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Pesnell v. Sessions

Court of Appeals of Louisiana, Second Circuit

February 28, 2018

WILLIAM ALAN PESNELL and CHRISTOPHER HOLDER Plaintiffs-Appellants
v.
JILL SESSIONS, CLERK OF COURT, ET AL Defendants-Appellees

         Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 151, 118 Honorable Eric R. Harrington, Judge (Ad Hoc)

          THE PESNELL LAW FIRM Counsel for Appellant, By: Billy R. Pesnell Christopher Wayne J. Whitney Pesnell Holder W. Alan Pesnell

          WILLIAM ALAN PESNELL In Proper Person

          JEFF LANDRY Attorney General Counsel for Appellees, Judges of the 26th Judicial District Court

          LOUISIANA DEPARTMENT OF JUSTICE By: David G. Sanders Assistant Attorney General LOUISIANA DEPARTMENT OF JUSTICE By: Emily G. Andrews Assistant Attorney General Counsel for Appellee, The State of Louisiana

          Counsel for Appellee, The State of Louisiana Counsel for Appellee, Jennifer Bolden, Certified Digital Reporter

          JAMES D. SOUTHERLAND Counsel for Jill Sessions, Clerk of Court, 26th Judicial District Court

          Before BROWN, PITMAN, and STEPHENS, JJ.

          PITMAN, JUDGE.

         In this suit brought under the Public Records Law, Plaintiffs William Alan Pesnell ("Pesnell") and Christopher Holder ("Christopher") appeal the ruling of the trial court which sustained exceptions of no cause of action filed by Jill Sessions, Clerk of Court of the 26th Judicial District Court; Jennifer Bolden, Court Reporter; and Judges Michael O. Craig, Jeff R. Thompson, Jeff Cox, E. Charles Jacobs, Michael Nerren, and Parker O. Self (collectively, "the Judges"), finding they were not custodians of records sought in this case. Plaintiffs also appeal the ruling of the trial court which sustained exceptions of no cause of action and lack of subject matter jurisdiction filed by the State of Louisiana through the Office of the Attorney General in response to their challenge to the constitutionality of the Public Records Law. For the following reasons, the judgment of the trial court is affirmed in part, reversed in part and remanded.

         FACTS

         Christopher was found guilty of the second degree murder of his mother, Donna Green Holder. After the verdict was rendered, his uncle (Donna Holder's brother) opened the intestate succession of his sister, the victim, and asked that Christopher be declared unworthy and excluded from any inheritance, life insurance benefits or any other benefits to which he would have been entitled had he not caused his mother's death. The Pesnell Law Firm represented Christopher in the succession proceedings; Christopher was found unworthy to inherit.

         Both the criminal verdict and the civil judgment were appealed to this court and were affirmed. See State v. Holder, 50, 171 (La.App. 2 Cir. 12/9/15), 181 So.3d 918, writ denied, 16-0092 (La. 12/16/16), 211 So.3d 1166, and 16-0056 (La. 12/16/16), 212 So.3d 1176; and Succession of Holder, 50, 824 (La.App. 2 Cir. 8/10/16) 200 So.3d 878, writ denied, 16-1694, (La. 12/16/16), 212 So.3d 1169. These judgments are now final.

         Pesnell was hired by Christopher's father, Gary Holder, to review the criminal record on Christopher's behalf, allegedly to aid him in his defense in both the criminal and civil appeals. Pesnell claims that while the cases were pending on appeal, "it came to the attention of undersigned counsel that certain persons who were present at that trial (the criminal trial) . . . believed that the transcript of that trial, which was presented to this Court, was not correct." Specifically, he has an affidavit from Gary Holder (the "Holder affidavit"), which states that due to his son's debilitating mental illness, he has attempted to aid his son's defense. Gary Holder claimed to have been present for each phase of the trial from beginning to end. In his affidavit, he avers that during the closing arguments of his son's murder trial, he was present in open court and heard the district attorney making incendiary remarks to the jury about Christopher's mental state, the fact that Christopher may be released in the future if found not guilty by reason of insanity and that Christopher's father would take whatever steps to get Christopher released early by pulling strings with officials and/or physicians in order to have him released from any facility to which he may be sent for psychiatric treatment or observation. Gary Holder also stated in the affidavit that Rick Fayard, Christopher's attorney in the criminal matter, vehemently objected and described the remarks as the most unethical move that he had seen in all his years of practicing law. The Holder affidavit states that he thought this colloquy and objection to be very important in the matter and ordered a transcript of the proceedings. He also stated that when he received that transcript, he was shocked to find that the objection was not in the transcript and, further, that the language used by the district attorney had been changed from what he had heard in the courtroom.

         The Holder affidavit also stated that, in his capacity as Christopher's curator, and pursuant to having his power of attorney, Gary Holder hired Pesnell to file a civil appeal in the succession proceeding of Christopher's mother and to help obtain information and facts concerning matters related to post-conviction relief efforts. In an effort to investigate Gary Holder's claims concerning the absence from the transcript of the language used by the district attorney, Pesnell began trying to acquire the recording of the criminal trial so that he could compare the transcript with the recording.

         Pesnell attempted to get the recordings from the trial court by various methods, including a letter to Sessions, Clerk of Court of the 26th Judicial District Court, requesting a copy of the data file in the criminal case. Sessions responded, designating the court reporter, Jennifer Bolden, as the custodian of the record. Pesnell then sent a letter to Bolden requesting the data file. That letter was apparently referred to the 26th Judicial District Court Judges' office, and he received a response from Melissa Fox, Court Administrator and Senior Staff Attorney, stating that La. R.S. 44:4(47) excluded the record from being public. Ms. Fox also referred Pesnell to a local court policy, which stated that no one was allowed to listen to courtroom recordings since, at times, an attorney speaking to his client might be picked up by the microphone. The policy exists so that attorney-client privilege is protected. The policy stated that exceptions could be made at the discretion of the trial court. However, in this case, Pesnell's request for the alleged public record was denied.

         Pesnell sent a letter to Chief Judge of the 26th Judicial District Court Parker O. Self and to Judge Michael Nerren (trial judge who presided over the criminal action) requesting access under the local policy. Ms. Fox responded again, denying his request and informing ...


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