STATE OF LOUISIANA v. IN RE STATE OF LOUISIANA (2016)

Because we conclude that the judge ad hoc abused his discretion when he made an erroneous application of controlling law in finding that the district attorney and his entire office must be recused from the prosecution of Mr. Stemle, we grant the writ and vacate the ruling.

I

At the outset, it is important to note that the district attorney is vested with vast prosecutorial discretion and has “charge of every criminal prosecution by the state in his district.․” La. Const. art. V, § 26.¹ This discretion extends to a determination of “whom, when, and how he shall prosecute.” La. C.Cr.P. art. 61 (emphasis added). See also Bd. of Comm'rs of Orleans Levee Dist. v. Connick, 94-3161, p. 14 (La. 3/9/95), 654 So. 2d 1073, 1080 (“The constitutional role of the district attorney is incipient to the criminal process; his decision to file charges in a court of criminal jurisdiction is the event which incites a trial court's exercise of that jurisdiction.”).

And, of course, the fact that a defendant may have been arrested on municipal violations does not preclude the district attorney from instituting a felony prosecution for a violation of state law in criminal district court. See La. R.S. 13:1336 A (“The criminal district court for the Parish of Orleans shall have exclusive jurisdiction of the trial and punishment of all crimes, misdemeanors, and offenses committed within the parish of Orleans if the jurisdiction is not vested by law in some other court.”). This is especially relevant in a case such as this one where the municipal and felony charges do not constitute the “same offense.” See La. R.S. 14:143 A (“[N]o governing authority of a political subdivision shall enact an ordinance defining as an offense conduct that is defined and punishable as a felony under state law.”); see also La. Const. art. VI, § 9.²

But even if the charges did constitute the “same offense,” the concurrent jurisdiction shared by the Orleans municipal court and criminal district court over certain misdemeanor offenses, see La. R.S. 13:2493 B; La. R.S. 14:143 B, can often result in a “race to the courthouse” between the city prosecutor and district attorney.³ See City of Baton Rouge v. Ross, 94-0695, p. 23 (La. 4/28/95), 654 So. 2d 1311, 1325; Johnson v. Mayo, 41,645, p. 5 (La. App. 2 Cir. 2/28/07), 953 So. 2d 930, 933; Bush ex rel. State v. Williams, 504 So. 2d 1060 (La. App. 1st Cir. 1987).

It is thus not uncommon for a district attorney to file criminal charges where a defendant may have been arrested for, or arraigned on, municipal violations. See State v. Norwood, 351 So. 2d 122, 124 (La. 1977) (There is “no constitutional principle that prevents the filing of appropriate charges against a defendant in several courts of concurrent jurisdiction.․”) (internal citation omitted); see also State v. Saizan, 96-1340, p. 10 (La. 4/8/97), 692 So. 2d 1045, 1051 (district attorney and parish attorney “may simultaneously proceed with prosecutions in their separate jurisdictions until jeopardy attaches in one of the courts.”). Nor is it remarkable for a district attorney to file subsequent criminal charges based on the same conduct which previously resulted in a municipal court disposition. See, e.g., State v. Magee, 12-1084 (La. 8/25/14), 146 So. 3d 193 (defendant pled guilty to misdemeanor under La. R.S. 14:95 A; state thereafter charged defendant with felony violation of La. R.S. 14:95); State v. Thames, 259 So. 2d 26 (La. 1972) (per curiam) (defendant found not guilty of criminal damage to property in municipal court; state filed charge of aggravated battery based on same altercation).

The district attorney “has the right and the duty to ferret out wrongdoers wherever he perceives them to be lurking, and then to bring them before a tribunal exercising criminal jurisdiction so that their guilt or innocence may be determined.․” Bd. of Comm'rs of Orleans Levee Dist., at p. 14, 654 So. 2d at 1081. And, as illustrated above, the district attorney's rights and duties do not end at the threshold of municipal court.

II

Having established that the district attorney was within his constitutional and statutory rights to charge Mr. Stemle with the crime of home invasion, despite the defendant's arrest for municipal violations, we turn to address the central issue—whether the district attorney should be recused.

