State Of Louisiana v. Walter Johnson

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #037
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of September, 2021 are as follows:
PER CURIAM:
2020-K-00743 STATE OF LOUISIANA VS. WALTER JOHNSON (Parish of Ascension)
REVERSED. SEE PER CURIAM.
Weimer, C.J., additionally concurs and assigns reasons.
Hughes, J., dissents and would affirm the court of appeal.
Crichton, J., additionally concurs and assigns reasons.
Crain, J., additionally concurs and assigns reasons.
McCallum, J., concurs in the result and assigns reasons.
Griffin, J., additionally concurs for the reasons assigned by Chief Justice Weimer.

09/
30/21
S
UPREME COURT OF LOUISIANA
N
o. 2020-K-00743
S
TATE OF LOUISIANA
v
ersus
W
ALTER JOHNSON
ON
WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF ASCENSION
P
ER CURIAM:
T
he State alleges that on July 14, 2015, defendant Walter Johnson, JaQuendas
Octave, Jay Lyons, and Casey Johnson took jewelry, cell phones, wallets, money, and
credit cards at gunpoint from Roussel’s Antiques on Airline Highway in Gonzales and
from the store’s employees. On September 30, 2015, the State charged defendant and
the others with four counts of armed robbery committed with the use of a firearm, La.
R.S. 14:64 and 14:64.3. The State also charged defendant with possession of a firearm
by a person convicted of certain felonies, La. R.S. 14:95.1.
Defendant’s trial was set for June 21, 2017, with a status hearing scheduled for
April 17, 2017. However, defendant was not transported to court on April 17. The trial
court reset trial for the week of January 22, 2018, and advised the parties that this was
a special setting and no further continuances would be granted.
On December 18, 2017, the State turned over to the defense 800 pages of
discovery. On January 11, 2018, the trial court granted defendant’s motion to continue
trial because of the State’s recent discovery disclosure. The court reset the trial for
October 15, 2018, a date proposed by the State. The trial court again advised the

2

parties that no further continuances would be granted.
On May 5, 2018, co-defendant JaQuendas Octave wrote a statement indicating
that neither defendant nor co -defendant Jay Lyons was involved in the robbery.
Nonetheless, on May 22, 2018, JaQuendas Octave pleaded guilty with the agreement
that he would testify as a witness for the State at defendant’s trial.
On October 1, 2018, the State sought a continuance, citing scheduling conflicts
with other trials. The trial court denied the State’s motion and observed that it had set
defendant’s trial date in January, before the dates of the other conflicting trials were
selected. On October 12, 2018, the Friday before trial, the State filed another motion to
continue. In it, the State argued that a material witness, an FBI Agent, was unavailable.
The State also contended that it could not adequately prepare for trial without knowing
whether Mr. Octave would testify in accordance with his written statement or in
accordance with his plea agreement.
Defendant also filed a motion to continue at that time. In defendant’s motion, he
sought a continuance in order to prepare a motion to recuse t he trial judge, to
investigate the implications of a plea offered by the State, and to conduct a preliminary
examination. In addition, defendant contended that, because the State was by now
seeking to set aside Mr. Octave’s guilty plea, and because their cases had never been
severed, trying them together would prejudice his defense. Finally, defendant
contended that the State had only just disclosed that there were recorded jailhouse
conversations pertaining to the case.
Trial did not begin on October 15, 2018, because the State again failed to
arrange for defendant to be transported to court.
1 Therefore, the trial court instructed

1 The State also did not arrange for Mr. Octave to be transported to court, although his lawyer
was present and prepared to advise him.

