DUPLICATE

IN THE
SUPREME COURT
STATE OF LOUISIANA

15 Kd 1 9 6 7

No.

STATE OF LOUISIANA, Plaintiff,

ERIC MICKELSON, Defendant.

Application for Writ of Supervisory Review
To Review the Ruling of
The Hon. Katherine Dorroh, judge Presiding,
In Case No. 262,256, Section 1
District Court for the Parish of Caddo
** Application simultaneous filed in the Louisiana
Court of Appeal for the Second Circuit **

APPLICATION B Y DEFENDANTF O R WRIT O F R E V I E W

Concerning the recusal of the District

Attorney

STAY REQUESTED

RE@DESJT F O R E X P E D I T E D C O N S I D E R A T I O N

M A R I O E . GUADAMUD #20458
K A T H R Y N S H E E L Y #3 0721

Baton Rouge Capital Conflict Office

525 Florida Street, Suite 310
Baton Rouge, LA 70801
Telephone: (225) 338-0235
Fax: (225) 338-1948
Email: kathryn@brcco,org
Counsel for Eric Mickelson

S T A Y

O R D E R

LOUISIANA SUPREME COURT

CRIMINAL
PRIORITY FILING SHEET

15 Kd 1 9 6 7

Statev. EricMickelson

1. What is the nature of the priority? Application made by: STATE DEFENDANT OTHER
Capital jury trial in progress
Specify:

(Circle one)

2. CHARGE: First Degree Murder

Is Defendant in Jail? NO

Vgs)

Is a hearing or trial date set? NO YES

IN PROGRESS

DATE:

Jury trial? NO

TIME:
Any out of state witnesses? NO

If convicted, convicted of:

3. Was relief applied for in the trial court? NO

By:

STATE "^DEFENDANT^STTIER

Stay: <j5&IEQ^GRANTED Until:

Ruling of Dist. Court: Motion and Mistrial Denied
4. Was an application made to the court of appeal? NO
Which Circuit?

4TH

1ST Q N E T ^ 3RD

Application was made by?

Si IHU

5TH

STATE ^DEFENDANT) OTHER

Date of Court of Appeal action:

Court of Appeal action:

If you did not apply to the Circuit Court of Appeal state why:

5. How and when will applicant be adversely affected if relief is not granted?
Reversible error caused by prosecution by biased and personally interested prosecutor

PHONE NUMBERS

6. List of Lead Coiiegel & Judge involved in case:

Name:

Home

D a v i d P r i c e

Day Bus. t^\W?_<t.WT>

Night Bus. C

Name: Dale Cox

Day Bus.

(1 1^1

SH 1 5 5 ^ 6

Night Bus.

1/11$, %

Home

(_

Home if

Dist. Ct. Judge: Katherine Dorroh

Day Crt. &

Night Crt. C

CERTIFICATIQS
I am requesting ^priority consideration of this application orj^l a stay pending consideration of this application.
Pursuant to Supftne Coart Rule 10, Section 2(e), I have notified all counsel and unrepresented parties by telephone
or other equally prompt means of conomaunication that said writ application has been or is about to be filed in this
court and that I haveserved on all parties at interest or their counsel, by a means equal to the means used to effect
filing in this court. iS I SHALL IMMEDIATELY NOTIFY THE COURT IF THE NEED FOR EXPEDITED
CONSIDERATION M 3 H A N G I S DUE TO SETTLEMENT, CONTINUANCE OR ANY OTHER
CIRCUMSTANCE. FAILURE TO NOTIFY THE COURT SHALL SUBJECT ME TO PUNISHMENT FOR
CONTEMPT OF THE AUTHORITY OF THE COURT.

^. jc^mSm.i

DATE
S:\CLEEK5\Rjtois\PRIORnY SHEET Giminai i-201! .wpsi

STGNAtURE

i%zmn,p^

3D?2,|
Revised i-20-H

SUPREME COURT O F LOUISIANA

W R I T APPLICATION F I L I N G SHEET
NO.
T O EE COMPLETED BY C O U N S E L or PRO SE L I T I G A N T F I L I N G APPLICATION
LE

^tMftof I tiirf-i2

Applicant: Eric Mickelson

Have there been any other filings in this
Court in this matter? Ei Yes
No

VS.

Are you seeking a Stay Order?

Priority Treatment? Yes
If so you M U S T complete & attach a Priority Form
Y e s

Eric Mickelson

LEAP

mmmm*m

APPLICANT:
Name:
X T

S B LITIGANT INFORMATION
RESPONDENT:

David Price

Name:

X T

Address: Baton Rouge Capital Conflict Office

Dale Cox

Address: Caddo Parish District Attorney's Office

525 Florida St., Suite 310, Baton Rouge L A 70801

,

22S33&4235

PhoneNo.
T

08733

Bar Roll No.

0

X I

501 Texas St. Shreveport L A 71101

n

318 841-5525

PhoneNo,
N T

tj h m

04518

Bar Roll No,

Pleading being filed: j j j l n proper person,

| t / | l n Forma Pauperis
Attach a list of additional counsel/pro se litigants, their addresses, phone numbers and the parties they represent.
TYPE OF PLEADING
QCivil, (gjCriminal, rjR.S. 46:1844 protection, } Bar, f-f_pivil Juvenile, [^Criminal Juvenile, |r) Other
CINC,

Termination,

OSurrender,

Adoption,

Child Custody

mmem&nW-m I f t J M I O P A L O O T T | M p M M A T 3 C T f

Tribunal/Court:

Docket No.

Judge/Commissioner/Hearing Officer:

Ruling Date:

msTRicr COURT INFORMATION

Parish and Judicial District Court: First Judicial District Court, Caddo Parish
Judge and Section:" "- Kan*** D o * . Section 1

Docket Number:.262.356

Date of Ruling/Judgment:

1 0 /

...

6 / 2 0 1 5

A P P E I X A T E COURT INFORMATION
Circuit

Docket No.

Applicant in Appellate Court:__

Ruling Date:

Action:
. .

Filing Date:

Panel of Judges:

En Banc: Q

REHEARING INFORMATION
Applicant:

.. Date Filed:

Ruling Date:

Action on Rehearing:

Panel of Judges:

.... ,

, ,

En Banc:

FMESENTSTATUi
Pre-Trial, Hearing/Trial Scheduled date:
Is there a stay now in effect? No
If so, explain briefly

ED Trial in Progress, Post Trial

Has this pleading been filed simultaneously in any other court? Yes

Writs have simultaneously been sought with the Second Circuit Court of Appeal
[CATION

I certify that the above information and all of the information contained in this application is true and correct
to the best of my teowtedfi and that all relevant pleadings and rulings, as required by Supreme Court Rule X,
are attached to this filing. I further certify that a copy of this application has been mailed or delivered to the
appropriate court of appeal (if required), to the respondent judge in the case of a remedial writ, and to all other
counsel and unrepresented parties.

