STATE OF LOUISIANA. : 4TH JUDICIAL DISTRICT COURT VS. NO. 12615-16 : PARISH OF CALCASIEU DENNIS JEROME BARTIE 7 STATE OF LOUISIANA FILED: DEPUTY CLERK OF COURT MOTION TO QUASH NOW INTO COURT, comes the defendant, DENNIS JEROME BARTIE, through undersigned counsel, who, pursuant to Fifth, Sixth and Fourteenth Amendments to the United States Constitution, La. Const. Art. 1, §2and La. C.Cx-P. Art. 532etseq,, moves fora dismissal of the prosecution against him by this Court for the following reasons to wit: INTRODUCTION Even prior to the State's initial interview with the defendant on May 31, 2016, the Government (the State and law enforcement) conspired to violate the defendant's rights —a pattern of government misconduct that continued, worsened, and came to involve evena member of the trial court itself, Indeed, from the very start and throughout this case, the Government flagrantly attacked and flouted this defendant's rights —his right to counsel, his right to remain silent, his right to due process, his right to fundamental fairness—each time without the slightest hesitation or check. Indeed, in the time it takes to familiarize oneself with all of the misconduct and rights violations present in this case, one might completely forget the fact that the same State guilty of violating all of these rights, is the same State constitutionally obligated to protect them. ‘The law for sucha situation is clear—if egregious enough, a trial court by way of its supervisory jurisdiction can dismiss a case based on any of the following grounds: 1) Government misconduct; 2) Violation of defendant's right to due process; 3) Violation of defendant's right to fundamental fairness, which itself is a form of due process violation but has various additional forms; 4) Outrageous law enforcement action; and 5) Prosecutorial misconduct. As this Court will see below, associated with each of these specific grounds areinstructive bodies of case law, with prosecutorial misconduct (when raised as the only ground) being the most challenging to prove and, in turn, most sparingly applied. Regardless, in the case at bar, every one of the previously enumerated grounds is present and overtly exhibited by the record. Indeed, the law would allow dismissal for several of the State's actions if considered in isolation. For the same reasons, the totality of circumstances places this Court ina situation very similar to that described by Mr. Clemons at the close of the Motion to Suppress hearing in September of 2017: “You have tomake a very tough decision. I think based on the facts and the law it’s an easy decision, butit’s a tough call.” (Exhibit A, September 19,2017 Transcript, pg. 35). Whatever the difficulty, the actions by the Government in this case cannot be tolerated, considered harmless or rendered anything less than fatal to this case. On the contrary, our system of justice, to be considered a justice system at all, when faced with such misconduct, must be willing to boldly identify same as illegal, illegitimate, and the antithesis of justice. For the same reasons, this Court is called on to take the only action in this case that will preserve society's sense of justice — dismissal. Doing so will remedy the violations in the only way possible, preserve judicial integrity, and deter future illegal conduct by these same and other similarly situated Government actors. GOVERNMENT MISCONDUCT IN THIS CASE The so-called “confession” Prior to interviewing the defendant on May 31, 2016, experienced, knowledgeable, high ranking law enforcement officers met with a high ranking, experienced, knowledgeable prosecutor with the District Attorney’s Office. Together, they drafted a letter designed to induce, threaten, and coerce the defendant into incriminating himself. (Exhibit B, Former Dep. Chief Kraus's testimony from the September 5, 2017 Motion to Suppress Transcript, pgs. 17-18). ‘As the court may recall, 48 minutes into the interview on May 31, 2016, when the defendant sought to exercise his right to remain silent, his right to counsel, and requested numerous times to leave the interview, law enforcement brazenly ignored such and went so far as to escalate their methods with repeated death threats. They then held thedefendant hostage for seven (7) hours. During the ensuing seven hours of coercion, the officers incrementally fed the defendant detailed facets of a story, they, themselves, concocted. Once they broke the defendant's will, they made him regurgitate the story back to them and called it a confession. As if this wasn’t enough, in a grotesque lack of restraint, the officers then immediately held a press conference and celebrated this atrocity to the public— proudly proclaiming that the defendant had confessed (to their story). (Exhibit C). They failed to mention that the “confession” had been obtained through violating the defendant's constitutional rights and through coercion. Win at all costs