State of Louisiana Versus Jerman Neveaux

STATE OF LOUISIANA NO. 22-K-426

VERSUS FIFTH CIRCUIT

JERMAN NEVEAUX COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-4029 & 16-6301, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

September 28, 2022

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson

WRIT GRANTED; JUDGMENT VACATED; REMANDED WITH
INSTRUCTIONS
JGG
FHW
RAC

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Thomas J. Butler

COUNSEL FOR DEFENDANT/RELATOR,
JERMAN NEVEAUX
Christine M. Lehmann
Elliott T. Brown

GRAVOIS, J.

Relator/defendant, Jerman Neveaux, seeks this Court’s supervisory review

of the trial court’s September 1, 2022 judgment which denied his “Motion to

Recuse Judge Miller Under the Amended La. C.Cr.P. [art.] 671(B).” For the

reasons that follow, we grant this writ application, vacate the trial court’s

judgment, and remand the matter with instructions.

On October 13, 2016, defendant was indicted for the first degree murder of

Jefferson Parish Sheriff’s Office (“JPSO”) Detective David Michel. In January

2022, defendant filed a “Motion to Recuse” Judge Nancy Miller based on La.

C.Cr.P. art. 671(A)(1) and (6).1 Therein, he argued that Judge Miller must be

recused due to the appearance and risk of partiality because her husband is a JPSO

sergeant who was involved in the instant case in his law enforcement capacity.

Judge Miller referred the matter for appointment of another judge to hear the

motion, and in due course, a hearing was conducted before a randomly appointed

judge (Judge Stephen Grefer), who denied the “Motion to Recuse.” Defendant

filed a writ application with this Court challenging the trial court’s ruling, which

this Court denied. See State v. Neveaux, 22-K-119 (La. App. 5 Cir. 3/24/22)

(unpublished writ disposition), writ denied, 22-676 (La. 6/1/22), 338 So.3d 490.

On August 30, 2022, defendant filed a second motion to recuse that was

entitled, “Motion to Recuse Judge Miller Under the Amended La. C.Cr.P. [art.]

671(B).” In his motion, defendant argued that La. C.Cr.P. art. 671 was amended,

1
Louisiana Code of Criminal Procedure article 671(A)(1) and (6) stated at the time the
“Motion to Recuse” was filed:
A. In a 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;
***
(6) Would be unable, for any other reason, to conduct a fair and impartial
trial.

22-K-426 1

effective August 1, 2022, and that under this new mandatory ground for recusal, a

judge shall be recused when there exists a substantial and objective basis that

would reasonably be expected to prevent the judge from conducting any aspect of

the cause in a fair and impartial manner. Defendant argued that the new mandatory

standard for recusal in criminal cases is broader than what was allowed under the

law when he filed his first motion to recuse. Defendant asserted that although

there was no jurisprudence interpreting this additional ground for recusal in

criminal law, this Court had recently examined and applied the identical recusal

standard in a civil case, Anderson v. Dean, 22-C-233 (La. App. 5 Cir. 7/25/22)

(unpublished writ disposition). He contended that Judge Miller’s husband’s

involvement in the instant case created a substantial and objective basis that would

reasonably be expected to prevent Judge Miller from conducting any aspect of this

case in a fair and impartial manner. As such, defendant argued that recusal is

mandatory.

On September 1, 2022, the trial court denied the motion to recuse, stating in

pertinent part:

The instant motion to recuse raises no new factual basis for
recusal. The recusal was fully litigated and writs [were] denied by the
court of appeal and the state supreme court. The instant motion is
based solely on the recent amendment to La. C.Cr.P. [a]rt. 674. The
defendant provides no legal support for retroactive application of the
amendment [to] La. C.Cr.P. art. 674, and there is no indication in the
legislative history that this was the intent of [the] legislature. The
Court therefore finds that the instant motion to recuse is repetitive and
untimely.
Louisiana Code of Criminal Procedure article 671, which provides the

grounds for recusal of a judge in criminal cases, was amended by Acts 2022, No.

42, § 1, with an effective date of August 1, 2022, and provides in pertinent part:

B. In a criminal cause, a judge of any trial or appellate court shall also
be recused when there exists a substantial and objective basis that
would reasonably be expected to prevent the judge from
conducting any aspect of the cause in a fair and impartial manner.