3

the venire to return for jury selection the next day. On October 16, 2018, the trial court
held a hearing on the motions to continue. The trial court addressed the State’s motions
first.
The trial court denied the State ’s motion to set aside Mr. Octave ’s plea
agreement because it had not yet been violated. The trial court also found that a
continuance was not warranted because the conflicting statement (in which Mr. Octave
claimed defendant and Mr. Lyons were not involved in the robbery) was made before
the plea agreement was reached, approximately five months before the trial date.
The trial court also denied the State’s motion to continue based on an absent FBI
agent witness. The trial court observed that the State had not subpoenaed the witness.2
The State had also not contacted the witness to determine when he would be available
despite the trial court’s request that the State do so.
After resolving the State’s motions, the trial court addressed defendant’s motion
to continue. As noted above, defendant contended that he required a continuance
because: (1) he wanted time to submit a motion to recuse the trial judge; (2) he wanted
time to review the implications of a plea offer extended by the State; (3) he had not
received copies of his co -defendants’ plea agreements; ( 4) he was dissatisfied that
counsel had failed to present oral argument with regard to his pro se motions; (5) he
sought a preliminary examination; (6) the State had moved to withdraw Mr. Octave’s
plea agreement; and (7) on October 11, 2018, the S tate notified the defense of the
existence of jailhouse recordings between defendant and various parties that may be
introduced at trial.
After the trial court denied the State ’s motions, defense counsel informed the
trial court that the sixth reason above, pertaining to the State’s efforts to set that plea

2 In additional to failing to subpoena the FBI Agent, the State did not issue subpoenas for any of

4

aside, was moot. Defense counsel also indicated that the first and second reasons,
pertaining to recusal and the plea offer, had been resolved on the preceding day. As to
the fourth reason, pertaining to the pro se motions, defense counsel stated that it was
resolved after the trial court indicated it would issue reasons for judgment regarding its
denial of the pro se motions before trial. The trial court then denied the defense motion
to continue.
In light of th e unfavorable rulings on its motions to continue, the State then
announced that it was entering an order of nolle prosequi. Defendant objected. Later
that day, the State filed a new bill of information charging defendant with the same
crimes.
After several delays, none of which were attributable to the defense, trial was set
September 16, 2019, nearly one year after the dismissal and reinstitution. On July 8,
2019, defendant filed a motion to quash contending that State exercised its authority to
dismiss and reinstitute to evade the limitations period of La.C.Cr.P. art. 578 and that
the State had flaunted its authority to dismiss and reinstitute . The trial court held a
hearing on the motion on August 19, 2019 (after continuing the hearing at the State’s
request). After argument, the trial court granted the motion to quash. The trial court
found that the State had flaunted its authority to dismiss and reinstitute to, in effect,
grant itself the continuance the trial court had denied, and that the State had done so as
a dilatory tactic at defendant’s expense. While acknowledging that the unavailability of
a material witness might ordinarily justify granting a continuance, the trial court
determined that the witness unavailability was used a pretext and the State was simply
unprepared for trial.
The court of appeal reversed the trial court ’s ruling and remanded for further

the law enforcement officers it intended to call as witnesses at trial.

5

proceedings. State v. Johnson, 2019-1391 (La. App. 1 Cir. 5/11/20), 304 So.3d 448.
The court of appeal found that the trial court had abused its discretion in granting the
motion to quash because defendant was not prejudiced by the delay. T he court of
appeal observed that the United States Supreme Court identified four factors in Barker
v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which are applicable to
determining whether a defendant has been deprived of his constitutional right to a
speedy trial.3 The court of appeal acknowledged that the approximately four-year delay
here was presumptively prejudicial under the first Barker factor. However, it also
found that “[t]o meet his burden, a defendant must prove the district attorney flaunted
his authority ‘for reasons that show that he wants to favor the State at the expense of
the defendant, such as putting the defendant at risk of losing witnesses. ’” Johnson,
2019-1391, p. 10, 304 So.3d at 455 (quoting State v. Batiste , 2005-1571, p. 5 (La.
10/17/06), 939 So.2d 1245, 1249). While recognizing that the State did not refute
defendant’s assertion that he lost witnesses during the delay, the court of appeal
nonetheless found defendant failed to carry his burden of showing that the State
flaunted its authority at his expense.
This court summarized the pertinent jurisprudence in State v. Reimonenq, 2019-
0367 (La. 10/22/19), 286 So.3d 412. We wrote:
District attorneys are imbued with vast authority over criminal
prosecutions—they alone determine whom, when, and how they shall

3 This court has summarized the four Barker v. Wingo factors as follows:

The speedy trial guarantee of the Sixth Amendment to the United States Constitution
applies to prosecutions in state courts. In determining whether this constitutional
right has been offended, the fixed-time period provided by statute or court rule is not
determinative. Rath er, t he issue is determined by a balancing test, in which the
conduct of both the prosecution and the defendant are weighed. Four of the factors to
be assessed by the courts in determining, in each instance, whether a defendant has
been denied a speedy trial ar e: Length of delay, the reas on for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.

