State of Louisiana Versus Jerman Neveaux

STATE OF LOUISIANA NO. 23-K-466

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, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

November 08, 2023

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Stephen J. Windhorst

WRIT DENIED.
SMC
FHW
SJW

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand

COUNSEL FOR DEFENDANT/RELATOR,
JERMAN NEVEAUX
Richard J. Bourke
Elliott T. Brown

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Grant L. Willis

CHEHARDY, C.J.

Defendant, Jerman Neveaux, seeks supervisory review of the trial court’s

ruling that denied his Motion to Declare La. C.C.P. art. 798(2)(A) & (B)

Unconstitutional or to Bar the State from Challenging Jurors with Conscientious

Scruples Against the Death Penalty Arising from Religious Beliefs. For the

reasons that follow, the writ is denied.

PROCEDURAL HISTORY

On October 13, 2016, defendant, Jerman Neveaux, was indicted for the first

degree murder of Jefferson Parish Sheriff’s Office (JPSO) Detective David Michel

in violation of La. R.S. 14:30. The State is seeking the death penalty.

On or about July 10, 2023, defendant filed a Motion to Declare La. C.C.P.

art. 798(2)(A) & (B) Unconstitutional or to Bar the State from Challenging Jurors

with Conscientious Scruples Against the Death Penalty Arising from Religious

Beliefs. On July 24, 2023, the State filed State’s Omnibus Response to

Defendant’s Motions Relative to Death Penalty Procedures and Substance, to

which defendant filed a reply. Following a hearing, the trial court denied

defendant’s motion on August 23, 2013. Defendant timely filed the instant writ

application on September 22, 2023.

DISCUSSION

Defendant’s Argument in Support of His Motion

In his motion, defendant requested that the trial court declare La. C.Cr.P. art.

798(2)(a) and (b) unconstitutional on the basis that it substantially burdens the free

exercise of religion. He argued that the Article grants the district attorney’s office

the discretion to challenge a juror for cause because of his or her conscientious

scruples against the death penalty, even where those scruples derive from the

exercise of sincerely held religious beliefs. Further, defendant argued that

exclusion from public service as a juror on the most important criminal cases, and

the cases in which citizens are asked to express the moral conscience of the

community, burdens free exercise for those whose religious beliefs would require

them to forego voting for the death penalty. Additionally, defendant alleged that

because La. C.Cr.P. art. 798(2)(a) and (b) is a discretionary clause, it is not a law

of general application, and, therefore, the burden falls on the State under the strict

scrutiny test to demonstrate a compelling State interest in refusing to exempt jurors

from cause challenges where their conscientious scruples against the death penalty

arise from their religious beliefs.

In addition, defendant argued the State cannot show a compelling State

interest in failing to exempt from removal for cause those jurors, whose exercise of

religious beliefs would substantially impair their ability to vote for death, where

death is never a required outcome and where those jurors play a legitimate role in

expressing the moral conscience of the community. He further argued that even if

the State has an interest in ensuring the possibility of a death verdict in a particular

case, the exclusion of religious jurors from capital trials is not narrowly tailored to

satisfy that interest. Defendant requested that the trial court hold an evidentiary

hearing in order to present evidence showing that being required to set aside

religious beliefs opposed to the death penalty burdens religion. He asserted that in

its recent decision in Fulton v. City of Philadelphia, Pennsylvania, 593 U.S. ---,

141 S.Ct. 1868, 210 L.Ed.2d 137 (2021), the United States Supreme Court

explained the operation of the Free Exercise Clause. Lastly, in his writ application,

defendant avers that the claim he presents is res nova and must be considered

under the guidance of Fulton.

The State’s Response

In response, the State urged that defendant’s argument essentially suggests

that La. C.Cr.P. art. 798(2)(a) and (b) unconstitutionally results in a more death-

prone jury, an argument which the State contends the Louisiana Supreme Court

rejected in State v. Odenbaugh, 10-268 (La. 12/6/11), 82 So.3d 215, cert. denied,

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568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012). Further, the State argued

defendant failed to show any constitutional defect in La. C.Cr.P. art. 798(2)(a) and

(b), or that he is entitled to bar it from striking jurors with conscientious scruples

against the death penalty. Moreover, the State argued that if defendant feels during

voir dire that a challenge by the State is unfounded in law, he may make

appropriate good faith and non-frivolous objections at that time, upon which the

trial court will thereafter rule. Consequently, the State contended that, at this

juncture, there is nothing to litigate on this point.