22-K-426 2

The comments to Article 671 provide in pertinent part:

a) This Article generally follows Code of Civil Procedure Article
151, with such adaptations as are necessary to adjust the grounds
for recusal to the special differences in criminal proceedings.
***

(i) A new Paragraph B has been added to provide an additional
mandatory ground for recusal when a substantial and objective
basis exists that would reasonably be expected to prevent the judge
from conducting any aspect of the case in a fair and impartial
manner. This provision is intended to serve as a catch-all
supplementing the mandatory grounds for recusal set forth in
Paragraph A and to incorporate a clearer, more objective standard
than the language of Canon 3C of the Code of Judicial Conduct,
which provides that a judge should recuse himself when “the
judge’s impartiality might reasonably be questioned.”

Louisiana Code of Criminal Procedure article 674, which sets forth the

procedure for recusal of a trial judge in criminal cases, was also amended at the

same time as Article 671 with the same effective date, and provides:

A. A party desiring to recuse a trial judge shall file a written motion
therefor assigning the ground for recusal under Article 671. The
motion shall be filed not later than thirty days after discovery of
the facts constituting the ground upon which the motion is based,
but in all cases at least thirty days prior to commencement of the
trial. In the event that the facts constituting the ground for recusal
occur thereafter or the party moving for recusal could not, in the
exercise of due diligence, have discovered such facts, the motion to
recuse shall be filed immediately after the facts occur or are
discovered, but prior to verdict or judgment.

B. If the motion to recuse sets forth facts constituting a ground for
recusal under Article 671, not later than seven days after the
judge’s receipt of the motion from the clerk of court, the judge
shall either recuse himself or refer the motion for hearing to
another judge or to an ad hoc judge as provided in Article 675.
C. If the motion to recuse is not timely filed in accordance with
Paragraph A of this Article or fails to set forth facts constituting a
ground for recusal under Article 671, the judge may deny the
motion without referring the motion to another judge or to an ad
hoc judge for hearing but shall provide written reasons for the
denial.

Upon review of this writ application, for the following reasons, we find that

the trial court erred in denying the motion to recuse as untimely and repetitive.

First, the trial court mistakenly states that the instant motion is based solely on the

22-K-426 3

recent amendment to La. C.Cr.P. art. 674. Rather, we find that defendant’s current

motion to recuse is based on the recent amendment to La. C.Cr.P. art. 671, which

added a new ground for recusal of a trial judge in criminal cases. Since La. C.Cr.P.

art. 671 provides a new ground for recusal, we find that the trial judge should have

applied the new standard set forth in La. C.Cr.P. art. 671(B) to the facts in the

instant case to determine if she should recuse herself or refer the motion to another

judge. Additionally, the amendments to the recusal articles in criminal cases

became effective on August 1, 2022, and defendant filed his new motion to recuse

on August 30, 2022. Therefore, the motion is timely as it was filed within thirty

days after discovery of the facts constituting the ground upon which the motion is

based and it does not appear that a trial date has been set. See La. C.Cr.P. 674.

Accordingly, we grant defendant’s writ application, vacate the trial court’s

September 1, 2022 judgment on defendant’s second motion to recuse, and remand

the matter with instructions to the trial court to consider the merits of defendant’s

second motion to recuse under La. C.Cr.P. art. 671(B), and to either recuse herself

in accordance with La. C.Cr.P. art. 674 or to refer the motion to another judge for

hearing as provided in La. C.Cr.P. arts. 674 and 675.2

WRIT GRANTED; JUDGMENT VACATED;
REMANDED WITH INSTRUCTIONS

2
Louisiana Code of Criminal Procedure article 675 provides the law regarding the
selection of a judge ad hoc to try a motion to recuse and provides in pertinent part:
B. In a court having more than two judges, the motion to recuse shall be referred
to another judge of the court through a random process as provided by the
rules of court.

22-K-426 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. 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 JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 28, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-K-426
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
THOMAS J. BUTLER (RESPONDENT) ELLIOTT T. BROWN (RELATOR)

MAILED
CHRISTINE M. LEHMANN (RELATOR)
ATTORNEY AT LAW
636 BARONNE STREET
NEW ORLEANS, LA 70113