When faced with a Motion to Suppress the confession, the State’s prosecutor(s), chose to ignore the law, defend the officer's actions and claim in court that the officers’ actions were wholly appropriate and in compliance with every applicable law and standard. Consider some of the State’s quotes from the Motion to Suppress hearing and from briefs submitted to the trial court prior to the hearing: “The defendant's statements to law enforcement officers were given freely, voluntarily, knowingly, and willingly in compliance with every applicable law and standard for their admission.” (Exhibit D, pg. 14) “Suppression under Article 703 of the Code of Criminal Procedure requires a constitutional violation. There has to have been a fundamental constitutional right that the defendant was somehow deprived of, that it was violated, and that resulted in this statement. That's not what happened here.” (Exhibit A, September 19, 2017 Transcript, pg. 9). “What is important to note is thataall the revelation that was done in this case by the defendant, all the discussion that was done in this case by the defendant was voluntary. Itwas free and voluntary.” (Exhibit A, September 19, 2017 Transcript, pg. 10). “"Ié somebody invokes right to counsel, we know what the rules are. Those are much clearer for law enforcement to follow. You stop. If they invoke the right to counsel, and they do so clearly, you stop the interrogation and you get them a lawyer. We didn’t have any sign of that here. Law enforcement has to be able to ascertain that the defendant truly wants toremain silent, and we didn’t have that in this case.” (Exhibit A, September 19, 2017 Transcript, pg. 17). “With regard to these claims about them browbeating him and then coercing him, and him feeling threatened, that’s not what the tape shows.” (Exhibit A, September 19, 2017 Transcript, pg; 21) “At no point in time did the defendant actually invoke the right to remain silent.” (Exhibit A, September 19, 2017 Transcript, pg. 54) 3‘These statements by the State were blatantly false. It’s not as if the State wasn’t privy tothe misconduct, The State directly participated in the misconduct before, during, and after the misconduct. Still, the State chose to defend these actions with lies and attempts to distort the record. The trial court then joined in on the action when, at the conclusion of the Motion to Suppress hearing, it too made a blatantly false statement—"the defendant was never intimated or indicated in any way he would say whatever it would take to end the interview.” (Exhibit A, September 19, 2017 Transcript, pgs. 60-61). This “finding” coming after the trial court claimed to have watched the interrogation video twice wherein the defendant actually said numerous times that he would say whatever it would take to end the interview. (Exhibit A, September 19, 2017 Transcript, pg. 59). Continuing to fight for Injustice After defense counsel filed its Writ of Review to the Third Circuit asking it to overturn the trial courts obviously wrong decision, the State continued its presentation of falsehoods. Consider a small sampling of the State’s quotes in brief to the Third Circuit: “The defendant asserts that he was threatened with death if he did not cooperate he Jaw enforcement officers, but that is not what occurred here,” (Exhibit E, pg. “The defendant was also treated with great courtesy and respect by the interrogating officers, and he was given food, water, and bathroom breaks. Every applicable law has been adhered to in this case, and every requirement for the admissibility of the defendant's inculpatory statements has been met, as the trial court ruled.” (Exhibit E, pg. 18). These statements are false—not argument —false. In truth, rights were violated and laws broken—the same laws and rights the State was dutybound to defend. Rather, in direct opposition to this privilege entrusted to them, the Government concealed the truth and misrepresented evidence in complete disregard for the law. ‘The Third Circuit quickly ruled to correct same, determining the officer's misconduct was “the very type of police misconduct the Supreme Court prohibited in Miranda v. Arizona, 384 U.S. 436, 86S.Ct. 1602 (1966) and Michigan. Mosley, 423 US. 96, 96 S.Ct. 321 (1975)." (Emphasis added) (Exhibit F). Undeterred, the State asked the Supreme Court to overturn the appellate court. The Supreme Court denied writs. 