" D A T E " " '

O:\laas\raJss\riliBgsO. wpd

h
Revised 32-9-98

TABLE OF CONTENTS
CRIMINAL PRIORITY F I L I N G S H E E T

WRIT APPLICATION F I L I N G S H E E T .,..,. ..,,....,.,..,.-..,.... -,.- B

M

rt

T A B L E OF CONTENTS

INDEX TO APPENDIX

II

ISSUES AND QUESTIONS OF LAW

Ill

ISSUES OF LAW

Ill

ASSIGNMENTS OF E R R O R

Ill

R U L E X(1)(A) CONSIDERATIONS

IV

REQUEST FOR STAY AND E X P E D I T E D CONSIDERATION

STATEMENT OF T H E CASE

SUMMARY OF ARGUMENT

ARGUMENT....

I.

T H E TRIAL COURT ERRED IN DENYING MR. MICKELSON'S MOTION TO RECUSE MR. COX AND

THE CADDO PARISH DISTRICT ATTORNEY'S OFFICE FROM PROSECUTING THIS CASE

A. THE LA W REQUIRING RECUSAL OF A DISTRICT ATTORNEY FOR PERSONAL

INTEREST
5
B. INTERIM DISTRICT A TTORNEY COX'S PERSONAL INTERESTS IN THE CA USE
CONFLICT WITH THE FAIR AND IMPARTIAL ADMINISTRA TION OF JUSTICE AND
THE DISTRICT COURT ERRED IN FAILING TO RECUSE HIM
6
II. THE TRIAL COURT ERRED IN DENYING MR. MICKELSON'S REQUEST FOR AN EVIDENTIARY
HEARING , n * , > . , . . , i r t , i , . , . , i , . ! . i i . i i f
4

III.

THE TRIAL COURT ERRED IN DENYING MR. MICKELSON'S MOTION FOR MISTRIAL

10

CONCLUSION AND P R A Y E R F O R R E L I E F

11

VERIFICATION AND C E R T I F I C A T E OF S E R V I C E

12

INDEX TO APPENDIX

Ex. 1 Indictment
Ex. 2 Minute Entries, 10/25/26 and 10/27/2015
Ex. 3 Order, 10/27/2015 (writ return date)
Ex. 3a Transcript of argument and ruling denying oral motion for recusal, 10/25/15.
Ex. 4 Motion for mistrial, to recuse interim district attorney Dale Cox and for an evidentiary
hearing about alleged death threats received by Mr. Cox and his family and the threats

Ex. 6. Writ denial, 10/23/2015.

Ex. 7. Second Motion to Recuse Interim District Attorney Dale Cox and For an Evidentiary
Hearing and Discovery Concerning in Light (sic) Revelation that Mr. Cox has been
Receiving Death Threats. 10/21/2015
Ex. 8 Transcript of hearing on denial of 10/21/2015 motion
Ex. 9. Motion to Recuse Interim District Attorney Dale Cox, 7/21/2015
Ex. 10. Extract from transcript of hearing, 7/23/2015
Ex. 11. Minutes from transcript of hearing, 8/25/2015
Ex. 12. Affidavit of Erica Navalance, 10/27/2015.
Ex. 13. Affidavit of Alexandra Agnew, 10/27/2015.
. E x - l i l FiXlrnct^frfnTHyawnnript

nl^iearijag,

10/25/2011.

Mr. Mickelson will supplement any exhibits that are currently unavailable as soon as they are
obtained.

ISSUES AND QUESTIONS OF LAW

ISSUES OF LAW
1. Did the trial court err in ruling that Mr. Cox should not be recused despite evidence that
he has physically threatened defense counsel and blames defense counsel for death
threats he and his family have received because of his views on the death penalty, and
despite Mr. Mickelson's showing by a preponderance ofthe evidence that Mr. Cox has a
personal interest in the cause which is in conflict with the fair and impartial
administration of justice. La. C.Cr.P. art 680(1).
2. Did the trial court err in denying Mr. Mickelson's request for an evidentiary hearing and
discovery, and in denying Mr. Mickelsons recusal motion without the contradictory
hearing required under La. C.Cr.P. art. 681.
3. Did the trial court err in denying Mr. Mickelson's motion for mistrial.

ASSIGNMENTS OF ERROR
1. The trial court erred in denying Mr. Mickelson's Motion to Recuse Dale Cox and the
Caddo Parish District Attorney's office from the prosecution of his capital trial.
2. The trial court erred in denying Mr. Mickelson an evidentiary hearing and discovery, and
in denying Mr. Mickelson's Motion without a contradictory hearing.
3. The trial court erred in denying Mr. Mickelson's motion for mistrial.

iii

R U L E X(1)(A) CONSIDERATIONS
Allowing the continued prosecution of a defendant by a District Attorney who has openly
expressed his desire to harm the defendant's defense attorneys, and who holds defense counsel
responsible for death threats against him and his family, is a gross deparature from proper
judicial proceedings. It is also violates the state recusal rules and the defendant's state and
federal constitutional rights to due process a fair trial, and a reliable capital sentening proceeding.
Mr. Mickelson will be materially injured i f his writ is not granted, because he is being
prosecuted by District Attorney who lacks due respect for Mr. Mickelson's basic rights, and
proper trial decorum. The prosecutor's misconduct resulted in such a prejudicial and hostile
atmosphere towards the defense, that it already already warrants a mistrial. Continued
prosecution in these circumstances will only erode Mr. Mickelson's rights fiirther, and
undermine the integrity of judicial proceedings.

iv

REQUEST FOR STAY AND EXPEDITED CONSIDERATION

Mr. Eric Mickelson seeks expedited consideration of his writ application relating to his
capital murder trial which began October 19, 2015, and a stay of the lower court proceedings
pending resolution of this writ.
Mr. Mickelson is being prosecuted by interim District Attorney Dale Cox, whose
personal interest in the cause, and open hostility towards the defense has now reached the level
that he is publically expressing his desire to do seriously physical harm to Mr. Mickelson's
defense counsel.
Mr. Cox has also asserted that he and his family are receiving death threats in response to
his strongly held views on the death penalty. He asserts that these threats are so serious that he
has moved his family and requires ongoing security measures by the police. Mr. Cox openly
stated that he holds defense counsel responsible for these threats. Either the foregoing is true, and
Mr. Cox has a personal interest in the cause which renders him unable to prosecutor this case
fairly; or it is a false claim of injury and harassment. A hearing to address the exact
circumstances of these threats, to determine i f they exist at all, to establish that they are not
caused by Mr. Mickelson, and their impact on Mr. Cox's ability to remain fair, and on Mr.
Mickelson's right to a fair trial is essential.
Moreover, at an evidentiary hearing, counsel for Mr. Mickelson would present evidence
of Mr. Cox's hostility towards the defense including comments to his co-counsel made within
earshot of defense counsel that:
" I want to kill everyone in here. I want to cut their fucking throats. I'm just being
honest and i f any of them want to go outside we can do it right now."
Further, the defense would present evidence that in response to provision of discovery
concerning Mr. Mickelson's work history, he stated "whatever bitch." Counsel will present
evidence that when counsel urged Mr. Cox to have some sense of professionalism, Mr. Cox
responded:
are you fucking kidding me? Professionalism? After you assholes signed that
public pleading, a public record, and you are going to stand being professionalism
. . . fuck you, do you want to go outside right now?"
Mr. Mickelson sought a mistrial, and filed a motion to recuse Mr. Cox and his office, seeking
full discovery and evidentiary hearing, but his requests were denied.

