Louisiana Supreme Court: State Abused Charging Authority by Dismissing and Reinstituting Charges to Circumvent Adverse Court Ruling
by Anthony Accurso
The Supreme Court of Louisiana held that the district attorney’s office abused its charging authority when it dismissed, then immediately refiled, charges against a defendant to circumvent the trial court’s decision to exclude the State’s expert witness.
In December 2016, Fred Reimonenq was indicted in Orleans Parish on charges of first-degree rape, attempted first-degree rape, and sexual battery of a victim under the age of 13. Reimonenq’s trial was scheduled to start September 25, 2018.
Two days prior to trial, the State submitted to defense counsel the curriculum vitae of Dr. Anne Troy, Ph.D., a sexual assault nurse examiner. However, it wasn’t until the morning of the trial that the State notified the defense that it planned to use Dr. Troy as a witness to interpret the results of the victim’s post-assault exam.
The defendant filed a motion to exclude Dr. Troy’s testimony because the State had failed to notify the defense of its intent to use Dr. Troy in a timely manner under La.C.Cr.P. art. 719, which made it difficult or impossible to prepare a defense without such notice. The trial court granted defense’s motion citing prejudice to the defendant. In response, the State entered a nolle prosequi, dismissing the charges.
It refiled those same charges two days later, and a new trial was set for December 3. On November 27, the State filed to supplement its evidence, seeking to add Dr. Troy’s testimony. The defense again sought to exclude the testimony, this time on the grounds that the State’s actions denied the defendant a fair trial on its original date. The trial court denied the defense’s motion without elaboration.
On appeal of this decision, the Louisiana Supreme Court discussed the separation of powers inherent in the State Constitution and a defendant’s right to a speedy and fair trial under the Fourteenth Amendment to the U.S. Constitution.
The State, through district attorneys, has broad discretion to file or dismiss charges, subject to very few limitations. A dismissal is generally not a bar to subsequent prosecution for the same offense. La.C.Cr.P. art. 693. However, the Court explained that district attorneys do not have unfettered “authority to undermine trial court proceedings and evade appellate review.”
The Louisiana Supreme Court has primarily explored the limits of prosecutorial authority and discretion through the speedy trial lens, generally when such refilings cause prejudice to the defense through extended delays in prosecution.
In this vein, the Court recounted previous cases in which the prosecution appropriately exercised its discretion, including State v. Batiste, 939 So.2d 1245 (La. 2006). In Batiste, the State dismissed and the refiled charges because the victim was unsure if she was willing to testify in court, but she later (about a month) rallied her courage to do so. The court in that case found that “there was a legitimate reason for a nolle prosegui” because “the record reveals no intentional delay on the State’s part for the purpose of gaining a tactical advantage.”
Similarly, in State v. King, 60 S.3d 615 (La. 2011), the State entered an order of nolle prosequi and later reinstituted the charges. The State entered the order only after a bank failed to produce records that had been subpoenaed, and the trial court denied a request for a continuance. The King Court concluded that the State’s behavior was appropriate, explaining that the State didn’t dismiss and reinstitute the charges to gain “a tactical advantage over the defense, or that it was whipsawing defense witnesses by forcing them to make repeated but futile trips to the courthouse….”
According to the Court, the current case is distinguished from the foregoing cases because the record was clear that the State’s reason for the dismissal and refiling was to circumvent the trial court’s decision to exclude the State’s witness as a result of the State’s “failure to follow the applicable procedures.” Such conduct violates the balance of powers by depriving the trial court of its authority “to so control the proceedings that justice is done.” La.C.Cr.P. art. 17.
The Court ruled that the State abused its authority by dismissing, then refiling the charges against Reimonenq. In doing so, the State “violated defendant’s right to due process and fundamental fairness when it exercised its authority to dismiss and reinstitute a prosecution not only to gain a continuance, but to nullify a trial court’s correct evidentiary ruling and flout appellate review,” the Court concluded.
Accordingly, the Court allowed the prosecution to continue with the stipulation that the State is prohibited “from offering the testimony of Dr. Anne Troy or any other expert who may offer comparable testimony.” See State v. Reimonenq, 2019 La. LEXIS 2692 (2019).
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Related legal case
State v. Reimonenq
|2019 La. LEXIS 2692 (2019)
|State Supreme Court