STATE OF LOUISIANA 1474 JUDICIAL DISTRICT COURT VS. NO. 1261-16 : PARISH OF CALCASIEU DENNIS JEROME BARTIE : STATE OF LOUISIANA FILED: DEPUTY CLERK OF COURT MOTION TO RECUSE WITH INCORPORATED MEMORANDUM IN SUPPORT NOW INTO COURT, through undersigned counsel, comes the Defendant, DENNIS JEROME BARTIE (Mr. Bartie”), who suggests to the Court that the Honorable Michael Canaday must be recused in this matter, for the following reasons to wit INTRODUCTION With respect to every significant decision made thus far in this case—each bearing on the fundamental fairness of the case/trial—for its role, the trial court has been found to have abused its discretion. To that end, while rulings alone are not ordinarily enough to justify recusal, the trial court's findings of fact and rulings in this case, including the trial court's latest decision to—without even a contradictory hearing—unseal the record and allow the State unfettered access to particularized defense strategy, establish a pattern of bias thereby warranting recusal in this case under State v. Daigle, 2018-0634 (La. 4/30/18) 241 So.3d 999; Rippo v. Baker, 239 US. 807, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017); and State v. LaCaze, 16-0234 (La. 3/13/18), 239 $o.3d. 807, 2018 WL 1281112. So faz, the trial court has determined Mr. Bartie’s confession to be free and voluntary when it obviously wasn’t, determined Mr. Bartie not to be indigent when he obviously was, and determined a confession previously ruled inadmissible by the Third Circuit admissible as impeachment evidence. Likewise, given the record of these proceedings, including the evidence adduced at each these proceedings, any objective, well-informed observer would reasonably question Judge Canaday's impartiality. 1d. Simply put, from the outset of these proceedings, the trial court has demonstrated bias in favor of the state as well as an inability to objectively consider evidence. Likewise, the trial court’s recent and shocking decision to grant the State’s ex Page 1 of 13parte request to unseal the record—without even a contradictory hearing — thereby allowing the State unfettered access to particularized defense strategy, including the need for and intended use for experts is unconscionable and may very well warrant dismissal of the entire case. After all, the entire purpose of excluding the Calcasieu Parish District Attorney's Office from the initial indigency proceedings as well as sealing the record thereafter was to prevent the State from learning particularized defense strategy. Accordingly, for the following reasons to wit, Judge Michael Canaday must be recused from this case. RULING NO. 1: DEFENDANT'S MOTION TO SUPPRESS HIS CONFESSION First, on September 19, 2017, following a hearing on defendant's Motion to Suppress which spanned three days, the trial court found the defendant's confession was free and voluntary. (Exhibit A en globo, August 25, 2017, September 5, 2017 and September 19, 2017 Transcripts). Furthermore, as part of its ruling, the trial court specifically found that Mr. Bartie “was never intimidated or gave any indications he would say whatever it would take to end the interview.” (Exhibit A en globo, see September 19, 2017 transcript, pages 60-61). In addition, the trial court found that the defendant stopped the interview several times and never exercised his right to remain silent. (Exhibit A en globo, see September 19, 2017 transcript, pages 59-61). Needless to say, there was zero support in the record for the trial court's findings and in fact the record evidence proved the trial court's findings blatantly false. (Exhibit B, Defendant's First Writ filed on February 21, 2018). (Exhibit A en globo). Accordingly, just as the Third Circuit later held, on numerous occasions during the interrogation video Mr. Bartie repeatedly stated to the interrogators that he was just trying to tell them what they needed so he could go home. (Exhibit C, Third Circuit ruling from September 25, 2019). Likewise, and again just as the Third Circuit ruled, contrary to the trial court's findings, the interview never ceased and the defendant did in fact clearly and unequivocally exercise his right to remain silent. Id. (Exhibit D, Third Circuit ruling from March 22, 2018). For the same reasons, in response to the writ filed by defendant, the Third Circuit correctly overturned the