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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 DISCOVERY OF ANY
POSSIBLE BASIS FOR DISQUALIFICATION OF THE PROSECUTING ATTORNEY

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 disclosure of any possible basis for the disqualification of the prosecuting attorney acting in this case. In support of his motion, Mr. CLIENT states as follows:
1. The Government is not just another litigant. Rather, the National District Attorneys Association has defined the role of a public prosecutor in our system of justice as follows:
Each decision [the prosecutor] makes has tremendous impact on the lives of individuals involved, if not on the entire community.

* * *

Prosecutors must strive diligently to raise the ethical, technical, and professional standards of all prosecutors throughout the nation. A single unprofessional, corrupt, or unscrupulous prosecutor can undo the fine work being done by the many thousands of dedicated prosecutors throughout the country. The modern prosecutor cannot simply be the defender of the status quo. He cannot be content to simply perpetuate himself in office by withdrawing from the front line battle and practicing old routines. He must be a respected voice in the community with unquestioned integrity. From that operating base he must become a respected voice in the legislative body of his jurisdiction. The prosecutor must truly represent "the people" and conduct himself in a way to make that obvious when he rises to state his views in legislative halls.

Healy & Manak, eds., THE PROSECUTOR'S DESKBOOK, 3-4 (N.D.A.A.).

2. As a result of this role, public prosecutors owe a higher duty to the justice system. The duties of the prosecuting attorney were well-stated in the classic opinion of Justice Sutherland fifty-five years ago. The interest of the prosecutor, he wrote:

is not that he shall win a case, but that justice be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). The ABA Standards on the Prosecution Function state that "the duty of the prosecutor is to seek justice, not merely to convict." Standard 3-1.1(a); accord Plaquemines Parish Com'n Council v. Perez, 379 So. 2d 1373, 1387 (La. 1980) (Dennis, J., dissenting); see also State v. Allen, 539 So. 2d 1232, 1235 (La. 1989) ("in conducting a criminal case the prosecuting attorney must be fair and impartial, and see that the defendant is not deprived of any constitutional or statutory right..."); State v. Locklear, 241 S.E. 2d 65, 69 (N.C. 1978) ("[p]rosecuting attorneys owe honesty and fervor to the State and fairness to the defendant" (emphasis supplied)).
3. The public prosecutor, who is endowed with immense authority, has a concomitant obligation as a public official to seek to improve the justice system, and foster the public's faith in the impartiality of justice. The National District Attorneys Association admonishes its members:
The prosecutor must place the rights of society in a paramount position . . . in the approach to the larger issues of improving the law and making the law conform to the needs of society.

National Prosecution Standards at § 1.3 (D). It goes without saying that an "improved" legal system is one where the citizenry feels that the prosecution is dealing with a case fairly and without favor:
Nothing will detract more from the proper administration of the law than for the people to be impressed that the courts or prosecuting officers are unfair in their treatment of those charged with the law's violation.

State v. Cox, 246 La. 748, 167 So. 2d 352, 358 n. 6 (1964) (quoting State v. Nicholson, 7 S.W. 2d 375 (Mo. App. 1928)).
4. In Louisiana, a prosecutor must be recused when she has a "personal interest adverse to the prosecution." Plaquemines Parish Com'n Council v. Perez, 379 So. 2d 1373, 1376 (La. 1980). A personal interest adverse to the prosecution is "any interest on the part of the district attorney which was adverse to the state's interest in impartial justice." Id. As the Court observed:
The district attorney is a quasi judicial officer. He represents the State, and the State demands no victim. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. . . . Therefore he should not be involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused's trial fairly and impartially.