4We just can’t help (or police) ourselves. Injustice be damned, we really oant that statement Next, the State came back to the trial court and argued the confession was still admissible because such was only a technical Miranda violation and was otherwise free and voluntary. Once again—false. No reasonable human being, let alone a trained, experienced prosecutor, oran experienced judge, could think that the nearly eight-hour video showed a free and voluntary statement beyond a reasonable doubt. Some things in our line of work are strikingly clear— this is one of those things. Still, the trial court once again ruled in the State's favor with respect to the confession. Again, the defendant was forced to take decision up on review and the State once again tried to distort the record. Consider the following from the State's writ opposition: “"In this case, the defendant asserts that he was threatened with death if he did not cooperate with law enforcement officers, but that is not what occurred here. (Defendant's brief, pages 12-19). Instead, officers used strategic deception as an interrogation tactic. While the defendant contends that there were improper promises or inducements in this case, the record establishes otherwise.” (Exhibit, PS: 9) "The defendant does get upset at some point during this exchange due to the realization of evidence against him. It appears to have no relation to the information about the mythical death penalty he faced.” (Exhibit G, pg, 12). The Third Circuit would eventually overturn the trial court in a stunning rebuke, finding the statement not free and voluntarily “for a variety of reasons.” Consider the following excerpts from the Third Circuit's ruling: “The record clearly fails to support the trial court's ruling that Defendant's confession was freely and voluntarily given. This court previously ruled the confession inadmissible because police behavior ran afoul of Miranda and ‘Mosely. The basis of that finding established that the confession was not free and voluntary although, as we have said, those express terms were not used in the court's disposition of the writ. Additionally, when a confession is obtained through promises or inducements, itis not given freely and voluntarily, and the State must specifically rebut the defendant's claims before such a confession may be admitted. See State v. Serrato, 424 So.2d 214 (La.1982). Defendant was presented with a promise, signed by the District Attorney's Office, that the State would not seek the death penalty in exchange for Defendant's confession, names of any and all other participants, and Defendant's polygraph verification of his statements. Subsequently, Deputy Chief Kraus continually altered the conditions of the deal. In fact, Defendant wasajuvenile at the time of the alleged crime, and he could not be subjected to the death penalty. This offer constituted impermissible inducement. Additionally, for nearly seven hours Defendant was repeatedly told he faced execution and that he was indeedthe guilty party. Defendant repeatedly declared thathe no longer wanted to talk to his interrogators, but the inquisition continued apace without stopping or acceding tohis wishes. Defendantrepeatedly stated totheinterrogators thathe was just trying to tell them what they needed sohe could gohome. Allofthese factorstaken together leave no doubt that Defendant's confession wasnotfree and voluntary and cannot beused againsthim forany purposeinthestate's case inchief, (Exhibit H, pgs. 2-3) We additionally make clear that the trial court's ruling which seems to bootstrap Defendant's reference on June 1 about being "relieved to get this off his chest" with his earlier confession is also improper. Defendant points out this statement to the jailer made the day after his interrogation has no value and has no meaning without reference to his illegal confession the day before. We again declare Defendant's confession was not free and voluntary for a variety of reasons and thus it cannot be used for any purpose as evidence or in any way be admitted at trial in the state's case in chief or for the purpose of impeachment. The State cannot use Defendant's remark on June 1 as a backdoor avenue to show his illegal confession on May 31 to thejury.” (Emphasis added) (Exhibit H, pgs. 2-4). Inthe meantime, however, in another incredible lack of restraint, the State urged the court to deny the defendant expert funding based on his false confession. Using injustice to further injustice — taking the fight to fundamental fairness, After the State announced its intent to call a number of expert witnesses, the defense filed pleadings to have the defendant confirmed indigent so as to obtain access to funds for its own expert witness. In response, the State argued because the defendant had confessed to the crime, he shouldn’t get an expert—that such would be “an exercise in futility.” The State argued, after the Third Circuit had held the “confession” was inadmissible: “The defendant confessed to committing the instant offense, and expenditure of funds on any such experts would be an exercise in futility.” (Exhibit I, pg. 2). What's more, Holland then went on television and voiced his nonsense to the public: “Its amazing to me that they, the criminal defense lawyers here have the chutzpah to ask for an expert witness. Not only is there DNA linking the offender to the murder, there is fingerprint evidence linking him to the murder, and he confessed