State of Louisiana Versus Jerman Neveaux
Opinion
STATE OF LOUISIANA NO. 22-K-426
VERSUS FIFTH CIRCUIT
JERMAN NEVEAUX COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-4029 & 16-6301, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
September 28, 2022
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
WRIT GRANTED; JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS JGG FHW RAC
COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA Thomas J. Butler
COUNSEL FOR DEFENDANT/RELATOR, JERMAN NEVEAUX Christine M. Lehmann Elliott T. Brown
GRAVOIS, J.
Relator/defendant, Jerman Neveaux, seeks this Court’s supervisory review
of the trial court’s September 1, 2022 judgment which denied his “Motion to
Recuse Judge Miller Under the Amended La. C.Cr.P. [art.] 671(B).” For the
reasons that follow, we grant this writ application, vacate the trial court’s
judgment, and remand the matter with instructions.
On October 13, 2016, defendant was indicted for the first degree murder of
Jefferson Parish Sheriff’s Office (“JPSO”) Detective David Michel. In January
2022, defendant filed a “Motion to Recuse” Judge Nancy Miller based on La.
C.Cr.P. art. 671(A)(1) and (6).1 Therein, he argued that Judge Miller must be
recused due to the appearance and risk of partiality because her husband is a JPSO
sergeant who was involved in the instant case in his law enforcement capacity.
Judge Miller referred the matter for appointment of another judge to hear the
motion, and in due course, a hearing was conducted before a randomly appointed
judge (Judge Stephen Grefer), who denied the “Motion to Recuse.” Defendant
filed a writ application with this Court challenging the trial court’s ruling, which
this Court denied. See State v. Neveaux, 22-K-119 (La. App. 5 Cir. 3/24/22)
(unpublished writ disposition), writ denied, 22-676 (La. 6/1/22), 338 So.3d 490.
On August 30, 2022, defendant filed a second motion to recuse that was
entitled, “Motion to Recuse Judge Miller Under the Amended La. C.Cr.P. [art.]
671(B).” In his motion, defendant argued that La. C.Cr.P. art. 671 was amended,
1 Louisiana Code of Criminal Procedure article 671(A)(1) and (6) stated at the time the “Motion to Recuse” was filed:
A. In a criminal case a judge 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;
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(6) Would be unable, for any other reason, to conduct a fair and impartial trial.
22-K-426 1 effective August 1, 2022, and that under this new mandatory ground for recusal, a
judge shall be recused when there exists a substantial and objective basis that
would reasonably be expected to prevent the judge from conducting any aspect of
the cause in a fair and impartial manner. Defendant argued that the new mandatory
standard for recusal in criminal cases is broader than what was allowed under the
law when he filed his first motion to recuse. Defendant asserted that although
there was no jurisprudence interpreting this additional ground for recusal in
criminal law, this Court had recently examined and applied the identical recusal
standard in a civil case, Anderson v. Dean, 22-C-233 (La. App. 5 Cir. 7/25/22)
(unpublished writ disposition). He contended that Judge Miller’s husband’s
involvement in the instant case created a substantial and objective basis that would
reasonably be expected to prevent Judge Miller from conducting any aspect of this
case in a fair and impartial manner. As such, defendant argued that recusal is
mandatory.
On September 1, 2022, the trial court denied the motion to recuse, stating in
pertinent part:
The instant motion to recuse raises no new factual basis for recusal. The recusal was fully litigated and writs [were] denied by the court of appeal and the state supreme court. The instant motion is based solely on the recent amendment to La. C.Cr.P. [a]rt. 674. The defendant provides no legal support for retroactive application of the amendment [to] La. C.Cr.P. art. 674, and there is no indication in the legislative history that this was the intent of [the] legislature. The Court therefore finds that the instant motion to recuse is repetitive and untimely. Louisiana Code of Criminal Procedure article 671, which provides the
grounds for recusal of a judge in criminal cases, was amended by Acts 2022, No.
42, § 1, with an effective date of August 1, 2022, and provides in pertinent part:
B. In a criminal cause, a judge of any trial or appellate court shall also be recused when there exists a substantial and objective basis that would reasonably be expected to prevent the judge from conducting any aspect of the cause in a fair and impartial manner.
22-K-426 2
The comments to Article 671 provide in pertinent part:
a) This Article generally follows Code of Civil Procedure Article 151, with such adaptations as are necessary to adjust the grounds for recusal to the special differences in criminal proceedings.
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(i) A new Paragraph B has been added to provide an additional mandatory ground for recusal when a substantial and objective basis exists that would reasonably be expected to prevent the judge from conducting any aspect of the case in a fair and impartial manner. This provision is intended to serve as a catch-all supplementing the mandatory grounds for recusal set forth in Paragraph A and to incorporate a clearer, more objective standard than the language of Canon 3C of the Code of Judicial Conduct, which provides that a judge should recuse himself when “the judge’s impartiality might reasonably be questioned.”
Louisiana Code of Criminal Procedure article 674, which sets forth the
procedure for recusal of a trial judge in criminal cases, was also amended at the
same time as Article 671 with the same effective date, and provides:
A. A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusal under Article 671. The motion shall be filed not later than thirty days after discovery of the facts constituting the ground upon which the motion is based, but in all cases at least thirty days prior to commencement of the trial. In the event that the facts constituting the ground for recusal occur thereafter or the party moving for recusal could not, in the exercise of due diligence, have discovered such facts, the motion to recuse shall be filed immediately after the facts occur or are discovered, but prior to verdict or judgment.
B. If the motion to recuse sets forth facts constituting a ground for recusal under Article 671, not later than seven days after the judge’s receipt of the motion from the clerk of court, the judge shall either recuse himself or refer the motion for hearing to another judge or to an ad hoc judge as provided in Article 675. C. If the motion to recuse is not timely filed in accordance with Paragraph A of this Article or fails to set forth facts constituting a ground for recusal under Article 671, the judge may deny the motion without referring the motion to another judge or to an ad hoc judge for hearing but shall provide written reasons for the denial.
Upon review of this writ application, for the following reasons, we find that
the trial court erred in denying the motion to recuse as untimely and repetitive.
First, the trial court mistakenly states that the instant motion is based solely on the
22-K-426 3 recent amendment to La. C.Cr.P. art. 674. Rather, we find that defendant’s current
motion to recuse is based on the recent amendment to La. C.Cr.P. art. 671, which
added a new ground for recusal of a trial judge in criminal cases. Since La. C.Cr.P.
art. 671 provides a new ground for recusal, we find that the trial judge should have
applied the new standard set forth in La. C.Cr.P. art. 671(B) to the facts in the
instant case to determine if she should recuse herself or refer the motion to another
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