State v. Harris, 297 So.2d 431, 432 (La. 1974) (internal quotes and citations omitted).

6

prosecute and may dismiss an indictment or a count in an indictment at
their discretion without leave of court. See La. Const. art. V, § 26(B);
La.C.Cr.P. art. 61. Indeed, they alone determine whether to dismiss a
case. State v. Sykes , 364 So.2d 1293, 1297 (La. 1978). A dismissal is
generally not a bar to a subsequent prosecution for the same offense.
However, a district attorney’s exercise of this power cannot impinge on
the accused’s right to a speedy trial because that right is “‘fundamental’
and is imposed by the Due Process Clause of the Fourteenth Amendment
on the States.” Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184,
33 L.Ed.2d 101 (1972).

This Court has primarily explored the limits of the district attorney ’s
ability to dismiss and reinstitute criminal charges through the speedy trial
lens, or more generally, the delay caused when a district attorney
dismisses charges in response to a denied request for a continuance. See
State v. King, 10-2638 (La. 5/6/11), 60 So.3d 615 (per curiam); State v.
Batiste, 05-1571 (La. 10/17/06), 939 So.2d 1245; State v. Love, 00-3347
(La. 5/23/03), 847 So.2d 1198. In Love, the S tate entered an order of
nolle prosequi when[, after] the State’s witness [had previously] suffered
a heart att ack during voir dire, and the trial court denied the State’s
request for a continuance [when the witness was unavailable again two
months later] . This Court held that: (1) the unavailability of a state
witness was a legitimate reason for delaying trial under the Speedy Trial
Clause; (2) the record supported the trial court ’s decision to deny the
state’s motion for continuance based on the unavailability of the state’s
witness for valid medical reasons; (3) the trial court acted within its
discretion in denying defendant’s motion to quash; (4) a 22-month delay
in prosecuting defendant was presumptively prejudicial; but, (5)
defendant’s right to a speedy trial was not violated. Under the
circumstances presented in Love, this Court found that “the State did not
seek to gain an unfair advantage over the defendant.” Love, 00-3347, p.
12, 847 So.2d at 1208.

In Batiste, the State entered an order of nolle prosequi because the victim
was not present for trial and was unsure whether she wanted to go
forward with her testimony, and then reinstituted the charge a month
later. Defendant complained that he suffered a speedy trial violation.
Under the circumstances presented in Batiste, this court found that “there
was a legitimate reason for the nolle prosequi in this cas e,” and “the
record reveals no intentional delay on the State’s part for the purpose of
gaining a tactical advantage.” Batiste , 05- 1571, p. 6–7, 939 So.2d at
1249–50. Thus, the Batiste court found there was “no indication the
district attorney was flauntin g his authority at the expense of the
defendant ....” Id., 05-1571, pp. 5–6, 939 So.2d at 1249.

In King, the State entered an order of nolle prosequi after a bank failed to
comply with its subpoena for records, and the trial court denied its
request for a continuance. The S tate later reinstituted the charges.
Quoting from State v. Love , this court found as follows: “In situations
where it is evident that the district attorney is flaunting his authority for

7

reasons that show that he wants to favor the State at the expense of the
defendant, such as putting the defendant at risk of losing witnesses, the
trial court should grant a motion to quash[,] and an appellate court can
appropriately reverse a ruling denying a motion to quash in such a
situation.” King, 10-2638, pp. 5–6, 60 So.3d at 618 (quoting Love, 00-
3347, p. 14, 847 So.2d at 1209).