The State further argued that, by couching his claim in terms of religious

freedom, defendant seeks to evade the fact that the constitutionality of La. C.Cr.P.

art. 798(2)(a) and (b) has already been upheld. Specifically, the State noted that in

State v. Spell, 21-876 (La. 5/13/22), 339 So.3d 1125, our Supreme Court held that

regardless of its burden on religious exercise, a law that is neutral and generally

applicable does not violate the Free Exercise Clause and is not subject to strict

scrutiny. The State argued that, despite defendant’s contention to the contrary, La.

C.Cr.P. art. 798(2)(a) and (b) is neutral and generally applicable given that it does

not target any particular religion and applies to anyone who falls under its ambit,

regardless from where that person’s beliefs stem. Further, the State asserted the

analysis does not change simply because a prosecutor must raise a challenge to that

particular individual, since the State does not have in place a system of individual

exemptions from the law nor does the statute grant exemptions. Moreover, the

State argued that La. C.Cr.P. art. 798(2)(a) and (b) does not treat any comparable

secular activity more favorably than religious exercise, given that an atheistic

individual who is morally opposed to the death penalty is subject to the same

challenge as a religious individual who is morally opposed to the death penalty.

The State asserted that in State v. Tucker, 13-1631 (La. 9/1/15), 181 So.3d

590, cert. denied, 578 U.S. 1018, 136 S.Ct. 1801, 195 L.Ed.2d 774 (2016), the

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Louisiana Supreme Court rejected a challenge to La. C.Cr.P. art. 798(2)(a) and (b)

based on a free exercise argument. According to the State, since Tucker, there has

been no further jurisprudence that would justify a changed result, and that La.

C.Cr.P. art. 798(2)(a) and (b) would survive any level of scrutiny. For these

reasons, and because defendant’s free exercise challenge to La. C.Cr.P. art.

798(2)(a) and (b) has previously been rejected by controlling jurisprudence, the

State argued that an evidentiary hearing on this issue would be an exercise in

futility and a waste of the court’s time and resources.

The August 23, 2023 Hearing on Defendant’s Motion

At the hearing on defendant’s motion, defense counsel argued that, under

Fulton, La. C.Cr.P. art. 798(2)(a) and (b) is not a law of general applicability. In

response, the State argued that Fulton is a case involving foster care and, thus, is

not applicable to a criminal case. Further, the State argued that La. C.Cr.P. art.

798(2)(a) and (b) is a law of general applicability, because someone may be unable

to impose the death penalty, not only on the basis of religion, but for some other

reason, and that Fulton did not change anything. Moreover, the State averred that

it is a strained fit to call it an exemption when a prosecutor fails to make an

appropriate cause challenge, because if a prosecutor allows someone to sit on a

capital jury who does not believe in the death penalty, this is actually a windfall to

the defense, not an exemption.

At the close of the hearing, the trial court denied defendant’s motion to bar

the State from challenging jurors with conscientious scruples against the death

penalty arising from religious beliefs. The trial court ruled that La. C.Cr.P. art. 798

is a law of general applicability and not unconstitutional. Defendant filed the

instant writ application seeking this Court’s supervisory review of the trial court’s

ruling.

Defendant’s Writ Application

4

In his application, defendant argues the trial court erred in its determination

that La. C.Cr.P. art. 798(2)(a) and (b) is a law of general applicability, and erred in

denying his motion to declare the Article unconstitutional as burdening the free

exercise of religion. The determination of the constitutionality of a statute presents

a question of law subject to de novo review. State v. Webb, 13-1681 (La. 5/7/14),

144 So.3d 971, 975.

Louisiana Code of Criminal Procedure article 798, entitled “Causes for

challenge by the state,” provides, in pertinent part:

It is good cause for challenge on the part of the state, but
not on the part of the defendant, that:

****

(2) The juror tendered in a capital case who has
conscientious scruples against the infliction of capital
punishment and makes it known:

(a) That he would automatically vote against the
imposition of capital punishment without regard to
any evidence that might be developed at the trial of
the case before him;

(b) That his attitude toward the death penalty would
prevent or substantially impair him from making
an impartial decision as a juror in accordance with
his instructions and his oath[.]

