to a specific case is part of the voir dire process; thus, according to Rule 19.4, Ala. R. Crim. P., the court's instructions related to those questionnaires should be recorded and transcribed by the court reporter.

Then there was the simulated experiment on videotape of a cop throwing four sandbags off the bridge that was allowed in the death penalty phase over objection.

The State asserted that the videotape was admissible in the penalty phase to establish the aggravating circumstance that the murders were especially heinous, atrocious, or cruel because the videotape showed the force with which the bodies hit the water.

Cpt. Wilson testified that he conducted an experiment by using sandbags that corresponded to the different weights of the children and that he threw them individually off the Dauphin Island Bridge. He testified that he used a conversion chart that he had obtained on the Internet to calculate the speed at which each child hit the water. Cpt. Wilson testified that the children were descending and hit the water at a rate of 25 miles per hour.

After noting that the weights used were from the autopsy, which are often different than weights when alive, the Court said:

"[B]ecause a filmed reenactment of a particular event is a type of evidence which has the potential to cause great prejudice, a court should exercise caution when ruling upon the admissibility of a filmed reenactment in a criminal case. Most jurisdictions that have admitted filmed reenactments as evidence in a criminal case have required the proponent of this evidence to lay a proper foundation showing that the video tape or film accurately portrays the event in question...."The strong impact of seeing an inaccurate reenactment creates such a substantial possibility of prejudice that it is unlikely cross-examination could effectively point out the discrepancies."

The cop who conducted the video experiment and testified at trial was not offered as an expert witness.

We can locate no caselaw allowing a layperson to testify concerning the rate of acceleration of a falling body. Certainly matters of physics and velocity are not matters within the common knowledge of an average juror ...Because an appropriate expert did not testify concerning the formula used to calculate the rate and speed of descent of the four victims, the admission of evidence of Cpt. Wilson's experiment was error.

Another error: The defense alleged the interpreter assigned was not certified or registered in Alabama and that his interpretations were inadequate and unreliable. The Court directed a registered interpreter be used for the retrial.

The jurors took 40 minutes to deliberate the case. The state says it will appeal the reversal to the state supreme court. Luong's attorney says:

"Maybe this will save his life," Hughes said. "I don't know how this will come out down the road. But he's certainly better off than he was."

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  • Display: Sort:
    Hard to imgine the prosecutors are appealing (none / 0) (#1)
    by womanwarrior on Sat Feb 16, 2013 at 08:24:27 PM EST
    How much more wrong do they need before they admit they led the court into error?  Excellent to read about the criticism of "video reenactment."  Thanks for sharing this.  
    I represented a young man of the same origin years ago.  His early life was very difficult, but I was able to get his mother to testify about his early life and his illiteracy because of being sent to the country and coming back to Saigon numerous times, to establish that he did not speak Chinese and was unaware of the details of what the Chinese Vietnamese gang he was caught with was doing.  The Vietnamese interpreters we had to import from NYC were the most wonderful women.  I could not have succeeded in a not guilty verdict without their help.  

    I'm a little confused. Please clarify. (none / 0) (#2)
    by caseyOR on Sat Feb 16, 2013 at 08:42:21 PM EST
    J, you start off by saying that the Alabama Supreme Court has reversed this man's conviction and death sentence. Then at the end you wrote this:

    The state says it will appeal the reversal to the state supreme court.

    It sounds like the state, in this case the prosecution, will appeal an Alabama Supreme Court decision to that same court. Am I reading this wrong? Because it does not make sense to me that the AL SC would hear an appeal of its own decision.

    Sorry, it was the appeals court (none / 0) (#3)
    by Jeralyn on Sat Feb 16, 2013 at 11:33:15 PM EST
    not the Supreme Court that just issued the reversal decision. Good catch. Considering it took me 10 minutes to find the opinion(the AL courts page doesn't post opinions, they are available only through subscription, so I kept searching till I found a free copy) I should have caught that. Thanks for pointing that out, I've fixed it.