A Louisiana death-row pris­on­er is ask­ing the U.S. Supreme Court to review the con­sti­tu­tion­al­i­ty of his con­vic­tion and death sen­tence a sec­ond time based upon alle­ga­tions that the tri­al judge had an undis­closed con­flict of inter­est. In his peti­tion to review his con­vic­tion for a triple-mur­der involv­ing the death of a New Orleans police offi­cer, Rogers Lacaze (pic­tured) argues that his right to due process was vio­lat­ed when his tri­al judge, Frank Marullo, failed to dis­close that the judge had signed a court order releas­ing the prob­a­ble mur­der weapon to Lacaze’s co-defen­dant and that Marullo was a wit­ness in a New Orleans Police Department inves­ti­ga­tion into the cir­cum­stances in which the weapon had been released. Judge Marullo then won re-elec­tion by a mar­gin of 51%-49%, after run­ning a cam­paign say­ing he was ​“tough on crime” and had sen­tenced ​“Lacaze to die by lethal injec­tion.” Lacaze was con­vict­ed of a triple mur­der involv­ing a 9mm gun his co-defen­dant — police offi­cer Antoinette Frank — had obtained from the New Orleans Police Department prop­er­ty and evi­dence room short­ly before the killing. The order releas­ing the gun to Officer Frank bore Judge Marullo’s sig­na­ture, and Marullo presided over Lacaze and Frank’s tri­als. Before being assigned to the tri­als, Marullo was inter­viewed by police inves­ti­gat­ing the crime. The judge claimed his sig­na­ture had been forged, but the offi­cer in charge of the evi­dence room said he had per­son­al­ly giv­en the form to Marullo’s clerk, who took it into cham­bers and returned with the signed order. Marullo sub­se­quent­ly refused a police request for a sec­ond inter­view on the grounds that he was pre­sid­ing over the tri­als. Marullo did not inform Lacaze of his con­nec­tion to the mur­der weapon, even after Lacaze tes­ti­fied that he was not involved in the mur­ders, but that Frank had told him she was going to get a gun from the evi­dence room. When Lacaze’s attor­neys lat­er learned of Marullo’s con­nec­tion to the weapon, they filed an appeal chal­leng­ing his fail­ure to recuse him­self. The Louisiana Supreme Court dis­missed the appeal. In 2017, Lacaze peti­tioned the U.S. Supreme Court for the first time, and the Court vacat­ed the Louisiana Supreme Court’s deci­sion and remand­ed the case for fur­ther review based upon its March 2017 deci­sion in Rippo v. Baker, which found ​“an uncon­sti­tu­tion­al poten­tial for bias” requir­ing recusal when a tri­al judge was being crim­i­nal­ly inves­ti­gat­ed by the same pros­e­cu­tor’s office that was pros­e­cut­ing the defen­dant. On remand, the Louisiana court once again reject­ed the appeal, say­ing that Lacaze had not shown a ​“prob­a­bil­i­ty of actu­al bias” by Judge Marullo against any spe­cif­ic par­ty in the case. Lacaze’s peti­tion is sup­port­ed by friend-of-the-court briefs by ten for­mer state and fed­er­al tri­al and appel­late court judges, experts in judi­cial ethics and judi­cial elec­tions, and more than thir­ty asso­ci­a­tions of crim­i­nal defense lawyers. The ami­cus brief of the for­mer judges warns that the Louisiana court’s deci­sion ​“pro­vides license not sim­ply to pre­side over a cap­i­tal mur­der case despite per­son­al con­nec­tions to the under­ly­ing facts — but to with­hold dis­clo­sure of those con­nec­tions entire­ly.” Allowing this type of ​“star­tling” judi­cial con­flict of inter­est, they write, ​“threat­ens the legit­i­ma­cy of not just Mr. Lacaze’s con­vic­tion and sen­tence, but of the admin­is­tra­tion of jus­tice.” Writing for the American Constitution Society blog, Lawrence J. Fox, coun­sel of record on the brief filed by the Ethics Bureau at Yale Law School, said ​“well-estab­lished con­sti­tu­tion­al due process require­ments make clear that Judge Marullo should have recused him­self” from the case. ​“Fair and impar­tial judges are the foun­da­tion stone of fair courts, fair tri­als, and just results,” Fox wrote. ​“There’s too much at stake in Mr. Lacaze’s case for the U.S. Supreme Court not to inter­vene.” Briefing in the case was com­plet­ed on August 27. The Supreme Court is sched­uled to rule lat­er this month on whether to hear the case.

Lacaze also argues that his right to an impar­tial jury was vio­lat­ed when two jurors — includ­ing a police dis­patch­er who was present in the dis­patch room when the 911 call was received and attend­ed the slain offi­cer’s funer­al — who ​“with­held their career-long employ­ment by law enforce­ment” served on his jury, along with a third juror who ​“did not dis­close that her own two sib­lings had been murdered.”

(Jordan S. Rubin, Judge Conflict Tainted Trial, Convict Tells Supreme Court, Again, Bloomberg Law, August 30, 2018; Lawrence J. Fox, Louisiana’s Ongoing Ethical Crisis: Why SCOTUS Should Weigh In On The Case Of Rogers Lacaze, American Constitution Society blog, August 21, 2018.) See U.S. Supreme Court.

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