Reimonenq, 2019-0367, pp. 4–5, 286 So.3d at 415–16 (footnotes omitted; edited for
consistency).
We agree with the court of appeal’s application of some of the Barker v. Wingo
factors, but disagree in two crucial aspects. The court of appeal here applied the first
factor to determine that the lengthy delay was presumptively prejudicial, and we agree
with that determination. Second, as for the reason for the delay, the court of appeal
found neither party was singularly responsible. In making that determination, the court
of appeal was working from an imperfect record. During oral argument in this court, it
became apparent that the parties had drafted their briefs based on dif ferent and
inconsistent records. Accordingly, this court ordered that a single record be perfected
and lodged (and supplemental briefing follow). Whereas the court of appeal drew the
neutral conclusion from the imperfect record that the delays were somewhat
attributable to both parties, the perfected record confirms that the final year and a half
of delays are attributable to the State.
In reversing the trial court, the court of appeal seemed most influenced by the
fourth Barker v. Wingo factor,
4 prejudice to the accused. The court of appeal found the
trial court had abused its discretion by granting the motion to quash because “there is
nothing indicating the State, by dismissing and refiling the case, was attempting to gain

4 With regard to the third factor, which is the accused’s assertion of his right to a speedy trial, the
court of appeal found that while counsel did not invoke defendant’s right to a speedy trial until July
8, 2019, defendant pro se had previously tried to assert his right, both by filing a pro se motion and
by pursuing pro se writs of habeas corpus. Therefore, the court of appeal found “defendant
sufficiently asserted his speedy trial claim to merit consideration.” Johnson, 2019-1391, p. 9, 304
So.3d at 454–55.

8

a tactical advantage over defen dant, beyond assuring that all of its witnesses wer e
present to testify.” Johnson, 2019-1391, p. 11, 304 So.3d at 456. However, the
defendant’s assertion that he lost “four witnesses who would testify on his behalf” as a
result of the delay was uncontrover ted by the State and accepted by the trial court.
Nonetheless, the court of appeal found defendant was not prejudiced and the State was
simply trying to assure that its witnesses were present.
Respectfully, we reach a different conclusion from our colleagues on the court
of appeal. While the absence of a witness is considered a valid reason for delaying trial
under the Speedy Trial Clause, the record here supports the trial court’s finding that the
unavailability of the State’s witness was a pretext and t hat the State was simply
unprepared. In addition, t he State’s motion to continue was lacking information
required by La.C.Cr.P. art. 709.5 When the trial court inquired further at the motion
hearing, the State was unable to provide any additional information, and the State
offered the implausible explanation that, as a policy, it did not subpoena trial

5 Code of Criminal Procedure art. 709, pe rtaining to continuance based on absence of a witness ,
provides:

A. A motion for a continuance based upon the absence of a witness shall state all of
the following:

(1) Facts to which the absent witness is expected to testify, showing the materiality of
the testimony and the necessity for the presence of the witness at the trial.

(2) Facts and circumstances showing a probability that the witness will be available
at the time to which the trial is deferred.

(3) Facts showing due diligence used in an effort to procure attendance of the
witness.

B. In addition to the requirements set forth in Paragraph A of this Article, when the
motion for continuance is based upon the absence of a witness who is in the armed
forces, the moving party, either the district attorney or the defense counsel, shall
attest to facts showing that the absent witness is on active military duty in the United
States Armed Forces.

While minimally compliant with Part (A)(1), the State here failed to provide any information
regarding Parts (A)(2) or (A)(3).

