                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #008


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 14th day of February, 2018, are as follows:



PER CURIAM:


2017-KK-1451      STATE OF LOUISIANA v. DANNY P. BATTAGLIA (Parish of St. Mary)

                  The Louisiana Constitution gives the District Attorney “charge of
                  every criminal prosecution by the state in his district, . . . .”
                  La. Const. art. 5, § 26. Code of Criminal Procedure art. 680
                  provides mandatory grounds for recusal of the District Attorney.
                  While the District Attorney contends that he acted within his
                  discretion under Code of Criminal Procedure art. 681 to recuse
                  himself voluntarily, we note that cases abound in which courts
                  have found that “[a]n appearance of bias and prejudice is not
                  sufficient to warrant the granting of a motion to recuse [the
                  District Attorney].” See, e.g., State v. Ellis, 13-1401, pp. 26–
                  27 (La. App. 4 Cir. 2/4/15), 161 So.3d 64, 80. To resolve the
                  present case, we find it unnecessary to examine further any
                  interplay between these two articles or to consider the extent of
                  the District Attorney’s discretion to recuse himself voluntarily.
                  There is no support for the district court’s determination that
                  public confidence in the proceedings is risked under the
                  circumstances here in which a former public defender, who had no
                  involvement with Battaglia and whose conflict is speculative, is
                  employed by the District Attorney but otherwise uninvolved in
                  Battaglia’s Miller hearing. Therefore, we vacate the district
                  court’s ruling granting the District Attorney’s motion to recuse
                  and remand for further proceedings. REVERSED AND REMANDED.

                  WEIMER, J., additionally concurs and assigns reasons.
                  CRICHTON, J., additionally concurs and assigns reasons.




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02/14/2018

                     SUPREME COURT OF LOUISIANA


                                No. 2017-KK-1451

                            STATE OF LOUISIANA

                                     VERSUS

                            DANNY P. BATTAGLIA


       ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL
          DISTRICT COURT FOR THE PARISH OF ST. MARY



PER CURIAM

      In 2016, attorney Craig Colwart, a public defender in the 16th JDC, was

hired as an assistant district attorney in the same district. His hiring precipitated

recusal by the District Attorney and his entire office from 86 prosecutions in which

Colwart was perceived to have a conflict. Among those recusals was from

participating in a hearing to determine parole eligibility for Danny Battaglia.

Codefendants Battaglia and Robert Thibodeaux had pleaded guilty to a murder

they committed together as juveniles in 1981. Battaglia filed a motion to correct an

illegal sentence seeking parole eligibility pursuant to Miller v. Alabama, 567 U.S.

460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, 577

U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).

      Colwart represented Thibodeaux in an earlier post-conviction proceeding

and never represented Battaglia. Nonetheless, the District Attorney voluntarily

moved to recuse himself and his office from further proceedings in Battaglia’s

Miller hearing because Colwart “may have received information from

[Thibodeaux] concerning [Battaglia’s] involvement in the murder of the victim in
this case.” After the district court granted the motion to recuse, the Attorney

General filed a motion to vacate that ruling. In response to this motion, the District

Attorney reiterated, “a conflict exists in this case since [Colwart] probably learned

the details of [Battaglia’s] participation in the murder from his discussion of the

case with [Thibodeaux].”

       The district court denied the Attorney General’s motion to vacate after

conducting a hearing. At that hearing, the district court judge characterized the

conflict as follows: Colwart would have knowledge gleaned from his

representation of Thibodeaux regarding potential mitigating and aggravating

considerations pertinent to Battaglia’s Miller hearing and the elected District

Attorney who employs Colwart has an interest in the outcome of the Miller

hearing. The district court judge also expressed concern that the community might

have less confidence in proceedings in which a District Attorney’s office opposes

parole eligibility for the codefendant of a former client of one of the assistant

district attorneys.

       After a five-judge panel of the court of appeal denied the Attorney General’s

writ application without comment, State v. Battaglia, 17-0526 (La. App. 5 Cir.

7/28/17) (unpub’d) (Theriot, J., dissents and would grant the writ), the Attorney

General applied to this court for supervisory review. After briefing and oral

argument, it is apparent that the Attorney General and the District Attorney now

agree on most of the issues. For example, the parties agree that, while Colwart

should be recused from participating in Battaglia’s Miller hearing, any conflict

Colwart may have is not imputed to the District Attorney or his other assistants.