When the issue was

contested in front of the court, Mr. Cox did not dispute that he asserted that he wanted to cold-

cock defense counsel and take the argument outside. Without pointing to anything inappropriate
in defense counsel's pleadings, the trial judge implied that both sides were to blame for the
misconduct and denied the defense request for the mistrial.
Mr. Mickelson requests expedited consideration of this writ application reviewing the
trial court's decision to deny his motion for mistrial and to recuse Mr. Cox without a hearing or
discovery, and a stay, because his rights to Due Process and a fair trial and reliable sentencing
hearing are at stake as he is on trial for his life.

vi

STATEMENT OF THE CASE

Eric Mickelson is being prosecuted for first-degree murder where the state is seeking the
death penalty. Voir dire commenced on October 19, 2015 and the state's guilt phase presentation
is underway.
Dale Cox has been lead prosecutor in this case since it was remanded by the Lousiana
Supreme Court for a new trial. Since April 24, 2015 he has also been the interim District
Attorney after the sudden death of elected District Attorney Charles Scott on April 22, 2015.
Over the last several months there has been extensive news coverage surrounding Mr.
Cox's outspoken views on the death penalty. Mr. Mickelson is in no way responsible for Mr.
Cox's public statements. This coverage was initially prompted by Dale Cox's public statements
concerning the exoneration of Glenn Ford. Mr. Cox has repeatedly spoken to the media
3

regarding his belief that the death penalty should be used more widely. This has resulted in
national coverage of Mr. Cox, and Caddo Parish. Since that time, there has been national and
local coverage quoting Mr. Cox, and he has participated in numerous interviews by local and
national media, including the Shreveport Times, The New York Times and New Yorker
Magazine, and CBS's 60 Minutes, the latter which aired just ten days before Mr. Mickelson's
trial began. Mr. Mickelson is not responsible for either the wrongful conviction of Mr. Ford, or
the public statements made by Mr. Cox.
In those interviews District Attorney Cox laid out his views revealing a strong personal
zeal for the death penalty that appears to be based on powerfully held ideological views about
religion, morality, and society's need for revenge. See Ex. 9. He has acknowledged that his
views are unrespresentative of the community he represents, and withdrew from the D.A.'s race
because of it. Yet he made clear that: "as long as I'm here, I'm going to continue to do the way I
want to do it."

On July 21, 2015 Mr. Mickelson filed a recusal motion Mr. Cox and his office,
questioning Mr. Cox's ability to pursue justice even handedly in Mr. Mickelson's case. Ex. 9.
That motion was denied. Ex. 11.

~ For a fuller treatment ofthe facts than time permits here, Mr. Mickelson refers the Court to his
prior Writ Application of October 22, 2105, attached as Ex. and his written recusal motions to
the trial court, attached as Ex.s 4, 7, 9.
Glenn Ford spent 30 years on death row, before being exonerated.
3

K S L A Staff, Caddo DA: No further indictments in Fire Station 8 scandal,

http://www.waffcom/story/29550807/caddo-da-no-further-indictments-in

WAFF-48, July 15, 2015, available

at

On the second day of voir dire, October 20, 2015, Mr. Cox asserted that he had been
receiving death threats in response to his views on the death penalty, and that he was sensitive
about the defamatory coverage. Following that, Mr. Mickelson renewed his recusal motion, and
sought discovery and an evidentiary hearing about the death threats, to determine the extent to
which they may be effecting his ability to remain impartial in this case, Ex. 7. That motion was
also denied. Ex. 12
However, as trial has continued, Mr. Mickelson's concerns have crystallized. Mr. Cox
blames counsel for Eric Mickelson for the threats against him and his family. His hostility
towards the defense has reached such a level that he has openly expressed his desire to cause Mr.
Mickelson's defense counsel serious physical harm.
During a recess on October 25, 2015, Mr. Cox responded inappropriately after defense
counsel attempted to show the prosecution evidence that Mr. Mickelson had a job prior to the
crime. The State had provided this evidence to the defense in discovery, and it rebutted
inaccurate argument and testimony Mr. Cox had presented to the jury. After responding with
numerous expletives, Mr. Cox then expressed his desire to do serious physical harm to members
of the defense team, and asked lead counsel for Mr. Mickelson i f he "wanted to take it outside."
When the issue was raised before the Court, Mr. Cox justified his behavior in terms of the
extreme pressure and stress he is under due to death threats that he and his family have received
in response to his views of the death penalty. Mr. Cox stated that he has moved his family to
safety and has enlisted security services from police for protection. Mr. Cox then revealed that he
holds Mr. Mickelson's defense team responsible for the death threats, citing defense
characaterizations of him in pleadings and demanded that they withdraw parts of their pleadings
from the record, implying this was necessary to ensure the safety of his family. This attribution
of blame to the defense is inappropraite; whatever media coverage concerning Mr. Cox is a result
of Mr. Cox's public statements. Mr. Mickelson is not responsible for the comments that Mr. Cox
made to the press, nor the widespread condemnation of those comments about which Mr. Cox
now complains. Mr. Cox expressed unwillingness to be civil unless defense counsel took steps
to remedy the harm he perceived that Mr. Mickelson's defense team were personally causing to
him and his family. Mr. Cox told the trial court:
5

Even i f there were anything in counsel's motions that were sanctionable, which counsel
strongly denies, the appropriate response is to sanction counsel, not to allow Mr. Cox to
intimidate the defense.
5