trial court on March 22, 2018 Page 2 of 13finding police misconduct mandated Defendant's May 31, 2016 confession be suppressed under Miranda v, Arizona, 384, U.S. 436, 86 S.Ct. 1602 (1966), and Michigan v. Mosley, 423 US. 96, 96 S.Ct. 321 (1975). (Exhibit B, Defendant's First Writ filed on February 21, 2018). (Exhibit D, Third Circuit ruling from March 22, 2018) The Louisiana Supreme Court subsequently denied the State’s Writ of Certiorari challenging the Third Circuit's opinion, (Exhibit B). This still wouldn’t stop the trial court from subsequently finding the confession admissible as impeachment evidence — another ruling the Third Circuit was forced to overturn. Defense counsel will address this decision by the trial court later herein. (Exhibit C, Third Circuit ruling from September 25, 2019), In terms of recusal, one has to ask—how is it possible that all three reviewing Judges at the Third Circuit found “no doubt” the defendant's confession was not free and voluntary yet the trial court found the same confession to be free and voluntary beyond a reasonable doubt? (Exhibit C, Third Circuit ruling from September 25, 2019). (Exhibit A en globo, see September 17, 2017 Transcript, pages 59-61). Likewise, how is it possible that all three reviewing Judges at the Third Circuit found the defendant “repeatedly stated to the interrogators that he was just trying to tell them what they needed so he could go home” yet the trial court found the defendant “was never intimidated or gave any indications he would say whatever it would take to end the interview”? Id. The answer, in defense counsel's humble opinion—it’s not possible without bias. For the same reason, the discrepancies between the trial court's findings and the record evidence (which the Third Circuit relied on) clearly satisfy the requirements outlined in State v. Daigle, 2018-0634 (La. 4/30/18) 241 So.3d 999; Rippo ». Baker, 239 USS. 807, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017); and State v. LaCaze, 16- 0234 (La. 3/13/18), 239 So.3d. 807, 2018 WL 1281112. RULINGS NO. 2 & 3: DEFENDANT’S SECOND MOTION TO SUPPRESS AND MOTION FOR CLARIFICATION Next, in response to the defendant's filing a second motion to suppress after learning of the State's intent to use a statement obtained the day after the alleged confession wherein the defendant referenced his illegal confession, the trial court ruled Page 3 of 13the defendant's second motion to suppress untimely. (Exhibit F, February 11, 2019 Transcript pages 59-62). Further, despite the Third Circuit's previous ruling finding the confession inadmissible, the trial court also ruled the State could use the confession as impeachment evidence. Id. The Third Circuit forcefully overturned each of these decisions by the trial court on September 25, 2019. (Exhibit C), As for the trial court's ruling that defendant's second motion to suppress was untimely, the Third Circuit literally found it was absolutely necessary for the defendant to file the second motion to suppress. (Exhibit C, Third Circuit ruling from September 25, 2019). As for the trial court's decision to allow the State use of the defendant's confession (the one previously ruled inadmissible on March 22, 2018 by the Third Circuit), the Third Circuit forcefully overturned the trial court, specifically finding the defendants confession not free and voluntary “for a variety of reasons.” Id. Stated another way, in defense counsel’s humble opinion, the Third Circuit essentially suggested the trial court’s decisions were not even close to correct. As such, viewed collectively with all of the trial court’s other rulings/action in this case, such easily satisfies the burden outlined in State v. Daigle, 2018-0634 (La. 4/30/18) 241 So.3d 999; Rippo v. Baker, 239 U.S. 807, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017); and State v. LaCaze, 16-0234 (La. 3/13/18), 239 So.3d. 807, 2018 WL 1281112. RULING NO. 4: DEFENDANT’S MOTION FOR INDIGENCY DETERMINATION AND REQUEST FOR ANCILLARY SERVICES The trial court also ruled on April 5, 2019 that the defendant was not indigent. To that end, the hoops the trial court made the defense jump through before retroactively ruling the defendant wasr’t indigent are well documented in defendant's Third Writ to the Third Circuit. (Exhibit G, Defendant's Third Writ filed on August 20, 2019). Regardless, the