A

A district attorney must be recused from a case, in relevant part, when he has “a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice.․” La. C.Cr.P. art. 680(1). The defendant bears the burden of proving a “personal interest,” which he must establish by a preponderance of the evidence. See State v. King, 06-2383, p. 7 (La. 4/27/07), 956 So. 2d 562, 565. The determination under La. C.Cr.P. art. 680 is an objective one: whether a reasonable person would believe the facts at issue regarding the district attorney's personal interest in the cause would impair his ability to act fairly and impartially in conducting defendant's prosecution. See id., at p. 9, 956 So. 2d at 567. “An appearance of bias and prejudice is not sufficient to warrant the granting of a motion to recuse. In order to show that a district attorney should be recused from a case the defendant has to prove that he was treated differently in the management of his case.” State v. Ellis, 13-1401, pp. 26-27 (La. App. 4 Cir. 2/4/15), 161 So. 3d 64, 80 (emphasis added) (internal brackets omitted) (citing State v. Wainwright, 02-2212, pp. 1-2 (La. App. 4 Cir. 12/30/02), 837 So. 2d 123, 124). And, importantly, the remedy of recusal “was developed in order to provide a form of protection against bias and partiality to one prosecuted for commission of a criminal offense.” King, at p. 6, 956 So. 2d at 565 (quoting Plaquemines Parish Commission Council v. Perez, 379 So. 2d 1373, 1378 (La. 1980)).

B

In cases which upheld recusal, the district attorney was found to have a personal interest which resulted in an actual conflict with the “fair and impartial administration of justice.”

The Louisiana Supreme Court in King found that the district attorney's personal animosity towards the defendant warranted recusal under La. C.Cr.P. art. 680(1). The district attorney, who testified at the recusal hearing, believed the defendant had started or spread salacious rumors about him and his family and he informed defense counsel that the defendant “was in the cross hairs as a result of the rumors.” The district attorney further admitted that the alleged rumors factored into his decision to pursue the prosecution against Mr. King. See King, at pp. 10-11, 956 So. 2d at 567-68. The court found “[t]he fact that the district attorney's personal negative feelings against defendant were a factor in making prosecutorial decisions in defendant's case is inconsistent with the policy underlying La. C.Cr.P. art. 680(1)․” Id., at p. 13, 956 So. 2d at 569.

Similarly, the district attorney was recused when his personal animosity towards the defendant, developed during a heated election where he supported the defendant's rival, led him to make public statements that after the election he would indict the defendant for alleged defamatory statements. See State v. Snyder, 256 La. 601, 237 So. 2d 392 (1970). The district attorney thereafter brought fourteen indictments against defendant. Despite the district attorney's testimony during the recusal hearing that his personal animosity had “eroded” after the election, the court found that “where such deep-seated hatred has once evinced itself, the district attorney might, even though unconsciously, have impaired his power to conduct relator's trial fairly and impartially.” Snyder, 256 La. at 610, 237 So. 2d at 395.

Personal interest also warrants recusal when the district attorney is the victim. In State v. Cox, 246 La. 748, 167 So. 2d 352 (1964), the defendant was charged in separate cases with defamation of the district attorney and of a district judge. The district attorney recused himself in the case in which he was the named victim, but did not recuse himself in the judge's case. The court found that “the personal interest of the district attorney in one [case] was as great as in the other” and the district attorney's dual roles as prosecutor and witness were “incompatible.” Cox, 246 La. at 761-62, 167 So. 2d at 357.⁴ See also Parkerson v. Norris, 529 So. 2d 1392 (La. App. 2nd Cir. 1988) (district attorney properly recused where he initiated grand jury investigation into matter in which he was the victim).