There are enough lunatics out ther who have already threatened to kill me, that
when the read pleadings in a - that three professional lawyers have signed that
call me unusually blood thirsty because, this is the reason Fm unusually blood
thirsty, that 1 advocate for the death penalty, which is a law in our State. And as
District Attorney, Fm required to enforce the law.
So because of that, Fve had to move my family, I've had to have several other
actions for protection of my own safety. So when these people stand up and say
I'm being unprofessional by soliciting false testimony that he had a work release
job, I lose it. And I admit to everything he said.
I did want him to go outside. I did want to cold cock him. I wanted to cold cock
all three of them because that's so outrageous that they could do the things they
do without regard for the consequences. I mean, they're not being threatened.
Their families aren't being threatened. They're not being protected by law
enforcement. I am. And part of the reason I am is for crazy lunatic crap like this
that goes into the public filings and then out on the internet everywhere.
So i f they would withdraw that comment from those pleadings, I would be happy
to stand mute and be as civil as anyone they've ever seen in their lives. But until
they do that, until they do that, they better be careful what they say. That's my
response.
Ex. 14. Defense counsel renewed their request to recuse Mr. Cox, based on his personal interest
in the cause. The trial court expressed empathy for Mr. Cox's position, referencing her issues
with the publicity about Glenn Ford's case. She then cautioned Mr. Cox against making
inappropriate comments, and denied the defense motion, over defense objection. Ex. 2.
On October 26, 2015, in light of these events, and the other evidence of Mr. Cox's
personal interests in a death sentence previously pled to the court, Mr. Mickelson filed a written
motion seeking recusal of Mr. Cox from further participation in the case, and also requested a
mistrial. Ex. 4. Mr. Mickelson again sought discovery concerning the death threats, as well as a
contradictory evidentiary hearing to explore what occurred during the recess and the extent to
which Mr. Cox's personal interests in the case undermine his ability to be fair. On October 27,
2015, the trial court denied the motion. Exs. 2, 3. The court did so without holding a
contradictory hearing, without allowing discovery or an evidentiary hearing, and refused to let
counsel argue the motion at all. The trial court noted that neither she nor the jurors had heard Mr.
Cox's comments about harming defense counsel, if they existed, and in any event, the allegations
were irrelevant to the issue of recusal. The court further noted that Mr. Cox's views on the death
penalty were irrelevant because a prior District Attomey made the decision to seek death. The
court noted that the appropriate method to address what occurred was a request for sanctions.
Defense counsel objected to the ruling, and proffered further evidence of the comments
Mr. Cox made. Kathryn Sheely proffered what she had heard:

That Mr. Cox made comments to his co-counsel made within earshot of defense counsel
that:
" I want to kill everyone in here. I want to cut their fucking throats. I'm just being
honest and i f any of them want to go outside we can do it right now."
That in response to Ms. Sheely discussing Eric's work history, Mr. Cox stated "whatever bitch."
That when lead defense counsel urged Mr. Cox to have some sense of professionalism, Mr. Cox
responded:
"Are you fucking kidding me? Professionalism? After you assholes signed that
punlic pleading, a public record, and you ar going to stand being professionalism .
. . fuck you, do you want to go outside right now?"
In addition, defense proffered the affidavits of two women who had been in the courtroom at the
relevant time, and confirmed Mr. Cox's use of profane language to the defense, and his request
to "take it outside". Exs. 12, 13.
Mr. Mickelson gave oral and then written notice of his intent to apply for writ of review
from the court's denial of his motions of October 25 and October 27, 2015, indicating intent to
file simultaneously in both this Court and the Louisiana Supreme Court. The trial court sent a
return date of October 28 2015 at 9:00 a.m. Ex. 3. The trial court also orally denied Mr.
Mickelson's request for a stay of the matter pending determination of the wits. Id. This timely
writ and request for expedited consideration, and a stay of proceedings. Mr. Mickelson is also
simultaenously filing an application for a writ and a stay of proceedings in the Louisiana Court
of Appeals for the Second Circuit.
SUMMARY OF ARGUMENT
Mr. Mickelson's rights to Due Process and a fair trial are being violated because he is
being prosecuted by a District attorney with strong personal animosity to his defense counsel, so
strong that he has openly expressed his desire to do Mr. Mickelson's defense counsel harm. Mr.
Cox is under extreme pressure, facing death threats to him and his family, and inappropriately
blames Mr. Micke'son's counsel for those threats. Following an outburst in the courtroom, in
which Mr. Cox expressed his desire to harm defense counsel, defense filed a motion to recuse the
D.A. and request for a mistrial. Counsel cited the pressures of the alleged death threats on Mr.
Cox, Mr. Cox's overt personal hostility to defense, and Mr. Cox's well documented strong views
on the death penalty which is unrepresentative of the community. Mr. Mickelson also sought an
evidentiary hearing and discovery. In light of the extreme nature of Mr. Cox's overt hostility, the

trial court erred in denying the motion for mistrial and recusal motion. The trial court erred in
discounting as irrelevant Mr. Mickelson's allegations of Mr. Cox's misconduct, and his strong
views on the death penalty. It further erred in denying the contradictory hearing mandated under
La. C.Cr.P. art. 681, and in denying the evidentiary hearing and discovery required by Due
Process.

ARGUMENT
I.

T H E T R I A L COURT E R R E D IN DENYING MR. MICKELSON'S MOTION

TO R E C U S E MR. C O X AND T H E CADDO PARISH DISTRICT
ATTORNEY'S O F F I C E FROM PROSECUTING THIS CASE
The trial court abused its discretion when denying Mr. Mickelson's motion to recuse Dale

Cox and his office.

A. THE LAW REQUIRING RECUSAL OF A DISTRICT ATTORNEY FOR PERSONAL
INTEREST
The Louisiana Code of Criminal Procedure provides, in relevant part that "A district
attorney shall be recused when he: (1) Has a personal interest in the cause . . . which is in
conflict with fair and impartial administration of justice." La.C.Cr.P. Art. 680(1).
As the Louisiana Supreme held in State v. King, this provision "is required by the
constitutional guarantee of the fair and impartial administration of justice", and was created to
protect a defendant's state and federal constitutional rights to due process, fair access to the
courts and "adequate remedy by due process of law and justice, administered without denial,
partiality, or unreasonable delay." State v. King, 06-2383, (La. 4/27/07); 956 So.2d 562, 563
(citing Plaquemines Parish Com'n Council v. Perez, 379 So.2d 1373, 1377-78 (La. 1980)); La.
Const. Art I 2, 22.
The Louisiana Supreme Court endorses a "wide application" of La.C.Cr.P. Art. 680(1),
and interprets it guided by professional and ethical rules. State v. Allen, 539 So.2d 1232, 1234
(La. 1989) (interpreting recusal statue expansively to comport with Louisiana Rules of
Professional Conduct).
Importantly, it requires an objective assessment of impartiality:
"[It] embodies a policy requiring a district attorney's recusal when the situation
presented raises questions as to whether the district attorney's ability to fairly and
impartially perform his duties has been impaired, even unconsciously and despite
his earnest assertions to the contrary"
King, 956 So.2d at 567 (emphasis added). Thus, the Court went on:

La.C.Cr.P. art. 680(1) does not envision a subjective determination as to whether

the district attorney would, in fact, be unfair. Rather it employs an objective
decision as to whether a reasonable person would believe the facts at issue
regarding the district attorney's personal interest in the cause would impair his
ability to act fairly and impartially in conducting defendant's prosecution."
Id.
The Louisiana Supreme Court has long held that a prosecutor must be recused where the
prosecutor's personal animosity towards the defense affects his ability to act fairly and
impartially in conducting the prosecution. See, e.g., State v. King, 06-2383 (La. 4/27/07), 956 So.
2d 562, 569 (requiring recusal where the prosecutor's personal animosity toward defendant
stemming from his belief that defendant started or spread a salacious rumor about him and a
member of his family was a factor in making certain prosecutorial decisions); State v. Snyder,
237 So.2d 392, 395 (1970) (recusing prosecutor where the district attorney supported defendant's
opponent in a political campaign and announced during the campaign his intention to prosecute
defendant for defamation for campaign-related remark); State v. Cox, 167 So.2d 352 (1964)
(where the defendant allegedly made statements defaming the prosecutor's character, requiring
the recusal of the prosecutor in the prosecution of a separate offense).
Ordinarily, the personal interest of a prosecuting attorney necessitates disqualification
only of the individual prosecutor. However, because Mr. Cox is the Interim District Attorney, the
entire office's recusation is implicated. La. C.Cr.P. Art. 682.

Mr. Cox should also be recused in his capacity as prosecuting attorney. The requirements
for disqualification of an assistant district attorney are less than that for recusal of the District
Attorney, and are not necessarily restricted to the statutory grounds to recuse a district attorney
under La. C.Cr.P. art. 680. See State v. Bourque, 622 So.2d 198,217 (La. 1993).
The district court erred in failing to properly apply the law by failing to recuse Mr. Cox in
either capacity based upon the factual showing made.
B. INTERIM DISTRICT ATTORNEY COX'S PERSONAL INTERESTS IN THE CAUSE
CONFLICT WITH THE FAIR AND IMPARTIAL ADMINISTRATION OF JUSTICE AND
THE DISTRICT COURT ERRED IN FAILING TO RECUSE HIM
Mr. Mickelson bears the burden of showing by a preponderance of evidence that the
district attorney has a personal interest in conflict with fair and impartial administration of

La.C.Cr.P. art. 682 provides: "the trial judge shall either appoint an attorney at law, who has the qualifications of a
district attorney and is not an assistant to the recused district attorney, to act in the place of the district attorney."
La.C.Cr.P Art. 682 (emphasis added).

justice. State v. Bourque, 622 So.2d 198, 216-217 (La. 1993) overruled on other grounds by
State v. Comeaux, 93-2729 (La. 7/1/97), 699 So.2d 16; State v. Edwards, 420 So.2d 663, 673
(La. 2982), La. C.Cr.P. Art. 680. The trial court erred in find that Mr. Mickelson did not meet
this burden.
Mr. Cox has displayed overt hostility towards Mr. Mickelson's defense counsel, holding
them personally responsible for alleged death threats against him and his family. Based upon the
representations of Mr. Cox to the trial court the alleged death threats are serious enough for him
to have moved his family to safety and obtain ongoing protection from the police department. It
is difficult to imagine something more likely impact someone than death threats made to them
and their family.
The death threats are clearly weighing heavily on Mr. Cox's his mind. They are
demonstrably impacting his ability to remain fair in this case. His attribution of blame to the
defense is unfounded. Whatever media coverage concerning Mr. Cox has circulated, it is wholly
unrelated to any motions filed by the defense. Neither Mr. Mickelson nor his counsel are
responsible for the comments that Mr. Cox made to the press, nor for the the widespread
condemnation of those comments of which Mr. Cox complains. Mr. Cox is unable to contain his
hostility towards the defense in this case, and has openly made comments in the courtroom, both
on and off the record, that he wishes to do serious physical harm to Mr. Mickelson's counsel.
Again, it is difficult to think of a more overt demonsration of a prosecutor's ability to
evenhandledly prosecute a case, than the making of physical threats to a defendant's lawyers.
While the allegations of death threats are a matter of serious concern, so is Mr Cox's
inappropriate transferrence of his fears and anger towards Mr. Mickelson's defense, at the
sacrifice of Mr. Mickelson's rights.
Mr. Cox could not be clearer about the source and nature of his personal animosity
towards the defense:
I did want him to go outside. I did want to cold cock him. I wanted to cold cock
all three of them because that's so outrageous that they could do the things they
do without regard for the consequences. I mean, they're not being threatened.
Their families aren't being threatened. They're not being protected by law
enforcement. I am. And part of the reason I am is for crazy lunatic crap like this
that goes into the public filings and then out on the internet everywhere.
So if they would withdraw that comment from those pleadings, I would be happy
to stand mute and be as civil as anyone they've ever seen in their lives. But until
they do that, until they do that, they better be careful what they say. That's my
response.

Ex. 14.
As the Louisiana Supreme Court held when reversing a trial court's denial of a motion to
recuse in Snyder 237 So.2d at 395, ". . . where such deep-seated hatred has once evinced itself,
the district attorney might, even though unconsciously, have impaired his power to conduct
relator's trial fairly and impartially." 237 So.2d 392, 395. The court's finding that Mr. Cox's
comments to defense counsel were irrelevant, was clearly erroneous; it was central to the issue
before the court, and the court discounted that critical evidence.
Added to this are the concerns Mr. Mickelson raised in his prior recusal motions and
prior Writ Application, about Mr. Cox's strong views about the death penalty, and demonstrated
personal interest in vindicating those views. His desire to succeed in this capital prosecution can
only be enhanced in face of potential concerns about his own job security, as a new District
Attorney will soon be elected.
The trial court's holding that Mr. Cox's views on the death penalty were irrelevant
because he did not make the initial decision to pursue death clearly erroneous too because
District Attorneys must make myriad decisions regarding a case beyond the initial decision. See
King, 056 So.2d at 569-70 (rejecting argument that recusal should be denied because the grounds
after the prosecution was instituted because "prosecutorial decision making does not end with the
indictment" and includes decisions about "whether to dismiss the chartes, whether to offer a plea
bargain, what any plea bargain will entail, and how the trial will be conducted.")
Even i f Mr. Cox's prosecutorial judgment is not actually affected, his recusal is proper
because an objective, reasonable person would conclude that he has a personal interest that
impairs his ability to act fairly and impartially in conducting the case. King, 956 So.2d at 567.
The trial court abused its discretion when it denied Mr. Mickelson's request to recuse Mr.
Cox. In doing so the trial court violated Mr. Mickelson's rights under the recusal statute, as well
as his rights to Due Process and fair access to the courts, under the Fourteenth Amendment to the
United States Constitution, and article 1 2, 22 of the Louisiana Constitution. See State v. King,
06-2383 (La. 4/27/07), 956 So. 2d 562, 569 (requiring recusal where the prosecutor's personal
animosity toward defendant stemming from his belief that defendant started or spread a salacious
rumor about him and a member of his family was a factor in making certain prosecutorial
decisions); State v. Snyder, 237 So.2d 392, 395 (1970) (recusing prosecutor where the district
attorney supported defendant's opponent in a political campaign and announced during the

campaign his intention to prosecute defendant for defamation for campaign-related remark);
State v. Cox, 167 So.2d 352 (1964)

II.