trial court found the defendant wasn’t indigent despite declaring the defendant indigent on multiple occasions for purposes of receiving transcripts, despite a plethora of evidence showing the defendant was in fact indigent, despite the Chief Defender of the 14 Judicial District Public Defender’s Office declaring the defendant indigent in open court, and despite the defendant being presumed indigent for Page 4 of 13purposes of La. RS, 15:175A(1)(b). (Exhibit G, Defendant's Third Writ filed on August 20, 2019). Not surprisingly, the Third Circuit also overturned this ruling by the trial court finding it another abuse of discretion. (Exhibit H, Third Circuit ruling from September 11, 2019). Again, viewed collectively with all of the trial court's other rulings /action in this case, such easily satisfies both prongs of proof outlined in State o. LaCaze, 16-0234 (La. 3/13/18), 239 $0.3. 807, 2018 WL 1281112. RULING NO. 5: GRANTING OF STATE’S REQUEST TO UNSEAL On September 30, 2019, the trial court granted ex parte a request by the State to unseal the record associated with the defendant's indigency proceedings—this despite knowing full well that those proceedings contained specific insight into the defendant's strategy for defending his case, including particularized reasons for the need and intended use of expert witnesses. Again, the entire purpose of excluding the Calcasieu Parish District Attorney's Office from the initial indigency proceedings as well as sealing the record thereafter was to prevent the State from learning of protected and privileged defense strategy information in the first place. Defense counsel has already filed a Motion and Order to Preserve Evidence related to the State's actions in filing the ‘Motion and Order to Unseal. A copy of defense counsel’s Motion together with a copy of the State’s Motion and Order to Unseal is attached hereto. (Exhibit I en globo), Notwithstanding, prior to any copy of the State’s Motion and Order to Unseal being delivered to defense counsel or defense counsel being notified in any way of the State's intent to file its motion, Judge Michael Canaday signed the State’s motion thus unsealing the record of these proceedings and allowing the State immediate unfettered access to previously protected portions of transcripts and exhibits. Critically, contained within these previously protected portions of transcripts and exhibits are specific and particularized explanations from defense counsel outlining defense strategy, including detailed and thorough explanations of the defense’s need for and intended use of experts in the defense’s case together with specific reference to evidence previously turned over by the State which the defense intends to counter via said experts. Needless Page 5 of 13to say, in terms of the defendant's right to a fundamentally fair process, the damage here is irreparable. Furthermore, after presenting and having Judge Michael Canaday execute the Motion and Order to Unseal, and still prior to any copy of the motion being delivered to defense counsel or defense counsel being notified in any way of the motion, employees of the Calcasieu Parish District Attorney's Office then immediately proceeded to the Calcasieu Parish Clerk of Court's Office where they viewed the record of these proceedings and made copies of previously sealed/ protected documents. Té must be emphasized that the indigency proceedings were conducted as part of the procedures required by Judge Canaday and the law and conducted outside the presence of the Calcasieu Parish District Attorney’ Office, whose office was specifically ordered to remain outside of the courtroom over the course of the proceedings for the specific purpose of preventing the State from gaining knowledge of defense strategy or other privileged defense related information. Likewise, the Calcasieu Parish District Attorney’s Office was never privy to this information for that specific purpose. Indeed, the entire purpose of sealing the record in this matter was to further protect any privileged information related to defense strategy from the State. Why then the State suddenly believed they were entitled to this information—further, why the Court would allow them to view it in an ex parte manner (i.e. no notice or contradictory hearing) is inexplicable. Shockingly, despite the State being excluded from the