IN THE ORLEANS PARISH CRIMINAL DISTRICT COURT STATE OF LOUISIANA STATE OF LOUISIANA v. Docket No. 521-533 Section FREDDIE JOHNSON Judge Byron Williams Defendant FILED: DEPUTY CLERK: MOTION FOR DISCLOSURE OF ANY POSSIBLE BASIS FOR JUDICIAL RECUSAL COMES NOW, FREDDIE JOHNSON, 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 the Louisiana Constitution, and other applicable law, to reveal any possible basis for judicial recusal, including but not limited to, whether his Honor while employed at the Orleans District Attomey?s Office ever personally made or caused another to make, or knew of others making, Subpoenas,? that did not comply with the procedure laid out in La. C. Cr. P. art. 66. In support, counsel states: 1. On November 28, 2017, the State disclosed to the defense that it had made two Subpoenas? for two State witnesses in this case. One of the two purported subpoenas was actually served and resulted in that witness complying with the purported subpoena. 2. Neither purported Subpoena? complied with the procedure laid out in La. C. Cr. P. art. 66, notwithstanding that each plainly claims to be issued in accordance with La. C. Cr. P. art. 66. Additionally, and importantly, these documents also make the claims that they are a ?Subpoena? and that failure to obey may result in ?fine and imprisonment.? To be sure, these documents contain multiple false statements or false representations of a material fact. 3. In order for an Article 66 subpoena to issue the prosecutor must ?rst seek court approval in a writing that sets forth reasonable grounds before the subpoena may actually issue. There are both constitutional and practical reasons for requiring a district attorney to obtain approval of the court. As a constitutional matter, the issuance of a subpoena is almost exclusively the province of the judiciary and Article 66 itself reinforces the notion tlfa't thejiidiciary-alone can cause these types of subpoena to issue. La. Const. Art. 11, ?2 (distribution of powers); see also La. C. Cr. P. art 103 (allowing the Coroner to issue subpoenas but only after getting approval from the district court). As a practical matter, there is reason to fear that, without this requirement, this subpoena power ?could be abused by the district attorney.? State v. Williams, 617 So.2d 557, 562 (La.App. 3rd Cir. 1993); La. C. Cr. P. art. 66, comment Indeed, even where district attorneys have complied with the procedure laid out in Article 66, a violation of constitutional rights may occur. State v. Rachel, 362 So.2d 737, 740 (La. 1978) (post-charging issuance rose to a ?violation of due process rights? because of the ?potential intimidation of a key defense witness (the by the arbitrary and illegal seizure from her of the test results and test data?); State v. Lee, 05-2098 (La. 01/16/08), 976 So. 2d 109 (warrant based upon a ?nding of probable cause is required for State v. Skinner, 08-2522 (La. 05/05/08), 976 So.2d 109 (warrant based upon a ?nding of probable cause required for medical records). 4. Here, the Orleans District Attorney?s of?ce acted ultra vires when it issued a fraudulent document that purported to be an Article 66 subpoena to witness Charles Bingham. The State never disclosed the existence of this document to trial counsel, notwithstanding their obligations under Brady v. Maryland and La. C. E. 723(3). The issue now before the court is whether the State?s failure to timely disclose this and other information undermined the fairness of these proceedings and violated Mr. Johnson?s rights to due process accorded to him by both the Louisiana and Federal constitutions. 5. According to the Orleans District Attorney?s office, the practice of using these types of materially misleading documents predates the current administration and extends back decades.l See also State v. Quinch Brown, 406-890 (Orleans Criminal District Court, Section (a case originating in 1999 that ran through the early part of the last decade that involved, among other things, the District Attorney?s of?ce?s unlawfully use of non-Article 66 subpoenas). 