to the murder.” “Why should he [trial judge] order somebody to spend money on a DNA expert when all of the evidence says that it’s a waste of money?” (Exhibit J). Needless to say, a clear pattern had developed with respect to the State's willingness to go on the news and promote pure falsehoods. That is, much like the police did the day after the illegal confession was obtained, Holland continued to parade on the news,repeating ad nauseum that the defendant had confessed to the crime, knowing that the ‘Third Circuit had declared it inadmissible and that it was not free and voluntary. Further, in both courtand on TV., he continuously promoted the notion that because defendanthad “confessed” to the crime, he ought not be provided an expert—that such was a “waste of time.” Holland’s statements were nothing short of propaganda designed to prejudice the case and obstruct the defendant's rights. They were also a remarkable public demonstration of the State’s willingness to not only shamelessly abandon their obligations to that same public but ignore unfavorable rulings altogether. By all indications, the State became consumed with a “win at all cost” mentality —to hell with the truth, we want to win. Not surprisingly, the trial court would go on to find the defendant was not indigent—this yet another ruling flying in the face of black letter law and the record evidence, even after the Public Defender, the sole arbiter of indigency, declared the defendant was indigent in open court. The Third Circuit quickly overturned the court. (Exhibit k). Still, the most lethal attack on the defendant's fundamental rights is what happened next. Itis also why this Court is called upon to fashion an appropriate remedy The Coup D’état ~ release of previously sealed defense strategy directly to State by way of ex parte communication between trial court and State While making the defense jump through hoops to prove the need for an expert witness, the trial court required defense counsel to describe with particularity the reasons and theories upon which they would rely, and for which they needed expert witness testimony. By law, these kinds of proceedings are sealed, and the District Attorney, in particular, is barred from participating or even being in the room, because the proceedings themselves reveal the mental impressions, strategies, and theories of counsel - the very heart of privileged work product. During the proceedings, the trial court candidly acknowledged the principal aim in sealing the records was to “protect the integrity of the defense's case.” ‘Yet on September 30, 2019, the trial court granted, ex parte, and without notifyingdefense counsel, request by the State to unseal the record associated with the defendant's indigency proceedings—this despite knowing full-well that those proceedings contained specific insight into the defendant's strategy for defending this case, including particularized reasons for the need and intended use of expert witnesses. (Exhibit L). In other words, the trial court forced the defendant to reveal his strategy to get funding, acknowledged the need to protect the secrecy of it, denied the request for funding and then secretly gave the defense strategy over to the State. The defense did not even get an opportunity to object. Employees of the Calcasieu Parish District Attorney's Office then immediately proceeded to the Calcasieu Parish Clerk of Court's Office where they viewed the record of proceedings and made copies of previously sealed/ protected documents. (Exhibit M). Contained within these records were transcripts of particularized explanations of Gefense counsel's strategy with corresponding exhibits. Likewise, the records include detailed and thorough explanations of the defense’s need for and intended use of experts together with specific reference to evidence previously turned over by the State which the defense intended to counter. Point being, irreparable damage was imposed on the defendant's right of due process, his right to a fundamentally fair process, his right to counsel, and his attorney work product privilege What did you expect? In response, defense counsel quickly moved and was successful in having Judge Canaday recused, Still, in anticipation of this Motion, defense counsel also made a public records request to the trial court on March 9, 2020 seeking the following: “Any and all emails sent by you and/or Rhonda Taylor to any employee and/or attorney of the Caleasieu Parish District Attorney’ s Oifice between August 15, 2019 and October 15, 2019 in regard to the State of Louisiana v. Dennis Bartie case and the State's filing of a Motion to Unseal.” (Exhibit N) Thereafter, on March 11, 2020, the defendant received the following response from Judge Canaday: “Dear Mr. Johnson: Thave received your Public Records Request dated March 9, 2020. At this time I do not believe the items you are requesting would fall within public records. I have contacted other members of the Court and they share my concerns due to the rules we are guided by under the Supreme Court. 