Investigation Records to be kept Secret in Case of Future Criminal Charges

The First Circuit Court of Appeal in Baton Rouge ruled against The Times-Picayune and CNN, which have been fighting in court for four years to unseal the records of former Attorney General Charles Foti’s explosive investigation into whether doctors and nurses euthanized 34 patients as they prepared to evacuate the Memorial Medical Center after Hurricane Katrina.

The key issue in the case is a state law allowing prosecutors to keep secret records in criminal cases where prosecution is “pending or reasonably anticipated.”

The judges rejected the argument by the media companies that if legislators intended to keep criminal case files secret permanently because prosecutors might catch a break, the law would have been written to provide an absolute exemption.

Foti accused Dr. Anna Pou and nurses Lori Budo and Cheri Landry of killing critically ill patients at the hospital with overdoses of a mix of sedatives and painkillers. Budo and Landry were given immunity for grand jury testimony after Pou and the two nurses each were arrested in 2006 on four counts of second-degree murder.

An Orleans Parish grand jury declined to indict Pou in 2007. The charges against all three women have been expunged.   An expungement is the process of legally removing records or information in files relating to criminal charges.

First Circuit Chief Judge Burrell Carter, who authored Thursday’s ruling, noted that there is no time limitation on the institution of prosecution for any crime punishable by death or life in prison. Second-degree murder carries an automatic life sentence.

In Louisiana, second-degree murder is defined as the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.

(3) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I through V of the Uniform Controlled Dangerous Substances Law*, or any combination thereof, which is the direct cause of the death of the recipient who ingested or consumed the controlled dangerous substance.

(4) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I through V of the Uniform Controlled Dangerous Substances Law*, or any combination thereof, to another who subsequently distributes or dispenses such controlled dangerous substance which is the direct cause of the death of the person who ingested or consumed the controlled dangerous substance.

If you or someone you know has been charged with murder or other crimes, contact Baton Rouge Criminal Attorney Carl Barkemeyer by visiting www.attorneycarl.com.

Sources: The Times-Picayune, “Appeals Court rejects media request to open files on Memorial Medical Center investigation,” December 8, 2011.

The Advocate, “Court: No hospital records,” December 9, 2011.