T H E T R I A L COURT E R R E D IN DENYING MR. MICKELSON'S REQUEST

FOR AN EVIDENTIARY HEARING
The trial court abused its discretion by denying Mr. Mickelson's request for discovery

and an evidentiary hearing and discovery and for denying his motion without any kind of
contradictory hearing at ail. The Code of Criminal procedures makes absolutely clear that a
motion to recuse the District Attorney "shall be tried in a contardictory hearing." La. C.Cr.P. art.
682. In this case, discovery and the taking of evidence was also essential.
The right to the opportunity to be heard is a basic requirement of Due Process under both
the Federal and State Constitutions. U.S. Const. Amend. XIV; La. Const, art 1 2. Mr. Mickelson
bore the burden of proving the merits of his recusal motion by a preponderance of the evidence.
And he pled claims, supported with detailed facts and evidence, which i f proven would have
required recusation. Due Process required that he be provided the opportunity to do so through
the presentation of evidence after full discovery on the relevant issues. See State v. Marcotte, 229
La. 539, 546 (La. 1956) (trial judge improperly improperly refused to hear evidence on recusal
motion where allegations were sufficient, i f sustained by preponderating evidence, to require
recusation).
Judicial determinations must be based on evidence presented to it. See e.g. In re Best, 719
So. 2d 432 (La. 1998); In re Daniels, 340 So. 2d 301 (La. 1976) (giving appearance that result
depended upon a coin toss violated judicial code because it could never comport with the process
due.) Where courts make decisions without reviewing the evidence, their decisions appear
arbitrary or capricious.
The need for discovery and taking of evidnence was particularly acute in relation to the
District Attorney's receipt of death threats. In the judicial recusal context, the caselaw makes
very clear that the nature of the threats and the recipients response to the threats are key to
determining the extent to which they undermine the ability of the receipient to remain impartial.
See e.g. United States v. Hairston, 38 Fed. Appx. 884, 886 (4th Cir. 2002) (upholding denial of
recusal motion where there was no evidence that the judge took death threats seriously)
(emphasis added); United States v. Greenspan, 26 FJd 1001, 1006 (10th Cir. 1994) (reversing
armed robbery conviction because judge refused to recuse himself despite learning of death

threats against him involving the defendant, which were being investigated by the FBI)
(emphasis added). Mr. Mickelson has no way of ascertaining this information other than through
an evidentiary hearing at which he can question Mr. Cox under oath, and after discovery of all
records relating to the death threats and any response to them.
Moreover, only with an evidentiary hearing can Mr. Mickelson properly explore the
events of yesterday, and Mr. Cox's intimidating comments towards the defense. Indeed the court
expressed uncertainty about whether defense allegations were true. It was error to deny a
hearing, without determining this key factual question. Mr. Mickelson must be able to fully
explored the extent to which the death threats, as well as his extreme views on the death penalty,
the public scrutiny he is under and any interests he has in obtaining a death sentence to ensure
future employment, impact his pursuit of the death penalty against Mr. Mickelson and
prosecution in this case. See e.g. State v. King, (La.4/27/ 2007), 956 So. 2d 562, 568 (on writs,
affirming the appellate court reversal of the trial courts denial of a motion to recuse the District
Attorney based in part upon the District Attorney's testimony at evidentiary hearing concerning
the impact of his personal feelings on his actions in the case); State v. Snyder, 256 La. 601, 607
(La. 1970) (grant writ and reversing trial court denial of motion to recuse District Attorney after
evidentiary hearing at which the District Attorney testified concerning his personal feelings and
animosity towards the defendant).
The court erred as a matter of law in denying Mr. Mickelson's motion without a
contradictory hearing, and abused its discretion in denying the motion without discovery and a
full evidentiary hearing.
III.

T H E T R I A L COURT E R R E D IN DENYING MR. MICKELSON'S MOTION

FOR MISTRIAL
The trial court also erred in denying defense counsel's request for a mistrial in light of

Mr. Cox's "prejudicial conduct" demonstrates it is "impossible for the defendant to obtain a fair
trial." La. C.Cr.P. art. 775. Not only is Mr. Cox unable to prosecute the case with impartiality,
which itself requires a mistrial, but his intimidating behaviors have created such a hostile
atmosphere toward the defense, that it is undermining Mr. Mickelson's right to due process, to
present a defense and the effective assistance of counsel, such that a mistrial must be declared.
La. C.Cr.P. art. 775.

10

CONCLUSION AND PRAYER FOR R E L I E F

The decision of the trial court denying Mr. Mickelson's motion to recuse Dale Cox and
his office from the proscution of this case must be reversed. This Court must either order a
mistrial, order the recusal of Mr. Cox and his office, and order the appointment of a neutral
prosecuting agency pursuant to La. C.Cr.P art 682. Or it must stay the trial and order an
evidentiary hearing and discovery to further explore the death threats made to Mr. Cox, the
inappropriate comments and behaviors of Mr. Cox, and Mr. Mickelson's concerns about Mr.
Cox's ability to prosecute his case in a fair and uneven handed manner.
Respec^HyiManHted,

D A Y W P R I C E #08^33111

MymiQ.E. G U A D A M U D #20458
K A T H R Y N S H E E L Y #30721
Baton Rouge Capital Conflict Office
525 Florida Street, Suite 310
Baton Rouge, LA 70801
Telephone: (225) 338-0235
Fax: (225) 338-1948
Email: igvidfgteco,Qrg
Counsel for Eric Mickelson

11

VERIFICATION AND C E R T I F I C A T E OF S E R V I C E
I do hereby certify that the allegations contained in this writ application are true and correct to
best of my knowledge and that a copy of the foregoing writ application has been served on the
District Attorney for the Parish of Caddo, the Honorable Katherine Dorroh, and the Second
Circuit Court of Appeal by United States Postal Service, fax, email, and/or by hand on this date.
Shreveport, Louisiana, this ^ 3 d a y of

Vthsb&T

12

, 2015.