Nonetheless, the District Attorney maintains that the district court did not err in

refusing to vacate the granting of the motion to recuse because participation in the

Miller hearing by one of his other assistants would create an appearance of

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partiality that could erode public confidence in the fairness of the proceedings. We

disagree.

       The Louisiana Constitution gives the District Attorney “charge of every

criminal prosecution by the state in his district, . . . .” La. Const. art. 5, § 26. Code

of Criminal Procedure art. 680 provides mandatory grounds for recusal of the

District Attorney. 1 While the District Attorney contends that he acted within his

discretion under Code of Criminal Procedure art. 681 to recuse himself

voluntarily, 2 we note that cases abound in which courts have found that “[a]n

appearance of bias and prejudice is not sufficient to warrant the granting of a

motion to recuse [the District Attorney].” See, e.g., State v. Ellis, 13-1401, pp. 26–

27 (La. App. 4 Cir. 2/4/15), 161 So.3d 64, 80. To resolve the present case, we find

it unnecessary to examine further any interplay between these two articles or to

consider the extent of the District Attorney’s discretion to recuse himself

voluntarily. There is no support for the district court’s determination that public

confidence in the proceedings is risked under the circumstances here in which a


       1
           Article 680, pertaining to the grounds for recusation of a district attorney, provides:

       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 a party who is a 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.
       2
            Article 681, pertaining to the procedure for the recusation of a district attorney,
provides:

       A district attorney may recuse himself, whether a motion for his recusation has
       been filed or not, in any case in which a ground for recusation exists. A motion to
       recuse the district attorney shall be in writing and shall set forth the grounds
       therefor. The motion shall be filed in accordance with Article 521, and shall be
       tried in a contradictory hearing. If a ground for recusation is established the judge
       shall recuse the district attorney.
                                                   3
former public defender, who had no involvement with Battaglia and whose conflict

is speculative, is employed by the District Attorney but otherwise uninvolved in

Battaglia’s Miller hearing. Therefore, we vacate the district court’s ruling granting

the District Attorney’s motion to recuse and remand for further proceedings.

REVERSED AND REMANDED




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02/14/2018

                      SUPREME COURT OF LOUISIANA

                                 No. 2017-KK-1451

                             STATE OF LOUISIANA

                                      VERSUS

                             DANNY P. BATTAGLIA

       ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL
          DISTRICT COURT FOR THE PARISH OF ST. MARY

WEIMER, J. additionally concurring.

      I agree with the majority opinion, and write separately because I find that the

motions to recuse were filed in good faith out of concern for protecting the integrity

of the prosecution. Noteworthy is that there was a considered ruling by the district

court. This court’s decision provides an answer for this district attorney in this case.
02/14/2018



                      SUPREME COURT OF LOUISIANA

                                 No. 2017-KK-1451

                              STATE OF LOUISIANA

                                       VERSUS

                             DANNY P. BATTAGLIA

       ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL
          DISTRICT COURT FOR THE PARISH OF ST. MARY

CRICHTON, J., additionally concurs and assigns reasons

      I agree with the majority’s conclusion that the district court erred in this case

in granting the District Attorney’s motion to recuse himself and his entire office

based on a conflict attributable only to one of his assistants (who is a recently hired

former public defender). However, I write separately to note that the Attorney

General alleges that the hiring of that assistant resulted in approximately 85 other

motions to recuse filed by the District Attorney and granted by the district court since

2016. In addition, the Attorney General alleges that the hiring of another assistant,

who was also a former public defender, resulted in the filing of another 261 motions

to recuse filed by the District Attorney and granted by the district court since 2016.

While those recusals are not pending before the court in this case, which is limited

to the District Attorney’s motion to recuse himself and his office from participation

in defendant’s Miller hearing, such a volume of recusals is of great concern. The

parties in this instance have agreed that attorney Colwart’s conflict is not attributable

to the District Attorney or his office generally. Furthermore, this Court has now

determined that public confidence in the proceedings is not imperiled under the

circumstances presented here. I am hopeful the Court’s action today will temper any

further need for recusals such as these.
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