9

witnesses.6 When the court requested that the State contact the witness to obtain
additional information, offering the State another opportunity to meet the procedural
requirements, the State declined to do so. The trial court likely viewed these events in
the context of the State’s failure s to arrange for the defendant to be transported to
court, the denial of the State’s request to continue trial based on scheduling conflicts,
and the State’s concern as to how Mr. Octave would ultimately testify.
The circumstances here differ significant ly from those presented in State v.
Love, 2000-3347 (La. 5/23/03), 847 So.2d 1198, in which the State entered an order of
nolle prosequi when its witness, who had previously suffered a heart attack during voir
dire, was unavailable at the subsequent resetting of trial. After reviewing the record in
Love, this court found that the trial court did not abuse its discretion when it denied
defendant’s motion to quash. As this court observed in Love, “an appellate court is
allowed to reverse a trial court judgment on a motion to quash only if that finding
represents an abuse of the trial court’s discretion.” Id., 2000-3347, pp. 9–10, 847 So.2d
at 1206. Here, the court of appeal erred in finding the trial court abused its discretion
when the record provided no basis to do so.
The State contends that defendant cannot show prejudice when he also requested
a continuance to address several concerns. However, as described above, most of those
concerns were resolved to the defendant’s satisfaction or rendered moot before the
State dismissed and reinstituted the prosecution. Just three reasons for a defense
continuance were not explicitly resolved: defendant had not received copies of his co-
defendant’s plea agreements; defense counsel explained to the court that a preliminary
exam had been scheduled but was never held; and the prosecutor “had alluded to”

6 When an officer did not appear at a subsequent preliminary hearing, the State offered as an
explanation that it had inadvertently failed to subpoena the officer. When the trial court observed that
the State previously informed the c ourt that it was not the State’s policy to issue subpoenas to

10

jailhouse conversations between defendant and another unidentified person.
Notably, two of defendant’s three unresolved reasons for continuance appear to
be the result of the S tate’s failure to provide the defense with adequate discovery.
Thus, to find that defendant was not prejudiced by t he State’s use of its authority to
dismiss and reinstitute would be to further reward the State for its shortcomings. As for
the preliminary examination, it is unclear why that hearing was not held earlier. All
that is clear i s that a preliminary hearing w as eventually held . Regardless, while
defendant may have wished for a brief continuance to address three outstanding issues,
there is no indication that he wished to delay trial for an additional year . Notably,
defendant objected strenuously when the state declared its intention to dismiss
prosecution, arguing against any additional delay once his own motion to continue was
denied.
Accordingly, we find the court of appeal erred in determining that the trial court
abused its discretion in granting defendant ’s motion to quash. Under the unusual
circumstances presented, we can find no abuse of discretion when the record supports
the trial court’s determination that the absence of the witness was a pretext and that the
State was simply unprepared for trial. Therefore, we reverse the ruling of the court of
appeal and we reinstate the trial court’s ruling.
REVERSED

officers, the State explained that it issues subpoenas for preliminary hearings but not trials.

09/30/21
SUPREME COURT OF LOUISIANA
NO. 2020-K-00743
STATE OF LOUISIANA
VERSUS
WALTER JOHNSON
On Writ of Certiorari to the Court of Appeal, First Circuit,
Parish of Ascension
WEIMER, C.J., additionally concurring.
I agree with the case-and-fact specific analysis which results in the
determination that the district court did not abuse its discretion in granting
defendant’s motion to quash. However, I write separately to point out that this case
is particularly appropriate for the application of the shifting burden of proof analysis
that I have repeatedly called for adopting that places the burden of showing that
defendant was not prejudiced by a “nolle prosequi and reinstitution” on the state,
rather than on the shoulders of the defendant. See, State v. Reimonenq, 19-0367
(La. 10/22/19), 286 So.3d 412, 418-421 (Weimer, J., concurring); State v. Love, 00-
3347 (La. 5/23/03), 847 So.2d 1198, 1215 (Weimer, J., concurring in part, dissenting
in part); State v. Batiste, 05-1571 (La. 10/17/06), 939 So.2d 1245, 1253 (Weimer,
J., dissenting); State v. King, 10-2638 (La. 5/6/11), 60 So.3d 615, 620 (Weimer, J.,
dissenting). Here, as the district court concluded and the record supports, the state
was unable to demonstrate that its stated need for the exercise of its extraordinary
“nolle prosequi and reinstitution” power was legitimate and not taken as a dilatory
tactic at defendant’s expense.

