LOUISIANA PUBLIC DEFENDER BOARD

 

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IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION FOR JUDICIAL RECUSAL

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution to order recusal of the trial court in this case. In support of his motion, Mr. CLIENT states as follows:
1. "Courts, like Caesar's wife, must be not only virtuous but above suspicion." U'Ren v. Bagley, 118 Or. 77, 245 P. 2d 1074, 1075 (1926). The question of disqualification is not whether a judge actually is biased, for a judge must be disqualified, "without finding fault . . . so that even the appearance of impropriety can be avoided." Collins v. Dixie Transport Inc., 543 So. 2d 160, 166 (Miss. 1989) (emphasis in original) (quoting Haralson v. Haralson, 483 So. 2d 378, 380 (Miss. 1986)); see State v. LeBlanc, 367 So. 2d 335, 341 (La. 1979) (courts should only be impartial, but above the suspicion of partiality). As the federal courts have held:
The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his impartiality on the basis of all the circumstances.

Rice v. McKenzie, 581 F.2d 1114, 1116-17 (4th Cir. 1978). See also Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir. 1983) (disqualification required "if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.").
2. Therefore, even when this Court may be sure that the Court will strive to be absolutely impartial, disqualification is rightly required so that "justice [will] satisfy the appearance of justice." In Re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 2d 942, 946 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 (1954) (emphasis supplied)). This rule has been jealously guarded by the appellate courts, fully realizing that "this `stringent rule may sometimes bar judges who have no bias and who would do their very best to weigh the scales of justice equally between contending parties.'" Marshall v. Jerrico, Inc., 446 U.S. 238, 243, 100 S. Ct. 1610, 1611, 64 L. Ed. 2d 182 (1980) (quoting In Re Murchison, 349 U.S. 133, 136 (1955)).
3. In this case, Judge MARY DOE is in charge of the manner in which grand jury forepersons are selected in this parish--and was at the time the foreperson was selected to preside over Mr. CLIENT's grand jury. Mr. CLIENT notes that it is irrelevant for purposes of his Motion to Recuse whether Judge DOE presided over the grand jury that indicted Mr. CLIENT. See State v. Elie, 232 So. 2d 507, 511-512 (La. 1970) (defense challenge to illegally convened grand jury cannot be heard by any judge in the judicial district, as they all had role in selection process). Judge DOE testified to the manner in which she, when she was Chief Judge and in charge of grand jury foreperson selection, would select forepersons:
Well, normally, you get your list and try to determine from those individuals who would be the best person for that particular slot. And then you go down. You know them, that's fine.

(8/16/94 Hearing, at 19).
Of course, this is precisely the system that the courts have rejected repeatedly. Johnson v. Puckett, 929 F.2d 1067, 1072 (5th Cir. 1991); see also Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979); Guice v. Fortenberry, 661 F.2d 496, 505 (5th Cir. 1981) (en banc). Indeed, this Court recently took cognizance of the issue and granted relief to a condemned inmate in order that he might show that his grand jury foreperson may have been selected in a racially discriminatory manner. State ex rel. Gillis v. Whitley, 629 So. 2d 343, No. 93-KD-2709 (La. Nov. 2, 1993).
4. Judge DOE must be recused from considering whether she has herself discriminated. It would seem that State v. Elie, 232 So. 2d at 507, is right on point in this regard. In that case, capital defendants moved to quash the indictment based on the district judges' improper selection of persons to serve on the grand jury. Id. at 507-08. This Court held that the judge should refer the issue to another judge, one from outside of the judicial district, for an evidentiary hearing. Id. at 511-12. There can be no doubt that Judge DOE is disqualified from determining whether she has herself acted in a racially biased manner and that she must be recused from hearing Mr. CLIENT's Motion to Quash.
5. In this case, Judge DOE was the magistrate who issued the search warrant in this case. Mr. CLIENT has filed a motion challenging the warrant as being void because it was not issued by a neutral and detached magistrate and lacked probable cause in the supporting affidavit. Since there is merit to the allegations made by the defense, Judge DOE cannot continue to sit on the case.
6. The defense offers two theories why Judge DOE was not a neutral and detached magistrate in this case. One, her selection as magistrate was open to patent judge-shopping, since the law enforcement officers could pick her to issue the warrant over the other six judges in the district:
Q. [If] . . . the police needed a warrant, they could come and look out for you. Couldn't they?

A. Yes. Yes. . . .

(8/16/94 Hearing at 11.)
Indeed, it would appear that Judge DOE was hand-picked in this case. In any event, this would be an issue that would have to be resolved at a hearing, at which Judge DOE would be a necessary witness.
7. Two, any officer wanting to make sure he got a warrant would obviously want to hand-pick Judge DOE, since Judge DOE is not a neutral and detached magistrate--she has never denied the police a warrant in all her sixteen years on the bench:
Q. Judge, tell us, if you would, over the years since you've been a judge, since 1978 or whenever it was, exactly which cases you've denied [a] search warrant when the police approached you with an affidavit that they thought established probable cause? Have there been any such cases?

