STATE OF LOUISIANA v. DVEIL DESHON FREEMAN (2023)

I agree with the denial of the writ application in this matter. However, I write separately to express my grave concern regarding the circumstances under which the trial court granted bail in this post-conviction matter. The trial court failed to take into account numerous factors provided for in La. C.Cr.P. art. 316.¹ In this case, defendant had been convicted of second degree murder, the second most serious offense in the criminal code, along with numerous offenses involving the distribution of controlled dangerous substances. See La. C.Cr.P. art. 316(1). The court did not consider defendant's violent criminal record prior to the convictions at issue in the post-conviction matter. See La. C.Cr.P. art. 316(3). And perhaps most alarming, the court did not address the fact that defendant had been convicted of murdering a potential witness against him, making defendant a danger to the community. See La. C.Cr.P. art. 316(5). These factors all weigh in favor of denying bail, as the trial court had prior to defendant's initial trial in this matter.

In light of these omissions on the part of the trial court judge, there may be some question whether the State can receive a fair and impartial ruling from this judge as to any issue related to this case. In my view, these circumstances may merit an order of recusal of this judge. See La. C.Cr.P. arts. 671(A)(1) (“The judge is biased, prejudiced, or personally interested in the cause to such an extent that the judge would be unable to conduct a fair and impartial trial.”); 671(B) (“In a criminal cause, a judge of any trial or appellate court shall also be recused when there exists a substantial and objective basis that would reasonably be expected to prevent the judge from conducting any aspect of the cause in a fair and impartial manner.”).

FOOTNOTES

1.   La. C.Cr.P. art. 316 provides,The amount of bail shall be fixed in an amount that will ensure the presence of the defendant, as required, and the safety of any other person and the community, having regard to:(1) The seriousness of the offense charged, including but not limited to whether the offense is a crime of violence or involves a controlled dangerous substance.(2) The weight of the evidence against the defendant.(3) The previous criminal record of the defendant.(4) The ability of the defendant to give bail.(5) The nature and seriousness of the danger to any other person or the community that would be posed by the defendant's release.(6) The defendant's voluntary participation in a pretrial drug testing program.(7) The absence or presence in the defendant of any controlled dangerous substance.(8) Whether the defendant is currently out on a bail undertaking on a previous felony arrest for which he is awaiting institution of prosecution, arraignment, trial, or sentencing.(9) Any other circumstances affecting the probability of defendant's appearance.(10) The type or form of bail.

Crichton, J., additionally concurs and assigns reasons.