(T-5)
S T A T E O F LOUISIANA

NUMBER: 262,256; S E C T I O N I
1 JUDICIAL DISTRICT COURT
st

VERSUS
P A R I S H O F CADDO
E R I C MICKELSON

S T A T E O F LOUISIANA

MOTION FOR MISTRIAL, T O RECUSE INTERIM DISTRICT A T T O R N E Y

D A L E C O X AND F O R AN E V I D E N T I A R Y H E A R I N G ABOUT A L L E G E D
D E A T H T H R E A T S R E C E I V E D E Y MR. C O X AND HIS F A M I L Y AND T H E
T H R E A T S O F PHYSICAL HARM MR. C O X HAS M A D E
T O D E F E N S E C O U N S E L DURING T R I A L
Now comes Defendant, ERIC MICKELSON, by counsel, and moves this Court,
pursuant to the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, Article I , Sections 2, 3, 5, 13, 14, 16, 17, 19, 20, 22, 24 ofthe Louisiana
Constitution, Articles 680, 680 and 682 of the Louisiana Code of Criminal Procedure as
well as other applicable law set forth below, to declare a mistrial, to disqualify Interim
District Attorney Dale Cox and his office from the prosecution of this case, and for a
contradictory evidentiary hearing of this motion, in support of his motion counsel states
as follows:
1)

Mr. Mickelson's capital trial for first degree murder began on October 19,

2015 and is in progress. The State, seeks the death penalty.

2)

Prior to this date, Mr. Mickelson has filed two motions to recuse interim

district attorney Dale Cox based upon (a) Mr. Cox's outspoken and ideologically based
zeal for the death penalty, (b) the effect of the strong public reaction to his outspoken
views on his ability to prosecute this capital case in a fair and even handed manner, and
(c) the fact that he is receiving death threats because of those views. He renewed those
motions yesterday. Mr. Mickelson now seeks a mistrial and reurges recusal of Mr. Cox in
light of concerning events yesterday culminating in Mr. Cox expressing desire to cause
defense counsel serious bodily harm, and which made clear more than ever that Mr. Cox
is unable to prosecute this case with the fairness required.
3)

During a recess Mr. Cox responded inappropriately following defense

counsel's efforts to show the prosecution evidence of Mr. Mickelson's work history
which the State had provided in discovery, and which rebutted the inaccurate argument

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and testimony Mr. Cox had presented to the jury. After responding with numerous
expletives, Mr. Cox expressed desire to do serious physical harm to members of the
defense team, and asked lead counsel for Mr. Mickelson if he "wanted to take it outside."
4)

When the issue was raised to the Court Mr, Cox justified Ms behavior in

terms of the extreme pressure and stress he is trader due to death threats that he and his
family have received in response to his views ofthe death penalty. Mr. Cox made clear
that he blames Mr. Mickelson's defense team for the death threats because of their
pleadings seeking his recusal and a change of venue and demanded that they withdraw
parts of their pleadings from the record. His attribution of blame to the defense is despite
the fact that hostile and inflammatory media coverage concerning Mr. Cox has been
circulating for months and is wholly unrelated to any motions filed by the defense. He
expressed unwillingness to be civil unless defense counsel took steps to remedy the harm
he perceived that Mr. Mickelson's defense team were personally causing to Mm and his
family. Defense counsel renewed their earlier request to recuse Mr. Cox, based on his
1

personal interest in the cause, but. that request was denied.

5)

Mr. Mickelson hereby renews that request once more, incorporating the

facts and evidence presented in support of all three prior requests, and further seeks a
mistrial. It is clear that the death threats Mr. Cox has described, and other pressures he is
under are clouding his judgment and resulting in his prejudicial behaviors towards Mr.
Mickelson and his defense. Yesterday's outburst leaves no doubt that Mr. Cox is unable
to prosecute this capital case in a fair and even handed manner. He has a "personal
interest in the cause which is in conflict with fair and impartial administration, ofjustice,"
La. C.Cr.P. A r t 680(1), and which undermines Mr. Mickelson's constitutional rights to
Due Process and a fair trial. The prejudice to Mr. Mickelson is already too great, and the
only sufficient remedy at this point is to declare a mistrial, and proceed with further
prosecution after appointment of a different prosecutor.
6)

Mr. Mickelson hereby incorporates the contents of the two prior recusal

motions and the change of venue motion in M l , and reurges the recusal of Mr. Cox and
his office in light of Mr. Cox's attempts to mtirriidate defense counsel as they defend Mr.

Even if there were anything in counsel's motions that were sanctionable, which counsel
strongly denies, the appropriate response is to sanction counsel, not to allow Mr. Cox to
try to Intimidate the defense.
1

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Mickelson for his life. He further seeks a mistrial. La. C.Cr.P. art. 775.
7)

As required by La. C. Cr, P. Art. 681, this motion is filed in writing and,

subject to DA Cox recusing himself, must be tried in a contradictory hearing. I f a ground

for recusal is established by a preponderance of the evidence the presiding judge must
recuse D A Cox. La. C, Cr. P. Art. 6S1; State v. Snyder, 256 La. 601, 607 ( L a . 1970).
8)

The Court "must err on the side of recusal to promote the fair and

impartial administration of justice" Stare v. King,, 956 So.2d at 570, in this capital case.
The Louisiana Code of Criminal Procedure provides explicitly for the recusal of a district
attorney where he has a personal interest in the cause . . . which is in conflict with fair
and impartial administration of justice." La.C.Cr.P. Art. 680(1). The Louisiana Supreme
Court has endorsed a "wide application" of La.C.Cr.P. art. 680(1), interpreting it broadly
guided by applicable professional and ethical rules. Slate v. Allen, 539 So.2d 1232, 1234
(La. I9S9) (interpreting recusal statue expansively to comport with Louisiana Rules of
Professional Conduct). It requires an objective assessment of impartiality:
"pt] embodies a policy requiring a district attorney's recusal when the
situation presented raises questions as to whether the district attorney's
ability to fairly and impartially perform his duties has been impaired, even
unconsciously and despite his earnest assertions to the contrary.''''
State v. King, 06-2383, (La. 4/27/07); 956 So.2d 562, 567 (emphasis added). Thus, the
Court went on:
La.C.Cr.P. art. 680(1) does not envision a subjective determination as to
whether the district attorney would, in fact, be unfair. Rather it employs an
objective decision as to whether a reasonable person would believe the
facts at issue regarding the district attorney's personal interest in the cause
would impair his ability to act fairly and impartially in conducting
defendant's prosecution."
Id.
9)

Mr. Mickelson meets the required burden, and respectfully seeks

recusal of Mr. Cox and his office.

10)

A mistrial is also required resulting from Mr. Cox s "prejudicial conduct"

s

which has made "impossible for the defendant to obtain a fair trial." La. C.Cr.P. art 775.
Not only is Mr. Cox unable to prosecute the case with impartiality, which itself requires a
mistrial, but his intimidating behaviors- have created such a hostile atmosphere toward the
defense, that it is undermining Mr. Mickelson's right to due process, to present a defense
and the effective assistance of counsel, such that a mistrial must be declared. La. C.Cr.P.
3

S 2 0 / 9 0 0121

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art. 775.