[Internal footnote added.]

In State v. Brown, 16-998 (La. 1/28/22), 347 So.3d 745, 804-04, cert.

denied, ---U.S.---, 143 S.Ct. 886, 215 L.Ed.2d 404 (2023), the Supreme Court

discussed La. C.Cr.P. art. 798(2) as follows:

The basis of the exclusion under La. C.Cr.P. art. 798(2),
which incorporates the standard of Witherspoon [v. State
of Ill., 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776], as
clarified by Wainwright v. Witt, 469 U.S. 412, 105 S.Ct.
844, 83 L.Ed.2d 841 (1985), is that the juror’s views
“would prevent or substantially impair him from making
an impartial decision as a juror in accordance with his
instructions and his oath.” Witt, 469 U.S. at 424, 105
S.Ct. 844. Witherspoon further dictates that a capital
defendant’s rights under the Sixth and Fourteenth
Amendments to an impartial jury prohibits the exclusion
5

of prospective jurors “simply because they voiced
general objections to the death penalty or expressed
conscientious or religious scruples against its infliction.”
Witherspoon, 391 U.S. at 522, 88 S.Ct. 1770.

A prospective juror whose views would either lead him
to vote automatically against the death penalty or would
substantially impair his or her ability to follow the
instructions of the trial court and consider a sentence of
death is not qualified to sit on the jury panel in a capital
case. Witt, 469 U.S. at 424, 105 S.Ct. 844; La. C.Cr.P.
art. 798(2).

In Fulton, supra, upon which defendant’s argument is based, a state-licensed

foster care agency affiliated with the Roman Catholic Diocese, together with three

foster parents affiliated with the agency, brought a § 1983 action against the city

alleging that the city’s refusal to contract with the agency unless it agreed to certify

same-sex couples as foster parents violated the Free Exercise and Free Speech

Clauses of the First Amendment. The U.S. District Court denied the motions for a

temporary restraining order and a preliminary injunction filed by the agency and

foster parents, and they appealed. The U.S. Third Circuit Court of Appeal

affirmed, and certiorari was granted. The U.S. Supreme Court held, among other

things, that the city burdened the agency’s religious exercise by requiring the

agency to choose between curtailing its mission or approving relationships

inconsistent with its beliefs, and that the non-discrimination requirement in the

city’s standard foster care contract was not generally applicable, and thus, was

subject to strict scrutiny.

The Louisiana Supreme Court discussed Fulton, the Free Exercise Clause,

and laws of general applicability, in State v. Spell, supra:

The First Amendment, applicable to the states through
the Fourteenth Amendment, provides that “Congress
shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof …” U.S.
Const., Amdt 1 (emphasis added); Fulton v. City of
Philadelphia, Pennsylvania, ---U.S.---, 141 S.Ct. 1868,
1876, 210 L.Ed.2d 137 (2021). Article I, Section 8 of the
Louisiana Constitution similarly provides, “No law shall
be enacted respecting an establishment of religion or
6

prohibiting the free exercise thereof.” The free exercise
of religion means the right to believe and profess
whatever religious doctrine one desires.

****
A law that substantially burdens the free exercise of
religion violates the First Amendment. See Hernandez v.
Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148,
104 L.Ed.2d 766 (1989)); Thomas v. Review Bd. of
Indiana Employment Security Div., 450 U.S. 707, 718,
101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981); Wisconsin
v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1536, 32
L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398,
403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1063). This
standard, sometimes called the “Sherbert test,” was
applied by the Supreme Court for almost 30 years to
determine whether government action was subject to
strict scrutiny under the Free Exercise Clause. In Smith,1
however, the Supreme Court held that, regardless of its
burden on religious exercise, a law that is “neutral” and
“generally applicable” does not violate the Free Exercise
Clause and is not subject to strict scrutiny. See Smith,
494 U.S. at 878-80, 110 S.Ct. at 1600. If prohibiting the
exercise of religion is “merely the incidental effect of a
generally applicable and otherwise valid provision, the
First Amendment has not been offended.” Smith, 494
U.S. at 878, 110 S.Ct. at 1600. Smith effectively carved
out an exception to the Sherbert test that allows
restrictions on religious liberty that previously may not
have survived strict scrutiny. After Smith, under the
federal jurisprudence, a law burdening religious exercise
is subject to strict scrutiny only if it is not neutral and
generally applicable. See Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct.
2217, 2233, 124 L.Ed.2d 472 (1993).

