LAFAYETTE, La. — Derek Harris was in his Louisiana home one night in 2008 when he heard a knock on the door.
Harris, of Abbeville, opened the door to find a man seeking marijuana. The 40-year-old U.S. Army veteran of Desert Storm, who was struggling with substance abuse in the wake of his service, sold the man 0.69 grams of pot for a total of $30.
Little did Harris know that the seemingly insignificant drug sale – to an undercover sheriff’s deputy – would end with him serving a life sentence at the Louisiana State Penitentiary at Angola.
That will soon change.
Prosecutors in Vermilion Parish last week agreed to free Harris, now 52, from prison following a decision last month by the Louisiana Supreme Court, which granted him a new sentencing hearing in the case. Keith Stutes, district attorney for Louisiana’s 15th Judicial Circuit, agreed with Harris’ appellate attorney that Harris, who was sentenced as a habitual offender, had received ineffective counsel at his sentencing.
District Judge Laurie Hulin re-sentenced Harris to nine years in prison, essentially freeing him with time served, NOLA.com reported.
One of Harris’ attorneys, Cormac Boyle with the Promise of Justice Initiative, indicated that Louisiana’s unduly harsh habitual offender law has sent many men to prison for life after they’ve committed petty crimes.
In another case that made headlines last month, the state supreme court declined to review the sentence of Fair Wayne Bryant, who was convicted as a habitual offender in 1997 and sentenced to life for simple burglary. His crime was taking a pair of hedge clippers from a shed in Shreveport.
>> Related story: Louisiana high court refuses to review case of Black man serving life for stealing hedge clippers
“It is certainly time for Louisiana to rethink how it uses the habitual offender law,” Boyle said, according to NOLA.com. “While in theory such a law may be fine, in practice it perpetuates and exposes some of the worst aspects of the criminal justice system.”
In a news release, Boyle pointed out that prior to the initiative’s argument on Harris’ behalf before the high court earlier this year, those sentenced under the controversial law “had no meaningful opportunity to argue that their sentence was extreme or their lawyer was incompetent if they had already been convicted.”
“Mr. Harris’ resentencing gives hope to many others around the state who have unjustly suffered under the habitual offender law, and will now be able to challenge their sentences post-conviction,” Boyle said in a statement.
A knock on the door
According to court records and a report by The Appeal, the undercover deputy asked a teenager on the street the night of Oct. 2, 2008, where he could buy some marijuana. The boy pointed him in the direction of his own home, where Harris, his mother’s boyfriend, was staying.
“Although Mr. Harris sold the undercover officer 0.69 grams of marijuana in exchange for $30, he was not a drug dealer, just down on his luck and suffering from a serious drug addiction he had picked up after returning home from the military,” Harris’ December 2019 appellate brief read.
Four months later, Harris was arrested for marijuana distribution, the brief said. He was officially charged nine months after that.
Prosecutors in September 2010 offered Harris a deal of seven years in prison for a guilty plea. Harris’ lawyer never told him about the offer, however.
When Harris failed to take the offer, another assistant district attorney offered a maximum of 30 years in exchange for a guilty plea.
“This far less favorable offer was communicated to Mr. Harris and rejected,” the brief said.
Harris’ trial attorney, Jan Rowe, blamed Harris’ drug abuse for the lack of communication with Harris over the initial offer from prosecutors. Rowe told The Appeal that he lost track of his client for a couple of years, up until right before the offer of 30 years was on the table.
“Personally, I think that he had a future, if he would’ve given up the drugs,” Rowe said. “I knew several lawyers that went to school with him and they all said he was a great guy, great athlete, all that stuff. I really consider this the worst case I’ve ever had. I was shattered that he didn’t help himself, for the longest time. It didn’t have to happen like that.”
Harris chose a bench trial instead of trial by jury and, in June 2012, went before 15th Judicial District Judge Durwood Conque, who has since retired. Prosecutors’ case offered no evidence of Harris regularly selling drugs, nor were other drugs confiscated from his home.
The sole evidence, his appellate attorneys argued, was a silent surveillance video of the drug deal and the small amount of marijuana the undercover officer bought from him four years before.
Harris was found guilty but at sentencing, the judge noted Harris’ four years in the Army, including his time in combat, and pointed out that based on the vet’s prior criminal record, he appeared to be not a drug dealer but a drug addict.
“The court appeared inclined to find that Mr. Harris was more in need of treatment than confinement,” the brief said.
Still, Conque sentenced Harris to 15 years in prison. The defense filed a motion asking that the sentence be reconsidered, but was denied.
Assistant District Attorney F. Stanton Hardee III, “displeased Mr. Harris was not sentenced to the maximum,” filed a habitual offender bill with the court, the appellate brief stated.
Read Derek Harris’ December 2019 brief below.
Derek Harris 2019 Appellate Brief by National Content Desk on Scribd
Harris’ prior crimes included a 1991 conviction for distribution of cocaine, 1993 and 1994 convictions for simple robbery, a 1997 conviction for simple burglary and a 2005 conviction for theft under $500, court records showed.
All the offenses from the 1990s took place shortly after Harris’ honorable discharge from the military.
