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State v. LaCaze

Supreme Court of Louisiana

March 13, 2018



          WEIMER, JUSTICE.

         This matter is currently before the court in light of the remand by the United States Supreme Court in LaCaze v. Louisiana, 138 S.Ct. 60 (2017), which vacated the decision in State v. LaCaze, 16-0234 (La. 12/16/16), 208 So.3d 856, in which the defendant's writ application related to his petition for post-conviction relief was denied, and the defendant's conviction was upheld. On remand, this court was instructed to consider whether the trial judge's recusal should have been required because "objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable'" under the circumstances.[1] After carefully considering all the facts, we find the defendant has not shown that the circumstances created an unconstitutionally high risk of bias, and the original denial of the defendant's recusal claim in LaCaze, 16-0234, 208 So.3d 856, is correct.


         On March 4, 1995, Rogers LaCaze (Defendant) and Antoinette Frank (Frank), then an officer of the New Orleans Police Department (NOPD), dined together at Kim Anh Vietnamese restaurant in New Orleans East just before closing time.[2] They returned shortly after closing in Frank's police unit, apparently to commit armed robbery despite the presence of off-duty NOPD Officer Ronnie Williams. Officer Williams and two restaurant employees (siblings Ha and Cuong Vu) were fatally shot during the ensuing encounter.[3]

         Defendant and Frank were indicted for the triple murders and were separately tried-both before Judge Frank Marullo. Defendant's trial was held first. In closing argument at Defendant's trial, the state conceded that no survivors had witnessed the shootings and that "we will never know [precisely] what happened" to the Vu siblings in the kitchen, but nevertheless maintained the evidence showed that Defendant shot Officer Williams as Frank gathered the others in the kitchen area. State v. LaCaze, 99-0584, p. 10 (La. 1/25/02), 824 So.2d 1063, 1071. The state also conceded that it appeared that just one gun, a 9 mm pistol, was used to kill all three victims, but asserted it was immaterial which perpetrator had pulled the trigger because the evidence showed that both were present and exhibited specific intent to kill. Id., 99-0584 at 10, 824 So.2d at 1071-72.

         A jury found Defendant guilty of three counts of first degree murder and unanimously sentenced him to death. His conviction and sentence were affirmed by this court in LaCaze, 99-0584, 824 So.2d 1063, and Defendant's writ of certiorari was denied in LaCaze v. Louisiana, 537 U.S. 865 (2002).

         Post conviction, Defendant learned that, in the course of investigating the murders, NOPD discovered that Frank obtained two guns from the NOPD property and evidence room, one of which (a 9 mm pistol) was the same type used in the triple murders for which Defendant was convicted. Both guns were released to Frank by Officer David Talley.[4] Before Defendant's trial, the NOPD Public Integrity Bureau (Bureau) commenced an investigation into whether Talley had violated departmental rules and regulations in releasing the guns. The non-9 mm gun was released to Frank pursuant to an order purportedly signed by Judge Morris Reed; however, when shown the order by Bureau investigators, Judge Reed denied that the signature on the order was his, observing that his name was misspelled ("Reid").

         Bureau investigators also inquired into whether the 9 mm gun was released pursuant to a legitimate order signed by Judge Frank Marullo, i.e., whether Judge Marullo's signature on the release was genuine. Notably, Frank falsely reported the 9 mm gun stolen 10 days before the murders. In late 1998, roughly three years after Defendant and Frank's trials, a 9 mm gun with partial serial numbers, suggesting that it may have been the murder weapon, was found in possession of Frank's brother, Adam Frank.

         Judge Marullo cooperated with the Bureau's internal investigation of Officer Talley before Defendant's case was assigned to his docket. When initially interviewing Judge Marullo, Bureau investigator Sergeant Robert Harrison presented the release order purportedly bearing Judge Marullo's signature, at which point Judge Marullo "viewed the document, and compared it to several other documents with his signature, " before stating that "he did not believe the court order in question was his signature." Judge Marullo explained to Sgt. Harrison that "[s]ince the court order did not have a description of the weapon to be released, he would not have signed [it]." From this exchange, Sgt. Harrison opined that the signature had been forged. To support his opinion, Sgt. Harrison again contacted Judge Marullo to secure a recorded statement. Because Defendant's case had been assigned to Judge Marullo, the judge "would not make a statement ... until the case ha[d] reached its final disposition." As a result, the Bureau investigation of Officer Talley remained open through the duration of Defendant's trial and Frank's trial for the purpose of obtaining a statement from Judge Marullo.