A governmental regulation burdening religious exercise
is not neutral and generally applicable if, by granting
exemptions, it treats any comparable secular activity
more favorably than religious exercise. See Fulton, 141
S.Ct. at 1877; Tandon v. Newsom, ---U.S.---, 141 S.Ct.
1294, 1296, 209 L.Ed.2d 355 (2021) (per curiam);
Roman Catholic Diocese of Brooklyn v. Cuomo, ---U.S.--
-, 141 S.Ct. 63, 66-67, 208 L.Ed.2d 206 (2020) (per
curiam). As Smith recognized, a law may violate the
Free Exercise Clause and trigger strict scrutiny if “the
State has in place a system of individual exemptions”
from the law. Smith, 494 U.S. at 884, 110 S.Ct. at 1603.
If the statute grants exemptions, the government “may
not refuse to extend that system to cases of religious
hardship without compelling reason.” Smith, 494 U.S. at

1
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110
S.Ct. 1595, 1599, 108 L.Ed.2d 876 (1990).
7

884, 110 S.Ct. at 1603 (internal quotation marks
omitted). It is not sufficient for the state to point out that
it treats some comparable secular businesses or other
activities as poorly as or even less favorably than the
religious exercise at issue. Tandon, 141 S.Ct. at 1296.
Rather, once a state creates any favored class of business,
the state must justify why houses of worship are excluded
from that favored class. Roman Catholic Diocese, 141
S.Ct. at 73 (Kavanaugh, J., concurring); see also Church
of Lukumi, 508 U.S. at 537, 113 S.Ct. at 2229.

Spell, 339 So.3d at 1131-33. [Internal footnote added.]

While our research did not produce a case wherein a Louisiana court

specifically addressed whether La. C.Cr.P. art. 798 is a law of general

applicability, numerous Louisiana cases have upheld the constitutionality of La.

C.Cr.P. art. 798. In Odenbaugh, supra, the Louisiana Supreme Court addressed

whether Louisiana’s death qualification process is unconstitutional on the basis

that it violates the right to an impartial jury, unfairly leads to a death-prone jury,

and denies a fair cross-section of the venire available to non-capital defendants. In

upholding the constitutionality of La. C.Cr.P art. 798, the Supreme Court stated:

[T]here should be no question of the constitutional
validity of LSA-C.Cr.P. art. 798 since it was drafted to
conform to the constitutional requirements set forth in
[Witherspoon]; see also, [Witt]. In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the
Supreme Court held that the Constitution does not
prohibit excluding potential jurors under Witherspoon or
that “death qualification” resulted in a more conviction-
prone jury. Likewise, this Court has repeatedly rejected
the claim that the Witherspoon qualification process
results in a death-prone jury … This Court finds no need
to revisit this longstanding principle of law.

Odenbaugh, 82 So.3d at 248-49. [Internal citations omitted].

In State v. Brown, supra, the defendant raised the constitutionality of the

death qualification procedure. During voir dire, but after the trial court granted

cause challenges of several jurors who expressed religious and moral scruples

against the death penalty, the defendant raised objections to La. C.Cr.P. art. 798

and Witherspoon. Specifically, defense counsel argued that the defendant was

8

subject to a more onerous standard than was required of the State when it came to

challenges under La. C.Cr.P. arts. 797 and 798. In rejecting the defendant’s

argument, the Supreme Court stated, “Before this court defendant presents no valid

argument as to why the reasoning in Odenbaugh does not apply to his case, or why

this court’s longstanding jurisprudence should be disturbed.” Id., 347 So.3d at

804.