6. Your honor was an Assistant District Attorney with the Orleans District Attorney?s of?ce in a timeframe when these non-article 66 documents appear to have been in use. Importantly, your Honor was also a Chief of the screening division at the Orleans District Attorney?s of?ce. These types of documents are usually used at the screening stage, i.e. when the District Attorney?s of?ce must determine whether to proceed against an individual. See Charles Maldonado, Orleans Parish Prosecutors are using Fake Subpoenas to pressure witnesses to talk to them, The Lens, Apr. 26, 2017, http: (?[Orleans District Attorney Spokeperson] didn?t know how often these notices are used, but he said the practice predates Cannizzaro?s tenure by decades?) 2 7. If your Honor, as a member of the Orleans District Attorney?s of?ce, engaged in the same improper conduct Mr. Johnson now alleges harmed him?or if your Honor as a member of the Orleans District Attorney?s office caused others to engage in the same improper conduct, or knew of the questionable practice-then Mr. Johnson believes that may be a reason for concern and possibly recusal. United States v. Columbia Broadcasting System, Inc, 497 F.2d 107, 109 (5th Cir. 1974). (?The protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the palladium of our judicial system?). LAW AND ARGUMENT 8. In any criminal case, it is imperative that ?justice satisfy the appearance of justice.? In Re Murchison, 349 US. 133, 136 (1955) (quoting v. United States, 11, 14 (1955)). Thus, our courts have found that ?even the appearance of impartiality, as well as impartiality itself, outweighs the inconvenience caused by the recusal of the trial judge. State v. LeBlanc, 367 So.2d 335, 341 (La. 1979), citing State v. Lemelle, 353 So.2d 1312 (La. 1977). 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) (disquali?cation required ?if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality?). 9. The American Bar Association has recommended that a judge should disqualify himself ?in a proceeding in which his impartiality might reasonably be questioned.? Code of Judicial Conduct, Canon 10. La. art. 671 enumerates a number of grounds for the mandatory recusal of a judge: A. In a criminal case ajudge of any court, trial or appellate, shall be recused when he: (1) 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; (2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the Spouse of either, within the second degree; (3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter?s employment in the cause; (4) Is a witness in the cause; (5) Has performed a judicial act in the case in another court; or (6) Would be unable, for any other reason, to conduct a fair and impartial trial. Id. 11. Importantly, where the sitting judge has ?personal knowledge of disputed evidentiary facts concerning the proceeding,? as may be the case here, he or she must be disquali?ed. State v. Connolly, 06-0540 (La. 06/02/06); 930 So. 2d 951, 955 (quoting People v. Julien, 47 P.3d 1194, 1198 (Colo. 2002)) (holding that a sitting judge must be disquali?ed if she had ?personal knowledge of disputed evidentiary facts concerning the proceeding, some supervisory role over the attorneys who are prosecuting the case, or some role in the investigation and prosecution of the case during the judge's former employment?). CONCLUSION WHEREFORE, for the foregoing reasons and any others that may appear to this Honorable Court, Mr. Johnson respectfully moves this Court to consider whether any bases for recusal exist. If they do, Mr. Johnson requests that they be made known to counsel for both parties, in open court. Respectfully submitted, orrnac Boyle, qu Bar 36385 Shanita Farris, La. Bar 37113 Capital Appeals Project 636 Baronne Street New Orleans, La 70113 504-529-5955 Certi?cate of Service I hereby certify that I have caused to be served by mail or hand delivery in open court a copy of the foregoing document upon the prosecution on the day of ?ling. 9mm liq m' 5 IN THE ORLEANS PARISH CRIMINAL DISTRICT COURT STATE OF LOUISIANA STATE OF LOUISIANA v. Docket No. 521-533 Section FREDDIE JOHNSON Judge Byron Williams Defendant FILED: DEPUTY CLERK: ORDER 0n Defendant?s MOTION FOR DISCLOSURE OF ANY POSSIBLE BASIS FOR JUDICIAL RECUSAL, it is hereby ORDERED that the State show cause on of why said motion should not be granted and an order issued declaring either the existence of grounds for recusal or that no such grounds exist. Done this l3 day of ,Zhb? Crim a1 District Court, Orleans Parish