09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2020-K-00743
S
TATE OF LOUISIANA
VS.
WALTER JOHNSON
O
n Writ of Certiorari to the 1st Circuit Court of Appeal, Parish of Ascension
C
richton, J., additionally concurs and assigns reasons:
I agree with the majority that the district court did not abuse its discretion
when granting defendant’s motion to quash in this case. See State v. Love , 2000-
3347 (La. 5/23/03), 847 So. 2d 1198, 1207 (A trial judge’s responsibility to control
the district court over which he presides under La. C.Cr.P. art. 17 “frequently
includes the exercise of discretion when deciding whether to grant or deny a motion
to quash, and the duty to make reasonable rulings that protect the rights of
defendants, without placing unnecessary limits on the State's ability to prosecute
cases.”). In reversing the district court’s ruling, the court of appeal erroneously
asserted “a defendant must prove the district attorney flaunted his authority ‘ for
reasons that show that he wants to favor the State at the expense of the defendant,
such as putting the defendant at risk of losing witnesses[.]’” State v. Johnson, 2019-
1391 (La. App. 1 Cir. 5/11/20), 304 So. 3d 448, 455 (citing State v. Batiste, 2005-
1571 (La. 10/17/06), 939 So.2d 1245, 1249). I write separately to clarify this
misunderstanding of applicable jurisprudence.
W hile this Court has recognized a prosecutor’s responsibility “ to avail himself
of all legitimate means to gain adequate time to marshal the proof needed to properly
present its case” and that a prosecutor’s decision to nolle prosse is “entitled to the
presumption that he exercised this power for a proper and lawful purpose in keeping

with his duty as a public official,” this right is not without limitation. State v. Alfred, 337 So. 2d 1049, 1057 (La. 1976) ; see also State v. Reimonenq, 2019 -0367 (La.
10/22/19), 286 So. 3d 412, 421 (Crichton, J., additionally concurring) (“[T] he
district attorney's authority [under La. C.Cr.P. art. 61 and La. Const. art. 5 sec.
26(B)] must coexist with other provisions of our Constitution and Code of Criminal
Procedure, which requires balancing the various broad grants of authority in our
state.”). It is true that this Court has repeatedly recognized that a district court should
grant a motion to quash where it is shown the prosecutor enters a nolle prosse and
reinstitutes charges in order to favor the State to the prejudice of the defendant, often
to circumvent an unfavorable ruling. See, e.g., Batiste, 939 So. 2d at 1249 (“In those
cases ‘where it is evident that the district attorney is flaunting his authority for
reasons that show that he wants to favor the State at the expense of the defen dant,
such as putting the defendant at risk of losing witnesses, the trial court should grant
a motion to quash and an appellate court can appropriately reverse a ruling denying
a motion to quash in such a situation.’”) (quoting Love, 847 So. 2d at 1209).
Contrary to the court of appeal’s assertion, however, this Court has never
limited a district court’s discretion to grant a motion to quash a reinstituted
indictment to instances where the State seeks to prejudice the defendant. In the
seminal case State v. Alfred, supra, the Court recognized various instances in which
quashing a reinstituted indictment would be warranted. Finding the defendant failed
to prove the prosecutor in that case exercised his authority for improper purposes,
the Court reasoned:
None of these delays were extraordinary or capricious; none were
deliberate on the part of the District Attorney, designed to hamper the
defense; none were due to negligence on the part of the court, the
prosecutor or others charged with the responsibility of providing a
speedy trial ; all were legitimate and recognized grounds for
continuances. In some cases delays are demanded by the nature of the
situations presented. No hard and fast time limit can be fixed for all
cases; each must be decided on its own facts and circumstances.