In a comparable context, however, courts have been reluctant to recuse the district attorney based on a relationship to the victim, without a showing of a personal interest such that it threatened the fair and impartial administration of justice. See Ellis, at pp. 26-27, 161 So. 3d at 80 (recusal of district attorney not warranted where assistant district attorney was the victim); State v. Cooper, 00-0520, pp. 2-3 (La. App. 4 Cir. 11/29/00), 774 So. 2d 1040, 1042 (mere fact that victim was the cousin of district attorney did not warrant recusal); State ex rel. T.F., 98-3033, p. 4 (La. App. 4 Cir. 4/1/99), 732 So. 2d 125, 127 (recusal improper where victim was shown to be on retainer as legal counsel for the district attorney's office).

We have previously stated that “[i]n cases involving motions to recuse district attorneys, it does not appear that the courts have been willing to equate a professional relationship with a personal interest in the case.” T.F., at p. 3, 732 So. 2d at 127 (citing State v. Bourque, 622 So. 2d 198 (La. 1993) (rev'd on other grounds)). Cf. State v. Hughes, 587 So. 2d 31, 38 (La. App. 2nd Cir. 1991) (district attorney's self-recusal proper where he previously served as legal counsel to defendant, which was a business relationship rising to “personal interest in the cause”).

Moreover, courts have been reluctant to find recusal warranted based on alleged public pressure on the district attorney's office stemming from surrounding media coverage. The defendant in State v. Gatch argued that the district attorney should be recused under La. C.Cr.P. art. 680(1) because a news article reported that Mr. Gatch was on probation for aggravated oral sexual battery when he was arrested for the same crime and his case had been pending for over two years since his arrest. 27,701, p. 2 (La. App. 2 Cir. 2/28/96), 669 So. 2d 676, 678. Even though the court noted that after the media reported on defendant's case, “the prospect of a plea bargain for a lighter sentence and no multiple offender bill appear to have diminished,” it found that the district attorney “is obviously entitled to consider the victim's interests” and recusal was therefore unsubstantiated. Id., at p. 5, 669 So. 2d at 679-80. The defendant in State v. Vaccaro moved to recuse based on an interview the district attorney gave to a local newspaper, wherein he was quoted as stating he would take “personal charge” of the the defendants' prosecution, and that his office “owe[d] it to the citizens ․ to make sure that these two animals do not walk our streets again.” 411 So. 2d 415, 425 (La. 1982). The Supreme Court found that Mr. Vaccaro had not proven the district attorney was personally biased or prejudiced against him under La. C.Cr.P. art. 680(1). See id., at 425-26.

III

The relevant testimony adduced at the hearing on Mr. Stemle's motion to recuse the district attorney is summarized as follows.

Judge Laurie White, spouse of the primary victim, Thomas Wilson III, and chief judge for the Criminal District Court of Orleans Parish, testified that after she learned the police were arresting Mr. Stemle for municipal trespass, she made clear to the officers that she was “very unhappy” with the charge. She then contacted several local media outlets with the admitted intent to bring attention to the matter in the hopes that the charges would be increased. Judge White also contacted the Chief of Police to express her concern that arresting officers in the French Quarter were “undercharging” crimes. She admitted speaking about the incident to members of the district attorney's office, for the purpose of “see[ing] him prosecuted fairly for a felony.” She also spoke to the district attorney himself “in passing” and she testified he said “he would take care of it.”

On cross-examination, Judge White denied that she had either a personal or professional relationship with the district attorney, Leon Cannizzaro. She expressed her personal dislike for the district attorney and displeasure at his criticism of her. When asked on re-direct if she believed Mr. Cannizzaro had a “personal interest” in the outcome, she replied in the affirmative on the basis that he is an elected official and “everything he does in this courthouse is not always based on the good of the community or on a victim or even what's right for the defendant.” Judge White then opined that she did not believe she “could get a fair trial” and stated she had no objection to the district attorney's recusal.

A

Mr. Stemle argued that the district attorney instituted a felony prosecution against him in an attempt to curry favor with Judge White. The district judge ad hoc agreed to the existence of an appearance of impropriety because the victim used her “status” as a judge to acquire “special treatment” from the district attorney.