A. I don't know any cases that that's occurred.

(8/16/94 Hearing at 16).
8. As to whether there actually was probable cause to issue the warrant, Mr. CLIENT introduced the warrant and supporting affidavit. There is nothing in the affidavit in support of the warrant that supports probable cause. The question becomes one of whether Judge DOE heard additional testimony that would validate the warrant. She would have to be a witness to this. If called to testify, she would apparently say that she relied exclusively on the affidavit.
9. Until the trial court put a stop to it, because Judge DOE was becoming uncomfortable, it became clear that Judge DOE could not identify facts in the affidavit that would establish probable cause for any of the evidence for which she authorized a search. For example, when asked what in the affidavit would justify authorizing the search for blood, she said "I don't remember. I mean, I have no idea."
(8/16/94 Hearing at 16).
10. If she was indeed not a neutral and detached magistrate at the time of the warrant, and if she additionally got the assessment of probable cause wrong when she was sitting as a magistrate, it is too much to ask her to rule now that her warrant was unconstitutional. Indeed, there is the appearance of impropriety where a judge has once clearly not been "neutral" and "detached" in a case, where the public is now expected to think her impartial. There can be no appearance of justice where Judge DOE was biased in the manner in which she issued the warrant, and continues to sit on this case.
11. In this case, on Monday, May 17, 1993, Mr. CLIENT appeared before Judge DOE, who was the judge for arraignments, and "said he wanted to plead guilty because he is guilty in connection with a March 20 triple homicide." See Suspect Whisked Away after Courtroom Outburst, The Local Zealot, at 10 col. 5. The State has notified the defense that it intends to use this statement against Mr. CLIENT. There are two reasons Judge DOE must be recused because of her participation at Mr. CLIENT's arraignment.
12. First, Judge DOE will be a witness at Mr. CLIENT's hearing to suppress the statement. It is obvious, based on the statements allegedly made by Mr. CLIENT, that he was under a great deal of emotional strain and duress at the time the statement was made. In addition, the defense will show that his then-counsel was per se ineffective because he lacked the requisite number of years of experience to handle a capital case. How Judge DOE could let this happen in her courtroom and the precise dynamics of what happened that day are all matters to be taken up at a suppression hearing. Surely Judge DOE cannot sit at the hearing.
13. Second, the defense may choose to use Mr. CLIENT's statement, if it is not suppressed, to show remorse. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 498 (1990) (Scalia, J., dissenting). Mr. CLIENT has a right to call the most effective witnesses to defend his life, see Gradsky v. State, 137 So. 2d 820, 821 (Miss. 1962) (Sixth Amendment]
right to confrontation and compulsory process guarantees the accused the right to have compulsory process for obtaining witnesses in his favor), and who better than a trial judge with sixteen years of experience on the bench. See 6 Wigmore, Evidence §1909 (Chadbourn Rev. 1976) (judges have always been considered competent witnesses); Report of the Special Committee on the Propriety of Judges Appearing as Witnesses, 36 American Bar Association Journal 630, 632 (1950). Judge DOE has a wealth of experience dealing with persons accused and found guilty of crimes, as well as people accused of crimes and found not guilty; it could be critical to Mr. CLIENT's defense to know how many defendants attempted to plead guilty at their arraignment and whether Judge DOE feels that this is unusual.
14. The defense team's need to investigate the circumstances surrounding Mr. CLIENT's statement at his arraignment exposes an insurmountable burden to the defense should Judge DOE preside over this case, for beyond the fact that Judge DOE will testify to facts within her personal knowledge in this case, there is the question of how the defense may prepare for the hearings and the trial. Defense counsel obviously needs to talk to potential witnesses. However, Judge-DOE-the-witness has stated that she would not talk to counsel:
Q. Now, what would you do if I came to you, sir, without the District Attorney present and said I wanted to talk to you privately without the D.A. present, [about] the prospect of you being a witness in the case? You wouldn't do that?