Id. at 1376-77.
5. For these policy reasons, it occasionally becomes necessary to disqualify an attorney from participating in a case. "[D]isqualification enforces the ethical obligation that each attorney owes to a client and to the bar to avoid impropriety as well as the appearance thereof." Gray v. State, 469 So. 2d 1252 (Miss. 1985) (emphasis supplied); Sharplin v. State, 330 So. 2d 591, 594 (Miss. 1976). Public prosecutors have to remove themselves from cases rather more often than other attorneys. Unlike the lawyer who is bound only by the rules of the Bar, it has long been recognized that a prosecutor has a "duty to . . . conduct himself with due regard to the proprieties of his office." Adams v. State, 30 So. 2d 593, 597 (Miss. 1947); accord, Jenkins v. State, 136 So. 2d 580, 582 (Miss. 1962); A.B.A. Standards, The Prosecution Function, Section 3-1.1(d). The primary duty in assessing the need for disqualification rests with the public prosecutor himself.
6. If a public prosecutor does not remove himself in an appropriate situation, the trial court comes under an obligation to do so. "[C]ourts, as well as the bar, have a responsibility to maintain public confidence in the legal profession. This means that a court may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety." Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322 (9th Cir. 1976); Richardson v. Hamilton International Corp., 469 F.2d 1382 (3d Cir. 1972). Of course, it is error for a court to fail to declare disqualification if the facts establish that standards of professional conduct have been violated. International Business Machine Corp. v. Levin, 579 F.2d 271, 279 (3rd Cir. 1978).
7. In considering whether a prosecuting attorney should be disqualified, courts have typically been concerned with responding to any conduct which could erode public confidence in the judicial system or the legal profession. See, e.g., Woods v. Covington County Bank, 537 F.2d 804 (5th Cir. 1976); Spragins v. Huber Farm Service, Inc., 542 F. Supp 166, 173 (N.D. Miss. 1982). Consequently "proof of actual wrongdoing is not required." Norton v. Tallahassee Memorial Hospital, 689 F.2d 938, 941 (11th Cir. 1982); see also Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976) ("courts have disqualified attorneys under the appearance of evil doctrine even though the record was free of any evidence of actual wrongdoing").
8. In fulfilling all these functions, the prosecuting attorney must exercise his or her discretion wisely and fairly. Personal prejudices may not enter into the case. A prosecutor who has expressed particularly vitriolic personal opinions cannot, in the eyes of the public, be expected fairly to prosecute a case which involves the issues on which the prosecutor has publicly expounded.
9. "Where a potential issue regarding disqualification exists, the prosecution shares equally with the defendant the duty of bringing the matter to the attention of the trial court." Gray v. State, 469 So. 2d 1252, 1255 (Miss. 1985). The prosecution is required to "make a timely disclosure to defendant of his conflicting interests or recusal grounds" so that "its discovery not be a fortuitous event." State v. Valdes, 547 So. 2d 9, 11 (La. App. 4th Cir. 1989), writs denied, 552 So. 2d 379 (La. 1989). The Court in Valdes set out the following guidelines for prosecutors: (1) a member of the district attorney's office should disclose to the court, on record, the nature of the conflict; (2) the disclosure should be made at the initial stages of the proceedings against defendant, preferably at the arraignment; (3) defense counsel should receive timely written notice of both the substance and nature of the disclosure made to the court. Id. at n.5. No waiver can be inferred from the silence of the accused if disclosure is not made in a timely fashion:
Although a judge may accept a waiver of disqualification . . . the waiver "may be accepted [only if] it is preceded by a full disclosure on the record of the basis of the disqualification."