3‘The Supreme Court does not allow us to comment on cases in existence that are ongoing. And, further, we are not even allowed to testify or give information without contradictory hearings. At this time your request is declined for those reasons. When I discussed this matter with the Court it appears to be one of first appearance and the case you cited is distinguishable. Ithas to do with a transcript that would be a court proceeding. Please pursue whatever measures you think would be appropriate.” (Exhibit O). In response, that same day defense counsel sent the Calcasieu Parish District Attorney's Office a similarly worded public records request. (Exhibit P). Notwithstanding, on March 13, 2020, defense counsel received a second response from Judge Canaday: “Dear Mr. Johnson: I apologize but I have been in a jury trial all week that is extending into next week. After a more thorough review of your March 9, 2020 correspondence, I can adequately respond to your specific request of ‘any and all emails sent by you and/or Rhonda Taylor to any employee and/or attorney of the Calcasieu Parish District Attorney’ s Office between August 15, 2019 and October 15, 2019 in regard to the State of Louisiana v. Dennis Bartie case and the State's filing of a Motion to Unseal’ There are no emails sent by me and/or Rhonda Taylor to any employee and/or attorney of the Calcasieu Parish District Attorney’ Office between August 15, 2019 and October 15, 2019 in regard to the Siate of Louisiana v. Dennis Bartie case and the State's filing of a Motion to Unseal.” (Exhibit Q). On March 19, 2020, defense counsel received its response from the Calcasieu Parish District Attorney’s Office, which included an email from Judge Canaday to an employee of the Calcasieu Parish District Attorney’ Office dated September 16,2019, 3:35 p.m. (Exhibit R). The subject line reads “Re: Dennis Bartie - Funding Writ Ruling KW 19-598,” The email from Judge Canaday appeared to be in response to receiving a forwarded email from an employee of the district attorney's office attaching the Third Circuit's ruling overturning the trial court's indigency determination. Judge Canaday’s response read as follows: “If the state wants to take up to the Supreme Court, I will unseal the record. GMC” Important to note is defense counsel was not courtesy copied on any of the emails received pursuant to the public records request and sent between the Caleasiew Parish District Attorney's Office and the trial court judge. Equally concerning is the State's silence during the recusal hearing regarding these exparte emails. After all, when asked directly by this Court during the recusal hearing why 9the State filed the Motion to Unseal in the first place, this Court should recall that the State's response was that such was irrelevant for purposes of the Motion to Recuse proceeding. False. The fact the State filed the ex parte Motion to Unseal following ex parte communications with the trial court was entirely relevant. Indeed, defense counsel had already tried to subpoena this very information from the district attorney’ office. (Exhibit S), The State knew it was relevant and once again, it chose to conceal the truth. These actions by law enforcement, the State, and the trial court constituted extreme and outrageous government misconductand violated defendant's right to due process and fundamental fairness. Likewise, such conduct demands a remedy from the trial court. Dismissal of the prosecution by the trial court is the only appropriate remedy. THE LAW Again, the law is clear—if egregious enough, a trial court by way of its supervisory jurisdiction has the authority to dismiss a case based on any of the following grounds: 1) Government misconduct; 2) Outrageous law enforcement action 3) Violation of defendant's right to due process; 4) Violation of defendant's right to fundamental fairness, which itself is a form of due process violation but has various additional forms; and 5) Prosecutorial misconduct. GOVERNMENT MISCONDUCT In certain prescribed instances the Government is estopped from bringing a prosecution because of their own misconduct. See Rochinv. People of California, 342US. 165, 72S,Ct. 205, 96 L.Ed. 183 (1952). Hampton v. ULS., 425 US. 484, 96 S.Ct. 1646, 48 L.Ed.24 113, (1976); U.S. v. Graves, 556 F.2d 1319 (Sth Cir, 1977). Accordingly, the defense of government misconduct is a court created limitation upon the activities of the government in the court's exercise of its supervisory jurisdiction over the administration of criminal justice. US.C.A. Const. Amend. 