Victims of crimes, however, are afforded the right to be involved in virtually every stage of the prosecution. See La. R.S. 46:1841, et seq. Notably for our purposes, the statute governing the basic rights of victims requires the district attorney, prior to trial, to “make reasonable efforts to interview the victim ․ to determine the facts of the case and whether the victim ․ is requesting restitution.” La. R.S. 46:1844 C(1). Further, a crime victim has the right to request a consultation with the district attorney's office “in order to obtain [the victim's] view” with regard to the disposition of the case, whether by dismissal, plea, or trial, and the use of sentencing alternatives, such as incarceration, probation, community service, or payment of restitution to the victim. La. R.S. 46:1844 D. Thus, we conclude that the interactions between Judge White and members of the district attorney's office, including the district attorney himself, did not raise any appearance of impropriety. Indeed, Judge White exercised the rights afforded to all crime victims, regardless of their “status.”

Moreover, there is no evidence of any personal animosity towards the defendant, cf. King; Synder, or that the district attorney had such a personal or professional relationship with Judge White that it conflicted with the fair and impartial administration of justice, see Ellis; Cooper.⁵ Moreover, there is not any media coverage of the incident prior to the felony indictment which raises a valid basis for recusal. Media coverage of crime and victims of crime is not at all an unusual occurrence. As the Supreme Court noted, prosecutors “need not be entirely neutral and detached” and in fact, they are “permitted to be zealous in their enforcement of the law.” State v. Griffin, 14-1214, p. 11 (La. 10/14/15), 180 So. 3d 1262, 1271 (quoting State v. Ortiz, 11-2799, p. 6 (La. 1/29/13), 110 So. 3d 1029, 1033). And, as discussed above, a district attorney is permitted, and in certain circumstances required, to take a victim's viewpoint into account. See La. R.S. 46:1844; see also Vaccaro; Gatch.

B

There is no evidence in the record before us that the events which transpired in this case were so out of place as to demonstrate bias and prejudice on the part of the district attorney. Mr. Stemle, on whom the burden is placed, did not establish that it is in fact an uncommon practice for cases to be upgraded from misdemeanors to felonies, or that it is unusual for a district attorney to meet with a crime victim and take his or her views into consideration. No members of the district attorney's office testified that such practices were exceptional. In fact, the only testimony in the record reveals a lack of any relationship between the district attorney and Judge White which would reasonably result in preferential treatment towards her.

In sum, we do not find that Mr. Stemle has demonstrated that he was “treated differently in the management of his case.” Ellis, at pp. 26-27, 161 So. 3d at 80. Given that the defendant failed to carry his burden of proof, the trial judge erred in granting the motion to recuse. We thus vacate the ruling and remand for further proceedings.

CHIEF JUDGE JAMES F. MCKAY, III

TOBIAS, J., CONCURS IN THE RESULT AND ASSIGNS REASONS.

JUDGE MAX N. TOBIAS, JR.

I respectfully concur in the result to grant the writ application and reverse the trial court's decision.

The 1921 Louisiana Constitution, Article VII, § 56, stated in pertinent part that the attorney general and his assistants:

shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for assertion or protection of the rights and interests of the State. They shall exercise supervision over the several district attorneys throughout the State, and perform all other duties imposed by law.” [Emphasis supplied.]

Although the office of district attorney was recognized under the 1921 Louisiana Constitution, the powers and authority of the district attorney were not specified. See 1921 La. Const. Art. VII, §§ 58, et seq.

After much wrangling, the delegates to the 1973 Louisiana Constitutional Convention limited the powers of the attorney general over district attorneys and his authority to intercede in criminal prosecutions. Beginning at midnight on 31 December 1974, the attorney general was defined and empowered as follows:

There shall be a Department of Justice, headed by the attorney general, who shall be the chief legal officer of the state.․ The assistant attorneys general shall be appointed by the attorney general to serve at his pleasure.

As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and (3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action. [Emphasis supplied.]