A. I'm not going to talk to you.

(8/16/94 Hearing at 17). Thus, by her continued involvement as a judge, the defense is denied access to Judge DOE as a witness.
15. Judge DOE is absolutely correct that she should not talk to the defense team, for she is prohibited from speaking with the defense regarding this case on any matter that might be seen as important to the defense, unless the State's representatives are present. See Canon 3(A)(6), Code of Judicial Conduct (judge should not permit private interviews designed to influence his or her judicial action in a case). Of course, this conflicts with Mr. CLIENT's clear right to investigate his case and talk to all potential witnesses. United States v. Walton, 602 F.2d 1176, 1179-80 (4th Cir. 1979) ("a defendant is entitled to have access to any prospective witness, although in the end the witness may refuse to be interviewed."); accord e.g., United States v. Brown, 555 F.2d 407, 425 (5th Cir. 1977); United States v. Scott, 518 F.2d 261, 268 (6th Cir. 1975); United States v. Murray, 492 F.2d 178, 194 (9th Cir. 1973); United States v. Long, 449 F.2d 288, 295 (8th Cir. 1971). There can be no doubt that the conflict should be resolved in Mr. CLIENT's favor, and Judge DOE must be recused from this case.
16. In this case, Judge MARY DOE issued the warrant for Mr. CLIENT's arrest. According to the police, Judge DOE has "got a [police] scanner and she supports us a hundred percent (100%) and she likes to know what we're doing. . . ." (8/16/91 Hearing, at 72) As will appear at a hearing on this matter, Judge DOE is so biased towards law enforcement that she cannot be considered a neutral and detached magistrate, for purposes of the Fourth Amendment warrant requirement.
17. The Fourth Amendment provides a suspect with the right to a "neutral and detached" magistrate who is interposed between the suspect and the police prior to the issuance of any warrant. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948); Coolidge v. New Hampshire, 403 U.S. 443 (1971); Connally v. Georgia, 429 U.S. 245 (1977); Lo-Ji Sales Inc. v. New York, 442 U.S. 319 (1979). A magistrate is a member of the judicial branch. He or she cannot act as if he is a member of the executive at the same time. See, e.g., Lockett v. State, 459 So. 2d 246 (Miss. 1984) (magistrate engaged in law enforcement); In re Anderson, 447 So. 2d 1275 (Miss. 1984) (same); People v. Payne, 424 Mich. 475, 381 N.W.2d 391 (1985), cert. denied, 106 S. Ct. 3298 (1986) (magistrate also acting as deputy sheriff); Vaughn v. State, 160 Ga.App. 283, 284, 287 S.E.2d 277, 278 (1981) (same). In this case, the evidence will show that Judge DOE sits and listens to her police scanner, which might even be improper for a regular citizen or a person not related to law enforcement, and has intimate personal knowledge of the progression of police investigations long before any officer might appear to request a warrant.
18. Indeed, the law is clear that a magistrate cannot be involved, or seem to be involved, in the investigation against the suspect. This creates an independent bar to her issuing the warrant. See McAllister v. State, 157 Ga.App. 158, 276 S.E.2d 669, 671 (1981); Thomason v. State, 148 Ga.App. 513, 251 S.E.2d 598 (1978). Finally, the magistrate cannot favor the police to the extent that he or she agrees to everything that they do, without making a truly independent evaluation of probable cause. See United States v. Savoca, 761 F.2d 292 (6th Cir. 1985), cert. denied, 474 U.S. 852 (1985); Kaylor v. Superior Court, 108 Cal.App.3d 451, 166 Cal.Rptr. 598 (1980); State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975); Rooker v. Commonwealth, 508 S.W.2d 570 (Ky. 1974). Again, a person who publicly announces her "100 percent" support for the police cannot project the appearance of propriety, neutrality and detachment which is required of the magistrate.
19. It is therefore apparent that Mr. CLIENT should properly call Judge DOE as a witness at the forthcoming evidentiary hearing on the validity of the warrant issued against him. A judge has always been competent as a witness. See 6 Wigmore, EVIDENCE §1909 (Chadbourn Rev. 1976); Report of the Special Committee on the Propriety of Judges Appearing as Witnesses, 36 American Bar Association Journal 630, 632 (1950); Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir. 1982), rev'd. on other grounds, 466 U.S. 668 (1984) (judge can be called to testify about "personal knowledge of historic facts or expert opinions"); Gajewski v. United States, 321 F.2d 261 (8th Cir. 1963), cert. denied, 375 U.S. 968, 84 S. Ct. 486, 11 L. Ed. 2d 416 (1964); United States v. Maloney, 241 F. Supp. 49 (W.D. Pa. 1965). The Sixth Amendment right to confrontation and compulsory process:
guarantees that '[i]n all criminal prosecutions the accused shall have a right . . . to have compulsory process for obtaining witnesses in his favor. . . ." [The] accused cannot be denied this right on the ground that it may embarrass the attorney or violate etiquette of the court.

Gradsky v. State, 137 So. 2d 820, 821 (Miss. 1962).
20. "There is no doubt that if this Court were to be a witness at a hearing, recusal would be necessary. Section 455 of 28 U.S.C. provides that a judge should disqualify himself if '[h]e . . . [i]s to the judge's knowledge likely to be a material witness in the proceeding.'" United States v. Rivera, 634 F. Supp. 204, 210 (S.D. N.Y. 1986). Therefore, with all the respect that is due, Mr. CLIENT suggests that this Court must recuse itself from the proceedings.
WHEREFORE Mr. CLIENT respectfully moves that this Court recuse itself from this case.
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