14, State v. Caldwell, 616 $0.24 713 (La. App. 3rd Cir-1993); State v. Lee, 778 So2d 656 (La. App. 4 Cir. 1/4/01). In other words, the defense of government misconduct is a remedy created by the courts to protect the public againstgovernment misconduct in the absence of any other available remedies, and in light of the State's inability, in some cases, to police itself against misconduct ‘The issue of whether or not the prosecution of a defendant should be barred as a result of government misconduct or overreaching is a question of law. Id. Likewise, the trial judge must decide if governmental misconduct is so outrageous or fundamentally unfair that it deprives a defendant of due process. Id. See also U.S. v. Yater, supra; and U.S. 2. Graves, supra. A motion to quash is a proper procedural vehicle to assert a claim of governmental misconduct. State v. Caldwell, supra; State v. Smith, 614 S0.2d 778 (La. App. 24 Cir, 1998); State v, Boyd, 548 So.2d 1265 (La. App. 24 Cir. 1989); State v. Marks, 508 So.2d 32 (La. App. 1% Ciz, 1986). OUTRAGEOUS LAW ENFORCEMENT ACTION A court may also dismiss an indictment when the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar government from invoking judicial process to obtain a conviction. United States 0. Russell, 411 US. 423, 431- 32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); Linited States 0. Simpson, 813 F.2d 1462, 1464 (9th Cir.) cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987) (Simpson I). To constitute a Fifth Amendment violation under Russell, the government conduct at issue must be fundamentally unfair and “’shocking to the universal sense of justice’ mandated by the Due Process Clause of the Fifth Amendment.” Russell, 411 U.S. at 432, 98 S.Ct. at 1643 (quoting, Kinsella v. United States, 361 US. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960). “[T]he determination of when the government's behavior reaches such a ‘demonstrable level of outrageousness’ to constitute a due process violation is ‘at best elusive.” United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir.1986), vacated on other grounds, U.S. v. Wingender, 790 F.2d 802 (9th Cir.1986) (quoting LInited States v. Jonnotti, 673 F.2d 578, 606 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 LEd.24 1315 (1982)). Therefore, every case must be resolved on its facts. Bogart, 783 F.2d at 1438, Whether outrageous government misconduct exists turns on the totality of the circumstances. United States v. Tobias, 662F.2d 381, 387 (5th Cir.1981), cert. denied, 457 US. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982). ulIn United States v. Batres~Santolino, 521 F Supp. 744, 750-53 (N.D.Cal.1981), Russell was invoked to dismiss an indictment resulting from outrageous government misconduct which induced the defendant to commit a crime. See also Bogart, 783 F.2d at 1434-38 (discussing the history of the doctrine’s evolution and application). However, because the Ruscel! doctrine is grounded in the due process clause of the Fifth Amendment, it may be applied in cases where government interference in an attorney-client relationship is so shocking to “the universal sense of justice” that it violates due process. See United States v. Ofehe, 817 F.2d 1508, 1516 (11th Cir.1987). Three legitimate bases for court's exercise of its supervisory power are: to remedy violation of statutory or constitutional right; to preserve judicial integrity; and to deter future illegal conduct. Id, What could be more outrageous to fundamental faimess than threatening a person with death if he refuses to confess to a crime? DUE PROCESS AND FUNDAMENTAL FAIRNESS The concept of “due process” is rooted in the canons of decency and fairness, which express the notions of justice of English-speaking people. US.C.A.Cons.Amend. 14. See: Rochin v, People of Calif, 342 US. 165, 72 S.Ct. 205, 96 L-Ed. 183 (1952). The courts are responsible for ensuring that fundamental fairness is preserved, See Linited States v. Graves, 356 F.2d 1319 (Sth Cir,, 1977). This is a cornerstone of our nation - that the courts act as a check against intrusions on liberty by the State. To declare a denial of due process, a court must find that the absence of fundamental fairness fatally infected the trial, or that the acts that occurred were so egregious as to necessarily prevent a fair trial. State v. Papizan, 256 So.2d 1091 (La. App. 1 Cir. 11/2/17). Likewise, a Fifth Amendment due process violation may occur when government interference in attorney-client relationship results in ineffective assistance of counsel or when government engages in outrageous misconduct. US. v. Marshank, 777 F Supp. 1507 (1991). An appropriate remedy for a Fifth Amendment violation is generally suppression of evidence; however, dismissal is appropriate where continuing prejudice from constitutional violation cannot be remedied by suppression of evidence. Id. US.C.A. Const. Amend. 