Landmark ruling is made

Thanks to an ongoing murder case, the 5th Circuit Court of Appeal, State of Louisiana, left no doubt that an accused citizen has a constitutional right to a prompt preliminary examination hearing after arrest. Since 1974, the Louisiana constitution says suspects cannot be detained for long periods of time without challenging the strength of the evidence against them before they get to go to court, which could be months. In practice, that change did not occur in Evangeline Parish until last week.
Before 1974, accused citizens in Louisiana had a statutory right to a preliminary examination, which is a hearing to determine if there is enough evidence for an indictment. In 1974, the citizens of Louisiana and the legislature decided to make that law a constitutional right. As it stands now, if the State is going to confine a suspect, and that citizen files to have a preliminary examination, then the State has to show probable cause to be able to continue to hold them. Now, it is against a citizen’s constitutional right to be held for extended periods of time before a preliminary hearing. These types of hearings are not the normal practice in Evangeline Parish, but Trisha Ward of the Public Defender’s office is the first one to challenge the court about what it means to hold a preliminary hearing promptly. She filed for such a hearing for her client, Zane Smith, but it was not granted promptly, so she challenged the court.
There are two ways to start a prosecution against someone; either the District Attorney can sign a Bill of Information, which means only the D.A. chooses to make the decision to go forward with prosecution. The other way is the D.A. can go to the grand jury and have them examine the evidence. If the grand jury says there is enough evidence to make a charge, then the accused’s right to the preliminary examination is discretionary. Either the judge can allow the accused to have a limited hearing, or can say they do not have any rights to a hearing at all.
According to an emergency writ filed with the 5th Circuit Court of Appeal, State of Louisiana, on May 4, 2020 Zane Smith was arrested on the charge of 2nd degree murder. Ward filed a motion for a preliminary examination on May 22nd. Once requested, the law mandates that hearing to be held promptly, however the hearing was set for September 3, 2020. By September 3rd, the defendant had been in jail for 122 days, and the State, represented by Assistant District Attorney Marcus Fontenot, moved to reset the date of the hearing to February 4, 2021, alleging it had been unable to investigate due to the COVID-19 pandemic. The trial court, presided over by Judge Gary Ortego, granted the state’s request in open court. Ward objected to the February date, saying her client had been waiting long enough, so Ortego left the trial date for February, but moved the preliminary hearing to November.
Ward objected to the November date and filed for an emergency supervisory writ, which is basically a mini appeal, shortly thereafter with the 5th Circuit. Normally reviews are done by the 3rd Circuit, but because the 3rd Circuit is in Lake Charles, which is still recovering from Hurricaane Laura, these appeals have to go to the 5th Circuit for now. Ward requested the 5th Circuit overturn the trial court’s ruling to delay the preliminary examination and order them to have an immediate hearing for her client.
A little after noon on Friday, September 25th, the 5th Circuit sent its opinion on the matter. In its opinion, the appellate court said of the A.D.A.’s pandemic excuse, “While the Supreme Court and Louisiana State Governor John Bel Edwards issued various orders prohibiting jury trials and excluding various continuances from speedy trial considerations due to the coronavirus pandemic, those orders do not apply to preliminary examinations.”
The court further explained Louisiana moved to Phase II of reopening on June 4, 2020, “at which time the public regained the ability to gather indoors (as groups of 25 or less) and outdoors (as groups of 50 or less).” They also pointed out that the prohibition against jury trials ended June 30, 2020. The court continued: “As such, we find that COVID-19 did not preclude the State from conducting interviews in person, over the phone, or through other technology. The State had ample time to investigate and gather sufficient information in order for a preliminary examination, in which it only need establish probable cause.” The appellate court then granted the writ and ordered Ortego’s court to immediately hold a hearing for the defendant within the next 48 hours, exclusive of the weekend.
Ortego then set the hearing for the following Tuesday at 1:00 p.m. A.D.A. Fontenot instead convened the Grand Jury before the hearing time, and changed Smith’s charge to 1st degree murder. The Grand Jury decided to indict on 1st degree murder.
When asked for comment, Ward only offered, “I will not comment on the details of the case. I can say the ruling by the 5th Circuit is a win for the entire criminal justice system in Evangeline Parish.”
Calls requesting comments from A.D.A. Fontenot and Judge Ortego, concerning the 5th Circuit’s ruling, were not returned.