Harris’ appellate attorneys argued that in recent decades, multiple laws and programs have been established to help veterans struggling to readjust to life after service. At the time of his crimes, however, none of those programs existed.
His brief to the high court pointed out that none of his prior crimes involved violence or threats of violence. The defense also pointed out that 14 years had elapsed between the robbery charges, which at that time were not classified as violent crimes, and the marijuana charge.
Harris’ mother, Stella Harris, pleaded for leniency for her son during his habitual offender resentencing hearing, according to The Appeal.
“My son is not a drug dealer,” she said, according to Harris’s brother Antoine. “What he sold the cop that literally went into the neighborhood posing as a drug addict was the equivalent of a joint or two.”
Conque resentenced Harris on Nov. 15, 2012, to life in prison without the possibility of parole.
‘Not a drug kingpin’
The judge told the defendant that his hands were tied in the matter because of the habitual offender statute.
“I mean you were not a drug kingpin selling bales of marijuana to school children on the school ground. I mean, that’s not the kind of thing that we’re looking at here,” Conque told Harris, according to court records. “I agree that you’re not what we would think of as a drug dealer, so far as I can tell.
“But you are a four-time felon and that presents problems that I can’t overcome for you, no matter how much I would want to.”
Harris’ appellate attorneys argued that prosecutors have the ability to use their own discretion on when to invoke the habitual offender law. They also argued that Rowe “shockingly” failed to present “substantial mitigation” in his client’s background to warrant a much lower sentence.
“He did not argue that the court can and needed to depart from the mandatory sentence, or that the institution of the habitual offender proceedings, under the circumstances, constituted an abuse of discretion on the part of the prosecuting attorney,” the lawyers’ brief said. “Finally, and critically, counsel did not take the basic step of filing or making a motion to reconsider sentence.”
Harris was sent to Angola to live out the remainder of his life.
“To me, a piece of her life was gone then,” Antoine Harris told The Appeal about his mother. “She had a broken heart, you know, because one of her kids is locked up in a cage for the rest of his life for nothing more than petty drug crimes.”
Over the years, Derek Harris appealed his case to little effect. The 3rd Circuit Court of Appeals in 2013 upheld his sentence, despite finding that Harris’ previous defense had never raised the excessiveness of his punishment as an issue worth appealing.
Judge Sylvia Cooks wrote a scathing dissent to the appeals court’s decision in which she called Harris’ sentence “bereft of fundamental fairness.”
“I believe it is unconscionable to impose a life-sentence-without-benefit upon this defendant, who served his country on the field of battle and returned home to find his country offered him no help for his drug addiction problem.” Cooks wrote. “It is an incomprehensible, needless, tragic waste of a human life for the sake of slavish adherence to the technicalities of law.”
Cooks wrote that her colleagues ignored the fact that Conque placed into the record the entire transcript of Harris’ initial sentencing hearing, during which the judge himself “went to great lengths” to explain why he was sentencing him to 15 years instead of the maximum of 30 years.
“The majority incorrectly asserts that there was no evidence presented at the hearing on the habitual offender charge, and then fails to conduct even a review for bare excessiveness as required by our longstanding jurisprudence,” Cooks wrote. “It certainly is shocking to my conscience as an appellate judge to imagine that this defendant, in light of the evidence and testimony put forth at his hearings, which the trial judge found to be credible and worthy of note, could be sent to prison for life based on the sale of 0.69 gram of marijuana.”
Cooks also wrote that Conque “committed legal error” when he sentenced Harris based on his own belief that the law did not permit him to do otherwise.
“Not only does our law permit him to deviate from the mandatory sentence, he is in fact ‘duty bound’ to do so if he makes a determination that such punishment would make no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering grossly disproportionate to the severity of the crime,” the appellate judge wrote.
In the Louisiana Supreme Court’s ruling last month in Harris’ favor, the majority of the court agreed that Rowe gave inadequate counsel by not arguing against Conque’s assertion that his hands were tied in sentencing Harris to life. Though the high court’s own 1996 decision left little opportunity for defendants to seek post-conviction relief on the basis of ineffective counsel, some exceptions were made.
Read the Louisiana high court’s ruling below.
Justice Scott Crichton wrote in a concurring opinion last month that the 1996 decision itself was “egregiously wrong.”
“The consequences of it have been significant and negative,” Crichton wrote, “leaving defendants like this one with no real remedy for the denial of the Sixth Amendment right to effective representation during sentencing, a critical stage of the proceedings.”
Kristin Wenstrom, who represented Harris along with Boyle, told NOLA.com that the court’s message to lawmakers is clear.
“The Louisiana Supreme Court did the right thing for Mr. Harris and others like him who are serving unconstitutional sentences,” Wenstrom said. “What’s left now is for the Legislature to bring the relevant statute in line with the court’s ruling; we hope they will do that in the next session.”
Stella Harris unfortunately did not live to see the release of her son from prison. She died in December 2015 at the age of 68.
Upon his release, Derek Harris plans to move to Louisville, Kentucky, where he will live near his brother and extended family, Boyle said.
“He is eager to watch his nephews play sports and to build a life for himself there,” Boyle said in a statement. “While (Stella Harris) is not here today to see this result, Mr. Harris has always felt her spirit watching over all of us throughout this arduous process.”
Cox Media Group