In State v. Turner, 16-1841 (La. 12/5/18), 263 So.3d 337, cert. denied, ---

U.S.---, 140 S.Ct. 555, 205 L.Ed.2d 355 (2019), the defendant argued the trial

court erred in granting the State’s challenge for cause of twenty-three jurors based

on La. C.Cr.P. art. 798(2) after they expressed opposition to capital punishment

based on religious beliefs. He argued the State’s challenges violated the First

Amendment and the Louisiana Religious Freedom Act. He further claimed that the

exclusion of citizens from jury service under La. C.Cr.P. art. 798 due to their

religious beliefs improperly burdens the free exercise of religion and that death

qualification is unconstitutional because it does not serve any compelling

governmental interest that cannot be served by means less burdensome on citizens’

free exercise of religion. As such, the defendant argued that his convictions and

death sentence should be reversed to vindicate the rights of these individuals, and

because no confidence can be had in a verdict imposed by a jury from which

numerous citizens were unlawfully excluded. The trial court denied the

defendant’s pre-trial motion, and motion for new trial, based on this issue. In

rejecting the defendant’s argument as meritless, the Supreme Court, citing

Odenbaugh, stated that La. C.Cr.P. art. 798 was drafted to conform to

Witherspoon. Additionally, the Supreme Court noted that it had previously

rejected challenges to the statute’s constitutionality with regard to excluding jurors

during death qualification voir dire, and determined that La. C.Cr.P. art. 798 did

not run afoul of prohibitions against religious discrimination. Id at 395-96

9

(quoting State v. Sanders, 93-1 (La. 11/30/94), 648 So.2d 1272, cert. denied, 517

U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996), and State v. Robertson, 97-

177 (La. 3/4/98), 712 So.2d 8, 25-26, cert. denied, 525 U.S. 882, 119 S.Ct. 190,

142 L.Ed.2d 155 (1998) (“It is not the prospective juror’s religion per se which

justifies the challenge for cause but his views on the death penalty, regardless of

their source or impetus.”).

In Sanders, supra, the defendant claimed that La. C.Cr.P. art. 798 was

unconstitutional on its face. In this case, two veniremen stated that because of

their religious beliefs, they could not under any circumstances vote for the death

penalty. The trial court thereafter disqualified them. The defendant argued the

exclusion of jurors on such grounds violated La. Const. art. I, § 3, which prohibits

all discrimination based on religious beliefs. In rejecting the defendant’s

argument, the Supreme Court found that the defendant had neither argued nor

shown that the alleged discrimination the two jurors allegedly suffered actually

constituted religious discrimination. Instead, the defendant’s inquiry was restricted

to the question of whether the veniremen could vote for the death penalty. The

Court noted that it had previously held that “the ‘single attitude’ of opposition to

the death penalty ‘does not represent the kind of … religious … characteristic that

underlies those groups that have been recognized as being distinctive.’” Id. at

1287-88 (quoting State v Lowenfield, 495 So.2d 1245, 1254 (La. 1985), cert.

denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986)). Further, the

Sanders Court found that if the reluctance to impose the death penalty was

religious in nature, it had adopted the Witherspoon and Witt standards. The Court

asserted that on numerous prior occasions, it had reviewed the disqualification of

jurors who stated a religious basis for their inability to impose the death penalty

and had never found a constitutional violation, and that considering the substantial

jurisprudence addressing the issue, the defendant’s assignment of error lacked

10

merit. Id. at 1288 (citing State v. Copeland, 530 So.2d 526 (La. 1988), cert.

denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989); State v. Ward,

483 So.2d 578 (La. 1986), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d

168 (1986); and Lowenfield, supra, 495 So.2d at 1254-55).

After de novo consideration of defendant’s writ application herein, we find

the trial court did not err by denying his motion to declare La. C.Cr.P. art.

798(2)(a) and (b) unconstitutional or to bar the State from challenging jurors with

conscientious scruples against the death penalty arising from religious beliefs.

Based on the existing jurisprudence upholding the constitutionality of La. C.Cr.P.

art. 798, we find that La. C.Cr.P. art. 798(2)(a) and (b) is neutral and generally

applicable because (1) it does not focus on a particular religion or religion at all,

and (2) it applies to anyone regardless of the source of his or her views on the

death penalty. See Odenbraugh, supra; Brown, supra; Turner, supra; Sanders,

supra. For these reasons, the writ is denied.

WRIT DENIED

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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
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JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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NOVEMBER 8, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-K-466
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
DARREN A. ALLEMAND (RESPONDENT) THOMAS J. BUTLER (RESPONDENT) ELLIOTT T. BROWN (RELATOR)
RICHARD J. BOURKE (RELATOR) GRANT L. WILLIS (RESPONDENT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(RESPONDENT)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053