courtroom for the specific purpose of protecting privileged information related to defense strategy, despite not being privy to this information from the outset, despite the record being sealed to farther protect this information from the State, and despite Judge Canaday’s awareness of all of this, neither the State nor Judge Canaday acted to protect this information or the fairness of the proceedings against the defendant. On the contrary, without a contradictory hearing and before any notice was given to defense counsel, the Judge signed the Order unsealing the records and the State quickly went to the Calcasieu Parish Clerk of Court and copied the privilege information. In doing so they Page 6 of 13circumvented the fundamental fairness of the trial and the defendant's constitutional rights. As such, the trial court’s actions here suggest bias and easily satisfy the requirements outlined in State v. Daigle, 2018-0634 (La. 4/30/18) 241 So.3d 999; Rippo v. Baker, 239 US. 807, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017); and State v. LaCaze, 16- 0234 (La. 3/13/18), 239 So.3d. 807, 2018 WL 1281112. LAW AND ARGUMENT No proof of actual bias is necessary. All that is required is the probability of bias which rises to too high a level to be constitutionally tolerable. All litigants, whether engaged in civil or criminal cases, have a right to due process of law and a trial in front of an impartial tribunal. Louisiana Code of Criminal Procedure article 671 provides the following grounds for recusal: “A, Ina 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; 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; @) 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) Isa witness in the cause; (©) 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.” Finally, a Judge should recuse himself in a proceeding in which the judge's impartiality might reasonably be questioned and shall recuse himself or herself in a proceeding in which disqualification is required by law or..... Supreme Court rule.” Louisiana Code of Judicial Conduct, Canon 3(C) Previously, Louisiana courts required proof of actual bias. Recently, however, the Louisiana Supreme Court has adopted a standard that “recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” State v. Daigle, 2018-0634 (La. Page 7 of 134/30/18) 241 So.3d 999, The Court further pointed out that “the Rippo standard requires proof that an appearance of bias gives rise to ‘a probability of actual bias....”” Id, citing Slate v, LaCaze, 16-0234 (La. 3/13/18) 239 So.3d 807. “Evidence of actual bias is not necessary to require recusal.” Id, at 999, citing Rippo o. Baker, 239 US. 807 (2017) and State v. LaCaze, 16-0234 (La. 3/13/18) 239 So.3d 807. This standard brings Louisiana in line with the Federal Courts, which have used a similar standard for years. Daigle was a criminal case which arose out of this very Court, wherein the victim’s widow had a long history of working with the assigned judge, as she was an employee of the Court, and the Judge had a social media relationship with the victim's widow. The Judge had also taken steps barred by the Code of Criminal Procedure which, absent correction by the Third Circuit, would have thwarted another judge from considering recusal. The Supreme Court in that case determined that given the circumstances, recusal was necessary. Here, an objective, well-informed, observer could reasonably question Judge Canaday's impartiality. Accordingly, the probability or risk of bias is too high to be constitutionally tolerable. Given the trial court's decisions as outlined above, including the trial court’s most recent action in granting the State's ex parte request to unseal the record in this case, recusal is clearly warranted. It is a basic tenant of the legal profession, and even more so a hopeful statement of purpose, that Judges are presumed to be impartial. However, given Judge Canaday's decisions in this case, the probability of actual bias on the part of Judge Canaday is too high to be constitutionally tolerable and he must be recused from this matter, The defendant and the public deserve to know that the decisions in this case are being made by an impartial decisionmaker—which is no longer possible with Judge Canaday presiding over this case. For all the foregoing reasons, Mr. Bartie believes that Judge Canaday’s record of