337 So. 2d at 1057 (La. 1976) (emphasis added) . Alfred thus implied that even
negligence of the prosecution may warrant quashing a reinstituted indictment. Such
is the case here, where t he facts illustrate that the State’s egregious neglect of the
prosecution not only violated defendant’s right to speedy trial, as recognized by the
per curiam, but also undermined the district court’s inherent control over its docket.
See La. C.Cr.P. art. 17.
“[T]he district attorney has an awesome amount of power in our justice
system, which encompasses the entire charge and control of every criminal
prosecution instituted or pending in his district” and includes the determination of
“whom, when, and how he shall prosecute.” See State ex rel. Morgan v. State, 15-
100 (La. 10/19/16), 217 So. 3d 266, 277-78 (Crichton, J., additionally concurring)
(citing La. C.Cr.P. art. 61). However, a prosecutor’s responsibility is as “a minister
of justice and not simply that of an advocate,” and the vast authority of the prosecutor
does not permit “the unfettered exercise of this authority to undermine trial court
proceedings and evade appellate review. ” Id. (internal quotations omitted);
Reimonenq, 286 So. 3d at 416. Instead of, in effect, granting themselves a
continuance by a defiant nolle prosse and reinstitution maneuver, followed by more
continuances, the prosecutors in this case should have contemporaneously objected
to the district court’s adverse ruling, requested a stay, and sought supervisory review
by the court of appeal.
The unlawful exercise of the nolle prosse power impinges on a defendant’s
constitutional rights, offends the dignity of the trial judge, and burdens the justice
system. The district court was well within its discretion in condemning such conduct
in this case.

SUPREME COURT OF LOUISIANA
No. 2020-K-00743
STATE OF LOUISIANA
VS.
WALTER JOHNSON
On Writ of Certiorari to the 1st Circuit Court of Appeal, Parish of Ascension
CRAIN, J., additionally concurs and assigns reasons.
I agree the trial court did not abuse its discretion in granting the motion to
quash under the facts of this case. A d istrict attorney is vested with extensive
authority over criminal prosecutions. See La. Const. art. V, § 26(B); La. C. Cr. P.
arts. 61 and 691. This authority, however, cannot be exercised in a manner that
infringes upon a defendant’s right to due process or undermines the trial court’s
jurisdiction and authority to conduct criminal proceedings in an orderly and
expeditious manner. For these purposes, the trial court’s jurisdiction starts when the
district attorney cho oses to file the charge. See La. Const. art. V, § 16 ; La. Code
Crim. Pro. art. 17; State v. Williams, 21-0205 (La. 6/8/21), 317 So. 3d 317, 318 (per
curiam); State v. Reimonenq, 19-0367 (La. 10/22/19), 286 So. 3d 412, 416; State v.
Papizan, 17-0028, (La. App. 1 Cir. 11/2/17), 256 So. 3d 1091, 1096, writ denied, 17-
2028 (La. 10/29/18), 255 So. 3d 572. A district attorney is also bound by hi s duty
of candor to the tribunal and must, without exception, refrain from knowingly
making a false statement of fact or law to the court. See La. R. Prof. Cond. 3.3(a).
These restraints on prosecutorial authority are an essential part of our criminal
justice system and demand respect. Abuses of the authority are intolerable and, as
demonstrated herein, carry significant consequences. Dismissal of a prosecution,
unlike the exclusionary rule or granting a new trial, means a defendant who may be
guilty of a serious crime is freed without being tried. See State v. Alfred, 337 So. 2d
09/30/21

2

1049, 1057 (La. 1976); Papizan, 256 So. 3d at 1096 . A potential victim is denied
justice. When deciding whether to test the boundaries of his prosecutorial authority,
a district attorney must be mindful of the heavy price of being wrong.

SUPREME COURT OF LOUISIANA
No. 2020-K-00743
STATE OF LOUISIANA
VS.
WALTER JOHNSON
On Writ of Certiorari to the Court of Appeal, First Circuit,
Parish of Ascension
McCallum, J., concurs and assigns reasons.
I concur in the result because of the particular facts of this case. However, I
recognize that La. Const. art. V, §26 and La. C.Cr.P. articles 61, 691, and 693 grant
broad authority to district attorneys over prosecutions and the dismissal and
reinstitution of cases. Cases that concern the possible abuse of the power to nolle
prosequi by a prosecutor are best addressed on a case -by-case basis, rather than
through the confection of a prospective, judicially-created rule.
09/30/21