         Judge Marullo did not disclose to the parties in Defendant's case his awareness of the Bureau's internal investigation of Officer Talley or the fact that he had been questioned by Bureau investigators about the release of the guns, even after Defendant filed (early during the course of his trial) a motion to recuse Judge Marullo on other grounds. The information that there was an investigation surfaced during co-defendant Frank's subsequent trial in connection with Officer Talley's testimony about the release of guns from the property room to Frank. When Frank's counsel raised the possibility that Judge Marullo's signature on the order authorizing the gun's release was a forgery, Judge Marullo recessed and held a recorded conference, during which Judge Marullo disclosed that there was a Bureau investigation into the circumstances of the gun's release, including as to the genuineness of his signature. Specifically, Judge Marullo stated that he did not recall signing the order, but that it would have been "perfectly logical and correct that [he] would [have done] something like that." Judge Marullo stated that he had provided samples of his signature to a handwriting expert for comparison and "they came back and told me that it wasn't my signature."[5] Judge Marullo also opined that it appeared there had been "some kind of system in that property room where they were forging names to get guns out of there."[6]

         After the trials of both Defendant and Frank, Sgt. Harrison contacted Judge Marullo again, at which time the judge declined to comment because the cases "would be with him for a long time because of appeals."

         In response to the Bureau inquiry, Officer Talley acknowledged that he helped Frank obtain a 9 mm gun from the NOPD property room months before the murders; that he had spoken with Frank inside the NOPD gun vault days before the murders about the release of additional weapons, which would have afforded Frank the opportunity to remove another weapon from the vault without his knowledge when he left her alone in the property room; and that he had once before helped Frank obtain another gun from the property room. As to the 9 mm gun at issue, Officer Talley explained to Bureau investigators that he "brought a court order to Judge Marullo" to facilitate its release, and "Judge Marullo's clerk took ... it to the Judge's chambers" and "returned with the order signed by [the] Judge."

         When Defendant learned that Judge Marullo had been questioned during the Bureau's investigation of Officer Talley, Defendant filed a pro-se application for post-conviction relief, followed by a counseled supplement in May 2010. Defendant alleged that he was denied the right to a fair and impartial tribunal in the trial of his capital case in violation of his federal constitutional rights.

         Because this issue was raised by Defendant, Judge Marullo was recused from presiding over the post-conviction proceedings. Thereafter, a judge from a different jurisdiction was appointed to preside over Defendant's request for post-conviction relief. In June 2013, the trial court held an evidentiary hearing at which over 20 witnesses, including Officer Talley and Judge Marullo, testified. Officer Talley again conceded having helped Frank get the 9 mm gun, but maintained he did not forge Judge Marullo's signature. Judge Marullo testified that he recalled being questioned by Bureau investigators, but denied ever signing an order to release the gun, calling it a "phony" signature. Judge Marullo testified that he did not recall his statement at the in-chambers conference during Frank's trial in which he indicated he had provided someone with handwriting samples. Finally, Judge Marullo denied that these events caused him to harbor any bias.

         On July 23, 2015, the trial court issued a 128-page judgment with reasons in connection with Defendant's petition for post-conviction relief. The trial court rejected Defendant's claim regarding Judge Marullo, observing that this case involves "a classic example of circumstances and appearances creating an inference unsupported by facts, " however, it vacated Defendant's conviction and sentence on the basis of a structural defect-a juror was seated after failing to disclose his law enforcement experience. Accordingly, Defendant's request for a new trial was granted. The state filed a writ application with the appellate court, asserting that the trial court abused its discretion in making findings related to the qualifications of a juror, errors the state urged were compounded when the trial court incorrectly applied the law.[7] In an opposition, Defendant urged that the trial court correctly found a structural defect in the seating of the juror in question. He further argued that the other claims before the trial court also had merit. Those claims included one that Defendant "was tried before a biased tribunal."

         In a one-page action, Defendant's conviction was reinstated, see State v. LaCaze, 15-0891 (La.App. 4 Cir. 1/6/16) (unpub'd), on a finding the juror's seating was not a structural defect. Additionally, no error was found in the trial court's rejection of Defendant's remaining claims, including his due process claim based on the appearance of bias resulting from Judge Marullo presiding over the trial. This court subsequently denied writs, issuing an opinion finding that the court of appeal correctly reversed the trial court's order for a new trial and reinstated the conviction. State v. LaCaze, 16-0234 at 1, 208 So.3d at 858. Pertinent here is this court's review of Defendant's due process claim concerning Judge Marullo, which was based on: (1) the allegation that "NOPD Investigated Judge Marullo as the Source of the 9mm Beretta Murder Weapon During the Pendency of these Proceedings" and (2) "Judge Marullo's Involvement in the [Bureau] Investigation Mandated His Recusal." In analyzing Defendant's claim, this court noted the presumption of impartiality in favor of a trial judge. LaCaze, 16-0234 at 10, 208 So.3d at 864. After recognizing that a judge in a criminal case shall be recused under La. C.Cr.P. art. 671(A)(1) if he is "biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial" and under La. C.Cr.P. art. 671(A)(6) if he "[w]ould be unable, for any other reason, to conduct a fair and impartial trial, " this court observed that Article 671 "underscores a judge's duty to avoid even the appearance of impropriety." LaCaze, 16-0234 at 10, 208 So.3d at 864.