United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985) (judicial recusal). "Presuming waiver from a silent record is impermissible. The record must show . . . waiver." Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). It is against this backdrop that we consider whether the prosecutors need to disqualify themselves in this case, or whether a hearing should be held on the matter. To provide but samples of the various considerations which might enter into the disqualification of a prosecuting attorney, we consider some of the representative case law below. Of course, this should not be considered all-inclusive, and if there are other reasons why the prosecuting attorney should be disqualified from the case, they should also be disclosed.
10. Some specific grounds for recusation are set out in the code of criminal procedure. Article 680 states:
A district attorney shall be recused when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice;
(2) Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, or to the party who is the focus of a grand jury investigation, to such an extent that it may appreciably influence him in the performance of the duties of his office; or
(3) Has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney.
La.C.Cr.P. art. 680. An intentional failure of a district attorney to recuse himself when he knows of the existence of clear grounds for his recusal constitutes malfeasance. State v. Perez, 464 So. 2d 737, 745 (La. 1985) (Dennis, J., concurring).
11. Reasons for recusal, (or at least an evidentiary hearing on the issue of whether recusal is warranted), that must be disclosed to the defense, include, but are not limited to the following:
--prosecuting attorney represented defendant, then went to work for prosecuting attorney and was employed by prosecuting attorney's office at time of trial on the matter in which she represented defendant. State v. Brown, 274 So. 2d 381, 382 (La. 1973); State v. Daughtery, 563 So. 2d 1171, 1175-76 (La. App. 1st Cir. 1990); State v. Crandell, 604 So. 2d 123, 128 (La. App. 2d Cir. 1992); State v. Byrd, 491 So. 2d 8790-91 (La. App. 3d Cir. 1986); State v. Brown, 478 So. 2d 600, 605 (La. App. 2d Cir. 1985); State v. Brown, 444 So. 2d 1346, 1350 (La. App. 2d Cir. 1984); see State v. Bell, 346 So. 2d 1090, 1099, 1100 (La. 1977) (prosecuting attorney who represented defendants at first trial may not participate in prosecution of re-trial without evidentiary hearing to show that no privileged information gained from representation was passed on the prosecuting attorney's office); see also State v. Woods, 283 So. 2d 753, 754 (La. 1973) (prosecuting attorney, while public defender, represented defendant and then went on to prosecute case as assistant prosecuting attorney);
--prosecuting attorney represented children of victim by former marriage in connection with their interest in victim's succession. State v. Edwards, 420 So. 2d 663, 672 (La. 1982);
--prior to bill of information against defendant, prosecuting attorney served as legal counsel for defendant on royalty interests of record, song writing and publishing rights and produced record for defendant. State v. Hughes, 587 So. 2d 31, 35-56 (La. App. 2d Cir. 1991);
--prosecuting attorney entrapped
defendant by having defendant transferred to another parish's jail and informing him how to escape. State v. Johnston, 546 So. 2d 1231, 1241 (La. App. 1st Cir. 1989);
--prosecuting attorney related to victim. State v. West, 561 So. 2d 808, 810-811 (La. App. 2d Cir. 1990);
--prosecuting attorney, in prosecution for arson with intent to defraud where theory of case was that defendant needed money, represented defendant in defendant's bankruptcy proceedings. State v. Allen, 539 So. 2d 1232, 1235 (La. 1989);
--prosecuting attorney and victim were friends and prosecuting attorney was a witness to fact that defendant was beaten by police officers after arrest. State v. Bender, 598 So. 2d 629, 633-634 (La. App. 3d Cir. 1992);
--prosecuting attorney reneged on agreement that prior prosecuting attorney made with defendant to re-submit defendant's case to grand jury. State v. Daniels, 552 So. 2d 781, 784 (La. App. 1st Cir. 1989);
--prosecutor failed to disclose the fact that one of the jurors was his neighbor. State v. Deboue, 496 So. 2d 394, 401-402 (La. App. 4th Cir. 1986);
--prosecuting attorney represented victim in previous civil matter. State v. Gray, 526 So. 2d 1268, 1271 (La. App. 3d Cir. 1988);
--prosecuting attorney represented defendant in previous criminal matter. State v. Collins, 470 So. 2d 553, 555-556 (La. App. 1st Cir. 1985);
--personal animosity existed between prosecuting attorney and the defendant; hearing required even though prosecuting attorney claims animosity no longer exists. State v. Marcal, 388 So. 2d 656, 659-660 (La. 1980); State v. Snyder, 237 So. 2d 392, 395 (La. 1970);
--prosecuting attorney's improper use of psychiatrist's report to gain information about the factual circumstances of the crime. State v. Argo, 476 So. 2d 409, 411 (La. App. 2d Cir. 1985);
--prosecuting attorney participated in investigation of crime and observed the arrest of the defendant. State v. Green, 476 So. 2d 859, 861-862 (La. App. 2d Cir. 1985);
--prosecuting attorney was victim of alleged defamatory words in prosecution for criminal defamation and perjury. State v. Snyder, 277 So. 2d 660, 663 (La. 1972); State v. Cox, 167 So. 2d 352 (La. 1964);
--prosecuting attorney represented snitch co-defendant prior to joining prosecuting attorney's office. State v. Pearson, 296 So. 2d 316 So. 2d 318-319 (La. 1974);
--prosecuting attorney represented bank that defendants were accused of robbing and took statements from defendants after crime had occurred, and hence would be called as witness by the defense. State v. Monk, 315 So. 2d 727, 735-736 (La. 1975);
--prosecuting attorney and his assistants took statements from defendant immediately after defendant's arrest and prosecuting attorney held press conference announcing arrest of defendant. State v. Sheppard, 350 So. 2d 615, 632-633 (La. 1977);
-prosecuting attorney was statutory counsel for victim-school board. State v. Thomason, 353 So. 2d 235, 237-238 (La. 1977);
--prosecuting attorney was victim of crime, must be recused from participating in grand jury investigation of the crime. Parkerson v. Norris, 529 So. 2d 1392 (La. App. 2d Cir. 1988), writ denied, 530 So. 2d 468 (1988).
12. There are many other issues which may come up which may require the disqualification of prosecuting attorneys (or, under certain circumstances, of both the prosecutor and the trial court). As our Supreme Court has noted, "the ethical rules and the jurisprudence impose a broader gloss on the statutory requirement" of recusation. State v. Allen, 539 So. 2d at 1234. For example, in Pope v. State, 345 S.E.2d 831 (Ga. 1986), the trial court's clerk agreed prior to trial to take a job with the District Attorney after the end of trial. This required disqualification. Accord Hall v. Small Business Administration, 695 F.2d 175 (5th Cir. 1983).
13. Consider another possible example: The victim in this case was Officer Fred DOE, a member of the Louisiana State Patrol. It should be disclosed if any member of the prosecution team has ever expressed a public opinion in favor of the execution of those who kill police officers; has ever compared such a crime to "treason" or made it out to be something worse than any other capital offense; has given speeches to, or on behalf of the Highway Patrol or any other similar law enforcement agency; etc. A prosecuting attorney may not prosecute a case where he is so biased against the accused that the accused is "denied . . . the possibility of a fair-minded exercise of the prosecutor's discretion." Ganger v. Peyton, 379 F.2d 709, 712 (4th Cir. 1967); see State v. Marcal, 388 So. 2d at 659-660 (personal animosity existed between district attorney and the defendant, hearing required even though D.A. claims animosity no longer exists). Where the prosecutor is less concerned with justice and the fair administration of a trial than he is with his professional reputation, his need for a boost in any forthcoming election, see, e.g., Delaney v. United States, 199 F.2d 107, 115 (1st Cir. 1952) (condemning trial infected by prosecutor's electoral concerns), or the accusations of unethical and illegal conduct surrounding him, the prosecutor must disqualify himself.
14. Also, it is clear that no lawyer may "engage in conduct involving dishonesty, fraud, deceit or misrepresentation. . . ." Louisiana Rules of Professional Conduct, Rule 8.4 (c) (Misconduct); see also Brumfield v. Mississippi State Bar Ass'n, 497 So. 2d 800, 807 (Miss. 1986) ("DR 102 . . . specifically proscribes any conduct involving dishonesty . . . or . . . any other conduct that adversely reflects on his fitness to practice law." (emphasis in original)). The Rules of Professional Conduct "has the force and effect of substantive law." Louisiana State Bar Ass'n v. Harrington, 585 So. 2d 514, 522 (La. 1990). To avoid allegations of hypocrisy, this consideration is particularly true of the prosecuting attorney, since those who prosecute criminals for violations of the law should therefore not be violating the law themselves. Various acts of moral turpitude have been condemned by the courts. See, e.g., State ex rel. Oklahoma Bar Ass'n v. Denton, 598 P. 2d 663 (Okla. 1979) (suspension for possession of marijuana); The Florida Bar v. Chase, 492 So. 2d 1321 (Fla. 1986) (suspension for possession of cocaine); In re Conduct of Howard, 681 P. 2d 775 (Or. 1984) (disciplinary action for involvement in prostitution); In Re Application of Kamin, 262 N.W. 2d 162 (Minn. 1978) (repeated sexual misconduct enough for disbarment); The Florida Bar v. Turner, 369 So. 2d 581 (Fla. 1979) (suspension ordered even after reversal of conviction for sexual misconduct); In Re Crisel, 461 N.E.2d 994 (Ill. 1984) (suspension for dishonesty outside official prosecutorial function); In re Mahr, 556 P. 2d 1359 (Or. 1976) (suspension for shoplifting).
15. Similarly, the courts have recognized that pronounced unethical conduct on the part of a public prosecutor must result in his disqualification or removal from office even -- and perhaps particularly -- where the unethical acts are committed outside the public functions of the office. As one court has observed:
Here, also, . . . it seems manifest that wrongs that render a man unfit to hold the office of the district attorney need not be committed in the immediate performance of, but may arise in conduct wholly outside, his official duties. There may thus be revealed defects of character so heinous as to render one utterly unfit to perform the delicate and important functions of a district attorney.