1974 La. Const. Art. IV, § 8.

The 1974 Constitution for the first time defined the powers and authority of a district attorney; La. Const. Art. V, § 26, now states in pertinent part:

(A) Election; Qualifications; Assistants. In each judicial district a district attorney shall be elected for a term of six years. He shall have been admitted to the practice of law in the state for at least five years prior to his election and shall have resided in the district for the two years preceding election. A district attorney may select assistants as authorized by law, and other personnel.

(B) Powers. Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury. He shall perform other duties provided by law. [Emphasis supplied.]

From the foregoing constitutional language, one observes that a district attorney is now the chief criminal prosecutorial official in a judicial district and the powers and authority of the attorney general to intervene in criminal prosecutions is limited and restricted.

The vast constitutional power granted to district attorneys (prosecutorial discretion) to charge persons with crimes of a more serious nature beyond those that the accused was arrested and charged by the police is well-known.

Thomas Wilson, III (Mr. Wilson”), was the primary victim. His spouse, Judge Laurie White, is a judge on the court in which the defendant is now charged.¹ She has expressed her displeasure and dislike for the district attorney. The defendant was formerly charged with a misdemeanor in Municipal Court and is now charged with a felony in district court arising out of the same incident. Judge White publically expressed her displeasure with the prosecutor's decision to charge the defendant with a misdemeanor in Municipal Court. No evidence establishes that Mr. Wilson agrees with his spouse or disagrees with the original charge by the police or the subsequent recharging of the defendant with a more serious charge.

I note the absence of formal sworn testimony in the record by the district attorney or one of the district attorney's assistants that demonstrates any sort of prejudice toward the defendant or that the prosecutorial staff was caving in the desires of the victim's spouse.

It is well-known that victims frequently disagree with the way a prosecution is being handled. Such does not prove bias or establish any of the grounds for recusal of the district attorney and his office under La. C.Cr.P. art. 680.

A district attorney always has a professional relationship with the judges of the courts within that judicial district. Sometimes that relationship is good; sometimes the relationship can be bad, even very bad. A district attorney may have a personal relationship with the judges within the district attorney's judicial district; such is certainly more common in small judicial districts. The issue is not the animosity between a judge who sits in the judicial district of the district attorney on the one hand and a district attorney (or an assistant district attorney) on the other. Rather, the recusal issue is whether the defendant is only being prosecuted because the district attorney has animosity towards the defendant of such a personal nature that his impartiality can be questioned.

In sum, I find that the Orleans Parish District Attorney need not be recused in this case because the defendant has not shown appropriate evidence that he must be.

FOOTNOTES

1.   But see La. C.Cr.P. art. 61 (District attorney's authority is “[s]ubject to the supervision of the attorney general.․”); see also La. Const. art. IV,§ 8. Additionally, while the district attorney may institute prosecution of a felony by indictment or information, the grand jury is the exclusive method by which a prosecution may be instituted when the charged offense is punishable by death or life imprisonment. See La. Const. art. I, § 15; La. C.Cr.P. art. 382 A.

2.   If the municipal and felony charges constitute the same offense under the “same elements” test articulated in Blockburger v. United States, 284 U.S. 299 (1932), then the municipal ordinance is preempted by the state statute. See City of Baton Rouge v. Ross, 94-0695, p. 20 (La. 4/28/95), 654 So. 2d 1311, 1324.

3.   The term “district attorney” includes a municipal prosecuting officer, who enjoys the same prosecutorial discretion as the district attorney for criminal district court. See La. C.Cr.P. arts. 7 and 943(5).

4.   This opinion was decided under the prior statute governing recusal of the district attorney, former La. C.Cr.P. art. 310 (1928), which required recusal “if said district attorney shall have a personal interest adverse to the prosecution.” Plaquemines Parish Comm'n Council v. Perez, 379 So. 2d 1373 (La. 1980).

5.   In fact, Judge White specifically denied having a personal or professional relationship with the district attorney even though she did express her belief that he had a personal interest in “everything he does.”

1.   Judge White stated during the hearing that she did not think that she could get a fair trial because Mr. Cannizzaro's office is prosecuting the case. It is my view and understanding that the issue is one of whether the accused can get a fair trial.

JUDGE PAUL A. BONIN