5, 12Defining fundamental fairness as it relates to due process has plagued courts for some time, as such an analysis is a fact-intensive inquiry, as the Louisiana Fifth Circuit has noted. State v. Gravois, 17-341 (La. App. 5 Cir. 12/13/17); 234 So. 3d 1151, 1163 Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Rather, the phrase expresses the requirement of "fundamental fairness," a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise [that] must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake. Id. Courts have recognized the following as fundamentally unfair, including: admission of coerced confessions, discovery inequality, misuse of prosecutorial power, denying a defendant the opportunity to have an expert of his choosing to testify at his trial, prosecutorial misconduct, unfair allotment practices, unfair bargaining in criminal proceedings, subjecting criminal defendants to numerous criminal trials after hung juries, decreased jury size and outrageous government conduct. Lisenbav. California, 314 US. 219, 237-238 (1941); Wardius v. Oregon, 412 US. 470,471 (1973); State v. Reimoneng, 2019-0367 (La. 10/22/19); 286 So. 3d 412, 416-417; Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir. 1975); State v. Gravois, 17-341 (La, App. 5 Cir. 12/13/17); 234 So. 3d 1151, 1163; State v. Nunez, 2015-1473 (La. 01/27/16); 187 So. 3d 964, 969-970; State v. Karey, 2016-0377 (La. 06/29/17); 232So. 3d 1186, 1190, State v. Kyles, 97-2660 (La. App. 4 Cir. 01/21/98); 706 So. 2d 611, 614 (noting that Louisiana courts have the power and discretion to bar retrials under certain circumstances where “enough is enough.”). Too many of these hallmark acts of fundamental unfairness have occurred in this one case. PROSECUTORIAL MISCONDUCT Courts have determined that a due process violation by the prosecutor, amounting to prosecutorial misconduct, may result in dismissal if the misconduct is outrageous enough to prevent or impede a fair trial. [Flair play.... is the essence of due process.” Galvan v. Press,347 US. 522, 530,74S.Ct. 737, 98 L.Ed. 911 (1954). Such fair play includes “the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminalsas from the 13actual criminals themselves.” Spano v. New York, 360 US. 315, 320-21, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). This deep-rooted feeling extends even deeper where prosecutors are concerned, given their status as officers of the court bound to special rules of professional conduct. See, e.g,, La. Rules of Professional Conduct, Rule3.8 (Special Responsibilities ofa Prosecutor). In re Jordan, 04-2397 (La. 06/29/2005), 913 So.2d 775, 781 In our system of justice, we entrust vast discretion to a prosecutor. In re Toups, 2000-0634 p. 10 (La. 11/28/00), 773 So.2d 709, 715. Because a prosecutor is given such great power and discretion, he is also charged witha high ethical standard. Id. A prosecutor stands as the representative of the people of the State of Louisiana. He isentrusted with upholding the integrity of the criminal justice system by ensuring that justice is served for both the victims of crimes and the accused. “Society wins notonly when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady, 373 US. at 87, 83S.Ct. 1194. The reasons for prosecutorial self-restraint are manifest. Although ‘[s]tatements to the press may be an integral part of a prosecutor'sjob, and .. may serve a vital public function’ that function is strictly limited by the prosecutor's overarching duty to do justice.' Those who wield the power to make public statements about criminal cases must ‘be guided solely by their sense of public responsibility for the attainment of justice.” Aversa 0, United States, 99 F.3d 1200, 1216 (1st Cir.1996) (quoting Souza v. Pina, 53 F.3d 423, 427 (Ist Cir.1995)). Insulating the prosecution and trial from bias, prejudice, misinformation, and evidence revealed outside the courtroom are crucial to the fairness of our processes. Equally important, the prosecutor must respect the presumption of innocence even as he seeks to bring a defendant to justice. ULS. v. Boren, 799 F.3d 336. Justice Sutherland eloquently captured the prosecutor's calling. A government prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor —indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Id, Also, Berger 0. United States, 295 US. 78, 88, 55S.Ct. 629, 79 LEd. 1314 (1935), overruled onother grounds by Stirone v. United States, 361 US. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). ‘These are the very principles and actions that the State has repeatedly, willfully, andintentionally flouted in this case. The State has regularly made intentional misrepresentations, both in court and in public, referred to evidence that has been declared inadmissible, again in court and in the press, and engaged in ex parte communications designed to infringe upon attorney work product so as to gain an unfair advantage at trial. In United States v. Stein, 541 F.3d 130, 139-140 (2d Cir. 2008), dismissal due to prosecutorial misconduct was proper where the misconduct infringed on the defendants’ right to counsel. In Stein, multiple defendants (employees of KPMG) were indicted on a number of