action in this case, culminating in this latest decision by him to, without a contradictory hearing, unseal the record of the funding proceedings and allow the State unfettered access to defense counsel's strategy constitute grounds for recusal pursuant to La. C.CrP, Art. 671 as well as the Code of Judicial Conduct, Canon 3(C). Page 8 of 13Accordingly, Mr. Bartie moves that Judge Canaday recuse himself pursuant to La. C.CrP. Art. 672 or, if not, this motion be referred for hearing in accordance with La, C.CeP. Art, 674, through the random allotment of cases pursuant to La. CrP. Art 675. WHEREFORE, Mr. Bartie prays that Judge Canaday recuse himself pursuant to La. CCrP. Art. 672 or, if not, this motion be set for hearing in accordance with La. C.CeP. Art. 674 et seq,, and that after due proceedings Judge Michael Canaday be xecused from this matter. Respectfully submitted, 910 Ford Street Lake Charles, LA 70601 ADAM P. JOHNSON, #32515 TODD S. CLEMONS, #18168 JANET D. MADISON, #3749 Attorneys for Dennis Bartie Page 9 of 13STATE OF LOUISIANA : 147 JUDICIAL DISTRICT COURT VS. NO. 1261-16 : PARISH OF CALCASIEU DENNIS JEROME BARTIE : STATE OF LOUISIANA FILED: eee DEPUTY CLERK OF COURT ORDER Considering the foregoing: Pursuant to La. C.Cr-P. Art. 672, [hereby recuse myself from this case. Accordingly, IT IS HEREBY ORDERED that Mr. Bartie’s case be assigned for random allotment pursuant to local district court rule. THUS DONE AND SIGNED in Lake Charles, Louisiana, on this _ day of October, 2019, HONORABLE JUDGE G. MICHAEL CANADAY PLEASE SERVE: John DeRosier, District Attorney Calcasieu Parish District Attorney's Office 901 Lakeshore Dr. Lake Charles, LA 70601 Hugo Holland, Special Prosecutor Calcasieu Parish District Attorney's Office 901 Lakeshore Dr. Lake Charles, LA 70601 Elizabeth Hollins, Assistant District Attorney, Calcasieu Parish District Attorney’ Office 901 Lakeshore Dr. Lake Charles, LA 70601 Page 10 of 13STATE OF LOUISIANA. 14TH JUDICIAL DISTRICT COURT VS. NO. 1261-16 : PARISH OF CALCASTEU DENNIS JEROME BARTIE : STATE OF LOUISIANA FILED: DEPUTY CLERK OF COURT ORDER Considering the foregoing: IT IS HEREBY ORDERED that this Motion to Recuse be referred for random allotment pursuant to La. C.CrP. Art, 675, to be set for hearing at the nearest availability. THUS DONE AND SIGNED in Lake Charles, Louisiana, on this day of October, 2019. HONORABLE JUDGE G. MICHAEL CANADAY PLEASE SERVE: John DeRosier, District Attorney Calcasieu Parish District Attorney's Office 901 Lakeshore Dr. Lake Charles, LA 70601 Hugo Holland, Special Prosecutor Calcasieu Parish District Attorney's Office 901 Lakeshore Dr. Lake Charles, LA 70601 Elizabeth Hollins, Assistant District Attorney Calcasieu Parish District Attorney's Office 901 Lakeshore Dr. Lake Charles, LA 70601 Page 11 of 13,STATE OF LOUISIANA. 147 JUDICIAL DISTRICT COURT ‘VS. NO. 1261-16 : PARISH OF CALCASIEU DENNIS JEROME BARTIE : STATE OF LOUISIANA FILED: DEPUTY CLERK OF COURT ORDER Considering the foregoing motion and considering that the Foregoing Motion has been randomly allotted, pursuant to La. C.Cr.P. Art, 671 et seq. , to be heard by the Honorable IT IS HEREBY ORDERED that this Motion is fixed for hearing at A.M, on the day of, 2019. THUS DONE AND SIGNED in Lake Charles, Louisiana, on this day of October, 2019, JUDGE, 147 JUDICIAL DISTRICT COURT PLEASE SERVE: John DeRosier, District Attorney Calcasieu Parish District Attorney's Office 901 Lakeshore Dr. Lake Charles, LA 70601 Hugo Holland, Special Prosecutor Calcasieu Parish District Attorney’s Office 901 Lakeshore Dr. Lake Charles, LA 70601 Elizabeth Hollins, Assistant District Attorney Calcasieu Parish District Attorney’s Office 901 Lakeshore Dr. Lake Charles, LA 70601 Page 12 of 13CERTIFICATE OF SERVICE I do hereby certify that a copy of the above and foregoing Motion to Recuse with Incorporated Memorandum in Support has been served upon: John DeRosier, District Attorney Calcasieu Parish District Attorney’s Office 901 Lakeshore Dr. Lake Charles, LA 70601 Hugo Holland, Special Prosecutor Calcasieu Parish District Attorney's Office 901 Lakeshore Dr. Lake Charles, LA 70601 Elizabeth Hollins, Assistant District Attorney Calcasieu Parish District Attorney’s Office 901 Lakeshore Dr. Lake Charles, LA 70601 Via e-mail and hand delivery this 2 day of October, 2019. 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