State of Louisiana Versus Walter Sippio ( 2023 )

STATE OF LOUISIANA NO. 23-K-426
VERSUS FIFTH CIRCUIT
WALTER SIPPIO COURT OF APPEAL
STATE OF LOUISIANA
September 01, 2023
Linda Wiseman
First Deputy Clerk
IN RE WALTER SIPPIO
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD L. FORET,
DIVISION "H", NUMBER 21-5042
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and John J. Molaison, Jr.
WRIT GRANTED; RULING ON MOTION TO WITHDRAW
REVERSED; MOTION TO WITHDRAW GRANTED
Relator, Walter Sippio, seeks this Court’s supervisory review of the trial
court’s August 24, 2023 ruling which denied his counsel’s Motion to Withdraw.
Trial on the merits of this matter is set for September 11, 2023.
The State filed a “Response” to the writ application, asserting therein that
defense counsel should be allowed to withdraw. For the following reasons, we
find that the trial court abused its discretion in denying the Motion to Withdraw.
We accordingly reverse the trial court’s ruling on the Motion to Withdraw and
grant the Motion to Withdraw.
Eusi Phillips, counsel for defendant, represented defendant in his first trial,
which ended in a mistrial due to a hung jury on May 10, 2023. In August of 2023,
Mr. Phillips accepted a position with the St. John the Baptist Parish District
Attorney’s Office, beginning on September 1, 2023. Mr. Phillips informed the trial
court of such on August 23, 2023, and filed a Motion to Withdraw on August 24,
2023, which the trial judge denied, citing the September 11, 2023 trial date. Mr.
Phillips requested a stay of the trial, which was also denied.
Article V, § 26 (C) of the Louisiana Constitution provides that “no district
attorney or assistant district attorney shall appear, plead, or in any way defend or
assist in defending any criminal prosecution or charge. A violation of this
Paragraph shall be cause for removal.” Rule of Professional Conduct l.l6(a)
requires that a lawyer timely withdraw from representation when continuing the
representation would violate the Rules of Professional Conduct or other law. La.
C.Cr.P. art. 65 provides in pertinent part that “[i]t is unlawful for the following
officers or their law partners to defend or assist in the defense of any person
charged with an offense in any parish of the state: ... [a]ny district attorney or
assistant district attorney.”
The State points out in its Response that while it does not impugn defense
counsel’s integrity or adherence to the Rules of Professional Conduct, his
continuing to represent defendant in the instant case could create the appearance of
impropriety and cast an unnecessary specter over this case. The State argues that if
defendant is convicted at trial, he could urge in a post-conviction relief application
that defense counsel had a conflict of interest given his pending employment as an
assistant district attorney, or that defense counsel “threw the case” given that
defense counsel immediately thereafter commenced work as an assistant district
attorney. It further argues that while those allegations would be meritless, they
represent an unnecessary and easily avoidable issue.
In State v. Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, 887, cert.
denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), the history of the
case showed that a defense attorney’s motion to withdraw was granted after he
accepted a job with the Jefferson Parish District Attorney’s Office.
The grant or denial of a motion to withdraw as counsel is within the “well
founded” discretion of the trial court. State v. Stewart, 493 So.2d 227, 232 (La.
App. 5 Cir. 1986) (citing State v. Franks, 284 So.2d 584 (La. 1973)).
Considering that there has been one previous mistrial in this matter, the
integrity of the proceeding against relator must be protected, even at the risk of
trial not going forward on September 11, 2023. Under the circumstances
presented, we find that it was an abuse of the trial court’s discretion to deny Mr.
Phillips’s Motion to Withdraw. Defense counsel has accepted a position as an
assistant district attorney in St. John the Baptist Parish with a start date of
September 1, 2023. This position would legally bar defense counsel from
performing criminal defense work, which would include representing defendant in
the instant case after September 1, 2023. See La. Const. Ann. art. V, § 26; La.
C.Cr.P. art. 65. Also, defense counsel should be allowed to withdraw to avoid the
suggestion of impropriety which could arise. See Official Revision Comment (a)
to La. C.Cr.P. art. 65. Further, the State agrees that defense counsel should be
allowed to withdraw. Under these particular circumstances, we find that the trial
court abused its discretion in denying defense counsel’s Motion to Withdraw.
Accordingly, the writ application is granted; the trial court’s ruling on the Motion
to Withdraw is reversed; and the Motion to Withdraw is granted.
Gretna, Louisiana, this 1st day of September, 2023.
JGG
SJW
JJM
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
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 DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 09/01/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:
23-K-426
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Donald L. Foret (DISTRICT JUDGE)
Thomas J. Butler (Respondent) Eusi H. Phillips (Relator)
Darren A. Allemand (Respondent)
MAILED
Honorable Paul D. Connick, Jr.
(Respondent)
District Attorney
Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053