         This court further found that Judge Marullo's possible connection to the release of a gun to Frank is insufficient to show that Judge Marullo "harbored any bias, prejudice, or personal interest in the case, let alone to such an extent that it rendered him unable to conduct a fair trial." Id. After finding lack of proof of actual bias, this court further found that evidence related to Judge Marullo being questioned in the Bureau's internal investigation of Officer Talley was insufficient to show that Judge Marullo would be unable to conduct a fair trial for some other reason. See LaCaze, 16-0234 at 10-11, 208 So.3d at 864 (citing La. C.Cr.P. art. 671(A)(6), quoted infra). Defendant's argument that Judge Marullo's initial participation in the internal investigation of Officer Talley caused him to become entangled in the facts at issue in Defendant's case was rejected by this court. The means by which the murder weapon was procured, i.e., whether Frank had obtained it pursuant to a genuine or "bogus" court order, did not pertain to any of the issues at Defendant's trial. See LaCaze, 16-0234 at 11, 208 So.3d at 864. Furthermore, this court held that Judge Marullo's possible involvement in the administrative release of a gun did not "have a tendency to make the existence of any fact of consequence [ ] more or less probable, " and was thus insufficient to rebut the presumption of impartiality afforded to judges. See id.

         Subsequently, the United States Supreme Court in Rippo v. Baker, 137 S.Ct. 905 (2017), clarified the standard for judicial disqualification in criminal cases under the federal due process clause. Based on this clarification, the Supreme Court granted Defendant's petition for writ of certiorari, vacated this court's decision in LaCaze (208 So.3d 856), and remanded the matter to this court for further consideration of this issue. LaCaze v. Louisiana, 138 S.Ct. 60 (2017).


         The Due Process Clause of the United States Constitution requires "a fair trial in a fair tribunal, " before a judge with no bias or interest in the outcome. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). Louisiana courts have generally required criminal defendants to present evidence of actual bias to obtain relief based on a judge's failure to recuse.[8] The Supreme Court's intervention in Rippo, and again in this case, however, directs that recusal may be required even where proof of actual bias is lacking.

         In remanding for reconsideration here, the Supreme Court referenced its recent decision in Rippo, in which it clarified the judicial disqualification standard in the context of the federal constitutional right to due process. See Rippo, 137 S.Ct. at 907. During his trial, the defendant in Rippo received information indicating that the presiding judge was a target of a federal bribery probe. Id. at 906. From this, the defendant surmised that the same district attorney's office that was prosecuting him was also investigating the judge. The defendant unsuccessfully moved for the trial judge's recusal under the theory that the judge could not remain impartial in a matter in which one of the parties before him was actively investigating him for criminal wrongdoing. Id.

         Having failed to make his case on direct review, the defendant in Rippo revisited the issue post-conviction, this time offering records from the trial judge's subsequent criminal prosecution that established the same district attorney's office that prosecuted the defendant had, as he suspected, been concurrently investigating the trial judge. Id. The state courts in Rippo again rejected the defendant's claim, denying the defendant the opportunity for "discovery or an evidentiary hearing [on the recusal issue] because his allegations '[d]id not support the assertion that the trial judge was actually biased in [the defendant's] case.'" Id., at 906-07 (quoting Rippo v. State, 368 P.3d 729, 744 (Nev. 2016)).

         From the denial of his request for post-conviction relief by the state courts, the defendant filed a petition for writ of certiorari. In evaluating the state court judgment in Rippo, the Supreme Court held that evidence of actual bias is not necessary to require recusal. See id., 137 S.Ct. at 907 (citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986)). The Court clarified that the inquiry for judicial disqualification is instead whether, "objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable'" under the circumstances. Id. (quoting Withrow, 421 U.S. at 47); see Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 889-90 (2009). In applying this standard, the court must determine "whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Rippo, 137 S.Ct. 907 (quoting Williams v. Pennsylvania, 136 S.Ct. 1899, 1905 (2016)). Accordingly, the state supreme court's decision in Rippo, which affirmed the trial court's rejection of the defendant's recusal claim based on lack of proof of actual bias, was vacated, and the case was remanded to the state supreme court for further consideration of Defendant's federal due process claim under the clarified standard. Id. Notably, the Supreme Court in Rippo did not find that the defendant was entitled to substantive relief, but instead simply clarified the federal standard to be applied by the state supreme court on remand. On remand, the state supreme "court is free to determine whether its original decision is still correct in light of the [clarified standard] or whether a different result is more appropriate." See Kenemore v. Roy, 690 F.3d 639, 642 (5th Cir. 2012), cert. denied, 133 S.Ct. 889 (2013).[9]

         In light of the Supreme Court's remand, this court, like the state supreme court in Rippo, is now called on to decide whether the original decision in LaCaze, 16-0234, 208 So.3d 856, is correct in light of the clarified standard. As a basis for his federal due process claim, Defendant relies on the following facts:

• NOPD conducted an internal investigation into Officer Talley's release to Frank, then an NOPD officer, of two guns from the property room, one of which, a 9 mm released in August 1994, could have been used in the March 1995 murders.
• Bureau investigators found that Officer Talley's release of the 9 mm gun had involved the use of a release order purportedly signed by Judge Marullo, which Officer Talley maintained was authentic.
• When asked to review the order, Judge Marullo told the Bureau investigator that he did not believe the signature was authentic.
• Defendant's case was allotted to Judge Marullo's courtroom, after which he declined, when asked, to make further statements to the ...

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