offenses, including fraud, tax evasion, and obstruction ofjustice. In the course of the case, the Government placed pressure on KPMG to cap and limit the legal fees it paid to the defendant's lawyers. Id. at 143-144. The district court determined that absent KPMG's updated legal fee policy, revised at the behest of the Government, KPMG would have “advanced [legal] fees without condition or cap.” Id The court ultimately found KPMG 's limitation of defendant's legal fees was directly attributable to Government action, Id. at 146-147. The Court agreed that “the government unjustifiably interfered with their relationship with counsel and their ability tomount “the best defense they could muster.” Id. at 154. As such, the government action violated the defendants’ Sixth Amendment right to counsel and hindered their ability to properly defend themselves. Id. at 157. The court affirmed the district court's decision to dismiss the indictments based on government misconduct. Id. DISCUSSION OF REMEDIES Recusal of District Attorney as a remedy Recusing the district attorney would be an insufficient remedy for what hopefully is an obvious reason by now. It would tell the defendant that his remedy for all of these flagrant violations is to simply take the word of the offending party that they won't share sensitive defense strategy with another State counterpart. That, under the circumstances of this case, would be telling the defendant simply to take the word of the same people who threatened him with death if he didn’t confess, lied about it in court, and gained improper access to the sensitive information in the first place. Every facet of the governmental entity that is in place to protect his rights has failed this defendant in this case. As such, askinghim to rely on the protection of the same governmental entity, just one under a different roof, is simply not an acceptable remedy. Suppression of the DNA and Fingerprint Evidence In full transparency, suppressing the DNA and fingerprint evidence might likely result in the case being dismissed. However, any remedy less than dismissal would leave the offending party responsible for deciding whether the case continued and allow them to do so with the benefit of all of their false representations to the media regarding the case. Given the State's actions, they should no longer have that right nor should the defendant continue to suffer from any effects of their misdeeds. Given multiple, unmistakable examples of government misconduct—numerous, brazen violations of due process and fundamental fairness— prosecution in this case should be foreclosed by the trial court. CONCLUSION In the case at bar, we have multiple, unmistakable examples of government misconduct—numerous, brazen violations of due process and fundamental fairness— outrageous law enforcement action—and rampant prosecutorial misconduct. To that end, there is nothing that can now be done to remedy the obvious interference these actions have placed on the defendant's fiith amendment right to counsel. For these reasons, this case should be dismissed, No other remedy is sufficient to return the status quo. A fair trial is no longer achievable. WHEREFORE, mover prays now this motion be set for hearing on a date and time to be selected by the Court and that after due proceedings had there be judgment dismissing the prosecution against the defendant. Respectfully Submitted, 910 Ford Street Lake Charles, La 70601 > (77) 433-1414 [Telephony (337) 433.3284 /Facs aa Sel ADAM P. JOHNSON, #32515 TODD S. CLEMONS, #18168 JANET D. MADISON, #37495 Attorneys for Dennis Jerome BartieSTATE OF LOUISIANA. 14TH JUDICIAL DISTRICT COURT ‘VS. NO, 12615-16 PARISH OF CALCASIEU DENNIS JEROME BARTIE STATE OF LOUISIANA FILED: DEPUTY CLERK OF COURT ORDER Considering the foregoing: ITIS HEREBY ORDERED thata hearing on defendant's Motion to Quash be set for the day of at merits of same. ‘THUS DONE AND SIGNED in Lake Charles, Louisiana this 2020. aam./p.m. for purposes of determining the day of May, HONORABLE JUDGE CLAYTON DAVIS PLEASE SERVE: John DeRosier, District Attorney Calcasieu Parish District Attorney’s Office 901 Lakeshore Drive Lake Charles, LA 70601 Elizabeth Hollins, Asst. District Attorney Calcasieu Parish District Attorney’s Office 901 Lakeshore Drive Lake Charles, LA 70601 Hugo Holland, Asst. District Attorney Caleasieu Parish District Attorney's Office 901 Lakeshore Drive Lake Charles, LA 70601 Jacob Johnson, Asst. District Attorney Caleasieu Parish District Attorney's Office 901 Lakeshore Drive Lake Charles, LA 70601CERTIFICATE OF SERVICE Thereby certify that a copy of the above and forgoing Motion to Quash has been delivered upon: John DeRosier, District Attorney Elizabeth Hollins, Assistant District Attorney Hugo Holland, Assistant District Attorney Jacob Johnson, Assistant District Attorney 901 Lakeshore Drive Lake Charles, LA 70601 via email this 30% day of April, 2020. ADAM P. JOHNSON