Attorney General v. Tufts, 131 N.E. 573, 576 (Mass. 1921) (emphasis supplied); accord, Moore v. Strickling, 33 S.E. 274, 278 (W.Va. 1899) (prosecuting attorney removed from office for persistent and flagrant immorality); Rhodes v. Rhodes, 420 So. 2d 759, 761 (Miss. 1982) (attorney should "be disciplined for misconduct outside of his professional capacity [where] such misconduct is of a serious nature, and tends to show him to be an unfit person to be an attorney"); Disciplinary Bd. of Hawaii Supreme Court v. Bergan, 592 P.2d 814, 818 (Hawaii 1979). A prosecuting attorney is disqualified from prosecuting a particular case where there are charges of illegal conduct arising in that case or one similar, or where the attorney has engaged in serious misconduct. See, e.g., United States v. Dinitz, 538 F.2d 1214 (5th Cir. 1976) (court within its discretion for refusing to permit participation at retrial of counsel who engaged in misconduct at first trial).
16. Various kinds of unethical behavior can act as a bar to a prosecuting attorney prosecuting a case. Many of the examples are to be found in the Louisiana Rules of Professional Conduct. One specific example of a possible basis for disqualification here would be the prosecuting attorney's intentional violation of the constitutional rights of an accused in a capital case:
Where a constitutional right, either state or federal, is clear and not fairly open to question, a judicial officer who violates such clear right, by act or omission . . . has acted or failed to act in such judicial way as to give rise to a reasonable doubt as to such judicial officer's ability to act fairly and impartially without bias or prejudice in further proceedings. . . . [T]he public and a party may entertain doubts as to such [judicial officer's] intellectual honesty and objectivity. Where a reasonable person would entertain doubts as to such objectivity . . . recusal shall be required when sought by a party whose constitutional right was [violated].

