State of Louisiana Versus Walter Sippio

STATE OF LOUISIANA NO. 23-K-426

VERSUS FIFTH CIRCUIT

WALTER SIPPIO COURT OF APPEAL

STATE OF LOUISIANA

September 01, 2023

Linda Wiseman First Deputy Clerk

IN RE WALTER SIPPIO

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD L. FORET, DIVISION "H", NUMBER 21-5042

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and John J. Molaison, Jr.

WRIT GRANTED; RULING ON MOTION TO WITHDRAW REVERSED; MOTION TO WITHDRAW GRANTED

Relator, Walter Sippio, seeks this Court’s supervisory review of the trial court’s August 24, 2023 ruling which denied his counsel’s Motion to Withdraw. Trial on the merits of this matter is set for September 11, 2023.

The State filed a “Response” to the writ application, asserting therein that defense counsel should be allowed to withdraw. For the following reasons, we find that the trial court abused its discretion in denying the Motion to Withdraw. We accordingly reverse the trial court’s ruling on the Motion to Withdraw and grant the Motion to Withdraw.

Eusi Phillips, counsel for defendant, represented defendant in his first trial, which ended in a mistrial due to a hung jury on May 10, 2023. In August of 2023, Mr. Phillips accepted a position with the St. John the Baptist Parish District Attorney’s Office, beginning on September 1, 2023. Mr. Phillips informed the trial court of such on August 23, 2023, and filed a Motion to Withdraw on August 24, 2023, which the trial judge denied, citing the September 11, 2023 trial date. Mr. Phillips requested a stay of the trial, which was also denied.

Article V, § 26 (C) of the Louisiana Constitution provides that “no district attorney or assistant district attorney shall appear, plead, or in any way defend or assist in defending any criminal prosecution or charge. A violation of this Paragraph shall be cause for removal.” Rule of Professional Conduct l.l6(a) requires that a lawyer timely withdraw from representation when continuing the representation would violate the Rules of Professional Conduct or other law. La. C.Cr.P. art. 65 provides in pertinent part that “[i]t is unlawful for the following officers or their law partners to defend or assist in the defense of any person charged with an offense in any parish of the state: ... [a]ny district attorney or assistant district attorney.”

The State points out in its Response that while it does not impugn defense counsel’s integrity or adherence to the Rules of Professional Conduct, his continuing to represent defendant in the instant case could create the appearance of impropriety and cast an unnecessary specter over this case. The State argues that if defendant is convicted at trial, he could urge in a post-conviction relief application that defense counsel had a conflict of interest given his pending employment as an assistant district attorney, or that defense counsel “threw the case” given that defense counsel immediately thereafter commenced work as an assistant district attorney. It further argues that while those allegations would be meritless, they represent an unnecessary and easily avoidable issue.

In State v. Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, 887, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), the history of the case showed that a defense attorney’s motion to withdraw was granted after he accepted a job with the Jefferson Parish District Attorney’s Office.

The grant or denial of a motion to withdraw as counsel is within the “well founded” discretion of the trial court. State v. Stewart, 493 So.2d 227, 232 (La. App. 5 Cir. 1986) (citing State v. Franks, 284 So.2d 584 (La. 1973)).

Considering that there has been one previous mistrial in this matter, the integrity of the proceeding against relator must be protected, even at the risk of trial not going forward on September 11, 2023. Under the circumstances presented, we find that it was an abuse of the trial court’s discretion to deny Mr. Phillips’s Motion to Withdraw. Defense counsel has accepted a position as an assistant district attorney in St. John the Baptist Parish with a start date of September 1, 2023. This position would legally bar defense counsel from performing criminal defense work, which would include representing defendant in the instant case after September 1, 2023. See La. Const. Ann. art. V, § 26; La. C.Cr.P. art. 65. Also, defense counsel should be allowed to withdraw to avoid the suggestion of impropriety which could arise. See Official Revision Comment (a) to La. C.Cr.P. art. 65. Further, the State agrees that defense counsel should be allowed to withdraw. Under these particular circumstances, we find that the trial court abused its discretion in denying defense counsel’s Motion to Withdraw. Accordingly, the writ application is granted; the trial court’s ruling on the Motion to Withdraw is reversed; and the Motion to Withdraw is granted.

Gretna, Louisiana, this 1st day of September, 2023.

JGG SJW JJM

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. SCOTT U. SCHLEGEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 09/01/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-K-426 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Donald L. Foret (DISTRICT JUDGE) Thomas J. Butler (Respondent) Eusi H. Phillips (Relator) Darren A. Allemand (Respondent)

MAILED Honorable Paul D. Connick, Jr. (Respondent) District Attorney Twenty-Fourth Judicial District 200 Derbigny Street Gretna, LA 70053