In a ruling that dealt a potential blow to Attorney General Jeff Landry’s attempts at blocking a historic push to clear Louisiana’s death row, a Baton Rouge judge on Thursday disqualified his legal team from defending him in a death penalty clemency lawsuit.
Calling it a “problematic” and inappropriate “end-around” maneuver, District Judge Richard “Chip” Moore found that Landry violated state statutes last month when he fired an attorney previously assigned to represent the Louisiana Board of Pardons and Committee on Parole in ongoing litigation tied to dozens of death penalty clemency petitions. Landry later appointed New Orleans law firm Sher Garner as special counsel to represent the board.
Moore ruled the governor-elect had a conflict of interest when he made the swap and ordered Sher Garner to step down from defending the Board of Pardons in a lawsuit that death penalty abolitionist Brett Malone filed earlier this month against Landry and the review board. It was one of multiple lawsuits filed challenging the validity of a settlement deal the board struck with Landry and several district attorneys from across the state who opposed the clemency bids.
The judge acknowledged the “180-degree polar opposite” public stances Landry and outgoing Gov. John Bel Edwards took in an unprecedented effort to commute the sentences of 55 of the 56 prisoners on death row to life in prison.
Edwards, a devout Catholic, broke his years of silence on the death penalty in March, saying capital punishment runs counter to his “pro-life” beliefs. Landry, who won the governorship Saturday in an outright primary victory, is an ardent supporter of the death penalty. He has called for firing squads and other execution methods to be reinstated due to a shortage of lethal injection drugs.
“I believe in this situation, based on the actions taken by Jeff Landry, which were totally opposite of what the governor wanted, the Board of Pardons needs to hire its own lawyer subject to approval of the governor and the attorney general,” Moore said in ruling to dismiss Sher Garner from the lawsuit for the time being. “That way I know that there’s no issue, no unfairness going on, and the board has clear representation that’s not influenced one way or the other.”
Sher Garner is a politically active law firm that has represented both Landry and Edwards in past high-profile cases. The judge left the door cracked for the firm to reassume its role as legal counsel, but only if Board of Pardons members choose to rehire it after meeting on the record.
Moore granted the Attorney General’s office a 29-day stay to allow the state to search for another lawyer to handle the case. He set a Nov. 17 court date to convene for another hearing.
A spokesman for the Attorney General’s office said an appeal of Moore’s ruling is anticipated.
The Board of Pardons initially hired Baton Rouge attorney J. Arthur Smith to fight its case when the Attorney General’s office and DAs in six parishes filed lawsuits in September to halt the expedited requests for clemency on procedural grounds.
When Smith asked Landry to recuse himself from the lawsuit, Landry fired the contracted attorney from handling the board’s case and accused Smith of having a conflict of interest himself.
“Your letter indicating that a conflict exists calls into question your competency as a lawyer … You are not authorized to serve as legal counsel,” Landry wrote in a Sept. 26 letter.
But when Landry later appointed Sher Garner, Moore said, he didn’t follow protocols for retaining special counsel like getting written approval from both the attorney general and the governor and filing a written statement saying why the special counsel is necessary.
The judge also said there was no evidence Sher Garner ever notified the board of its past work handling cases for the governor’s office.
“The whole way that happened is problematic,” Moore said. “It’s like an end-around. Without something being said by the law firm to the Board of Pardons … I believe it was improper.”
At the direction of Edwards, the pardon board had scheduled hearings over four fall dates for the first 20 death row applicants, to begin Oct. 13. But the board approved a settlement deal at its Sept. 29 meeting that limited the four dates to “administrative” hearings to see if the 20 applicants could get formal pardon hearings. Those formal hearings couldn’t happen until 60 days after admin hearings to allow for notice of victims and others, under the terms of the deal.
Consequently, only five death row prisoners received hearings last Friday, and the pardon board rejected each of those clemency requests.
Soren Gisleson, the plaintiff’s New Orleans attorney, said Thursday’s ruling could retroactively nullify the settlement agreement.
“Arguments can be made that if they’re qualified today, they never should have advised the board on any legal matters before today,” he said after the hearing. “Which means every action that the board took at the direction and with their advice of disqualified lawyers should not count. And any alleged attorney-client communications wouldn’t apply and should be public record.”
Malone, the plaintiff, is a Shreveport man who has spoken out vociferously against capital punishment. Jeremiah Manning, now 42, was convicted in 2002 for the brutal December 2000 killing of his 62-year-old mother, Mary Ann Shaver Malone, in Plain Dealing, a small Bossier Parish town in the northwest corner of Louisiana.
Now Manning is one of the prisoners asking the state to commute his death sentence to life in prison, and Malone has advocated for his life to be spared.
Malone, in his petition, described the intense effort as a “unique window for commutation of the death penalty in Louisiana,” but the board acquiesced to Landry’s demands and allowed those pressures to interfere with Edwards’ executive powers.
He lodged his lawsuit the same day prominent death penalty abolitionist Sister Helen Prejean filed a similar petition in the 19th Judicial District Court, asking a judge to void the settlement agreement. Prejean argued the parole board failed to follow open meetings laws when it issued notice of its Sept. 29 meeting. Another lawsuit filed by advocates Tuesday in federal court claims the state violated death row prisoners’ civil rights by maneuvering to cancel the formal clemency hearings.