State of Georgia v. Willie Gamble Jr., Order of July 14, 1989 Order at 42 (Emanuel Co. Ind. No. 26, Jan. 1986).
17. If the prosecuting attorney intentionally committed acts of racial discrimination, that would be an example of a reason for disqualification. This might arise from the prosecutor's intentional discrimination in other trials, removing black persons from jury service. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); see also State v. Brown, 371 So. 2d 751 (La. 1979) and State v. Washington, 375 So. 2d 1162 (La. 1979) (only two reported Swain reversals, each prosecuted by same prosecutor in East Baton Rouge Parish). Under such circumstances, a judicial officer should "be recused because of an appearance of bias and prejudice which would cause doubt in the mind of a reasonable person as to his impartiality." State of Georgia v. Willie Gamble Jr., Order of July 14, 1989 at 42 (Emanuel Co. Ind. No. 26, Jan. 1986).
18. Another basis for disqualification of a District Attorney must be when he exhibits discrimination in the selection of the victims of the lethal needle. Where the prosecuting attorney chooses disproportionately to seek the execution of black persons, or those who kill white persons, he exhibits discrimination in violation of the Eighth and Fourteenth Amendments to the Constitution. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). The prosecutor's racism can infect a trial in a multitude of ways, including in making the various discretionary decisions which are inherent in every stage of a capital prosecution.
19. The summary of case law contained in this motion serves only to put the prosecuting attorney on notice concerning certain potential biases which could result in his disqualification. They are offered merely by way of illustration of the possible bases for which a prosecutor should be recused. Any others within the knowledge of the prosecutor in this case should be disclosed.
WHEREFORE Mr. CLIENT moves that the prosecuting staff identify all possible bases for their own disqualification which ought to be made known to Mr. CLIENT and his counsel, so that Mr. CLIENT may make an knowing and intelligent decision as to whether he wishes to pursue disqualification.
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