STATE v. NEVEAUX (2020)

Writ denied.

I agree that defendant's writ application should be denied because defense counsel has failed to show from a bare series of unsuccessful defense motions that any ground for recusing the district court judge exists. See generally Rippo v. Baker, ––– U.S. ––––, ––––, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017) (“Recusal is required when, objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ ”), quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). I write separately to emphasize that defense counsel did not even seek appellate review of some of the rulings counsel characterizes as evidence of the district court judge's bias and/or incompetence. I also note that defense counsel's regular appearance in court without sufficient preparation may have played a role in the district court's unfavorable rulings. Preparation for court is never optional, but counsel should be particularly mindful of competent representation when defending a client accused of first-degree murder and, importantly, who faces capital punishment. See La. Rules of Professional Conduct Rule 1.1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”)

Although defendant retained counsel, he was later declared indigent. I note that it is in the district court's sound discretion under these circumstances to appoint a second, highly qualified and capital-certified co-counsel. Cf. State v. Jones, 97-2593, p. 5 (La. 3/4/98), 707 So.2d 975, 978 (“In the instant case, the factors weigh heavily in favor of appointing second counsel. This is a capital case and the presence of co-counsel would best serve the interests of all concerned, including the defendant, the IDB, and the public fisc, as well as the State's interest in ensuring that the defendant receives a fair trial with a minimum of errors.”). I strongly urge the district court to consider making such an appointment under these circumstances (if it has not already done so) to better safeguard this capital defendant's Sixth Amendment right to the effective assistance of counsel and protect the State's interest in ensuring defendant receives a fair trial.

Johnson, C.J., would grant. Crichton, J., concurs and assigns reasons.