11) A defendant's right to seek recusal is protected by the requirement that a

district attomey provide discovery of any basis for recusal. State v, Valdes, 547 So, 2d 9
(La.App. 4 Cir. 1989) ("ITJhe district attorney's duty to perform his obligations
impartially require that he make a timely disclosure to defendants of his conflicting
interests or recusal grounds and that its discovery not be a fortuitous event."). While
there is already ample evidence mandating a recusal and a mistrial in this case, Mr.
Mickelson further seeks an evidentiary hearing to allow him to develop his claims for
recusal and mistrial.
12) The defense requests discovery and an evidentiary hearing in this case to
prove the need for mistrial and recusal through the calling of witnesses and presentation
of other evidence. La. C.Cr.P. art. 681 mandates a contradictory hearing in this situation
unless D A Cox chooses to recuse himself. In particular, he is entitled to full discovery
concerning the alleged death threats, the measure that have been taken to address them
(he indicated the police are providing security and that his family have been moved), and
the opportunity to present evidence to establish the precise facts of the Mr. Cox's
outburst and threats to defense counsel yesterday, and the impact this is having on the
fairness of Mr. Mickelson's trial.

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CONCLUSION
WHEREFORE, for the foregoing reasons and any others that may appear to this
Honorabie Court after a hearing, Mr. Mickelson respectfully requests that the Court refer
this matter for a contradictory evidentiary hearing before an independent judge, and
following that hearing that the Court recuse Interim District Attorney, Dale Cox, and the
Caddo Parish District Attorney's Office, and declare a mistrial.

RESPECTFULLY SUBMITTED:

DAVID PRICE #08733

KATHRYN S H E E L Y #30721
MARIO GUADAMUD #20458
Baton Rouge Capital Conflict Office
525 Florida Street, Suite 310
Baton Rouge, L A 70801
Telephone:
(225) 338-0235
Fax:
(225) 33S-1948
e-mail:
karhryn@brcco.org

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CERTIFICATE OF SERVICE
I certify that I have this day served a copy of the foregoing motion on counsel for
the state, Bill Edwards, Assistant District Attorney, Caddo Parish District Attorney's
Office, 501 Texas Street, Shreveport, L A 71101-5400, by fesiLciassjaiail Hand-delivery,

Shreveport, Louisiana, this 26th day of October, 2015.

0.iP
-Kafeyn Shecly

SZO/60012

6fr8f 90S 8 l

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:

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N U M B E R : 262,256; S E C T I O N 4

STATE OF LOUISL
Cl Z 7 2015

DISTRICT COURT

VERSUS
^ ^ A R I S H OF CADDO
S T A T E O F LOUISIANA

ERIC MICKELSON

ORDER

Considering the foregoing:

I T I S H E R E B Y O R D E R E D that Dale Cox and the Caddo Parish District
Attorney's Office be recused from this case, that a mistrial is declared, and that the case
be continued pending the appointment of a neutral prosecuting agency;
IN T H E A L T E R N A T I V E ,
I T I S H E R E B Y O R D E R E D that this motion be referred for hearing before a
randomly allotted judge,

Shreveport, Louisiana, this

day of

> 2015,

Defied
JUDGE, 1 JUDICIAL DISTRICT COURT
s t

ENDORSED FILED
B. WASHINGTON, Deputy Clerk

7
30

THE FIRST JUDICIAL

DISTRICT COURT

IN AND FOR THE PARISH OF CADDO

STATE OF LOUISIANA

STATE OF LOUISIANA
VERSUS
ERIC

CRIMINAL CASE NO:

262,256

MICKELSON

TRANSCRIPT OF THE PROCEEDINGS HAD i n

t h e h e a r i n g o f t h e a b o v e - s t y l e d and numbered c a u s e b e f o r e
HONOR

K a t h e r i n e C. Dorroh,

Judge o f t h e F i r s t J u d i c i a l

HER

District

C o u r t , i n a n d f o r Caddo P a r i s h , a t S h r e v e p o r t , L o u i s i a n a , on t h e
2 5 t h day o f October,

2015, A.D.

APPEARANCES:

Counsel f o r t h e P l a i n t i f f :
D a l e G. Cox
W i l l i a m Edwards

C o u n s e l f o r t h e Defendant:
Kathryn Sheely
Mario Guadamud
David P r i c e

EXCERPT OF

PROCEEDINGS

Reportedly:
J e n n i f e r ahiLller
Off i c i - a r Court

Reporter

6 ? s V -;909

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P R O C E E D I N G S
**** *
THE COURT:
to find?

A l l r i g h t , what were we

B a c k on t h e r e c o r d

of L o u i s i a n a

versus

MR. EDWARDS:

i n 262,256,

able
State

Mickelson.
Your Honor, I have p r o v i d e d

Defense C o u n s e l w i t h t h e B a i l c o r e p o r t s i n
question.

I do t h i n k t h e r e s
1

t h a t w o u l d be i n a d m i s s i b l e
jury.

m a t t e r s on h e r e

i n f r o n t of t h e

T h e y a r e c o r r e c t , he was employed a t

B a i l Coach

(sic),

I b e l i e v e i s a work r e l e a s e

program, from March o f '07 t o J u l y 6 t h o f ' 0 7 .

The r e a s o n f o r h i s t e r m i n a t i o n
i n a d m i s s i b l e i n f r o n t of t h i s

would be
jury.

T h a t was

t h e t i m e f r a m e on t h e work.
THE COURT:

So t e c h n i c a l l y , on J u l y 11,

2007, he was n o t employed?

MR. EDWARDS:
Honor.
of

I can't

say that,

Your

T h a t h i s l a s t day o f work was J u l y 6 t h

'07, b u t h i s a r r e s t was t h e r e a s o n f o r h i s

termination.
MS. SHEELY:
in E r i c Glass's

And, Your Honor, I d i d f i n d

(sic) interview,

which was

done by Don A s h l e y , on Page 15 o f t h e

t r a n s c r i p t t h a t was p r o v i d e d by t h e S t a t e ,
Earl Glass

i s the direct supervisor

at Bailco.

He i s a s k e d , "And t h e n when i t g o t t i m e
f o r E r i c t o be r e l e a s e d ,

d i d you a l l d i s c u s s

w h e t h e r t o keep h i m on a s an employee, o r how

d i d t h a t work.
Answer:

Y e s , s i r , we d i s c u s s e d i t .

W e l l , I made t h a t

decision.

620/8100

6S85 909 8TS X ^ J

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Question:
Answer:

Okay.
This

t h e d e c i s i o n who

i s t h e n e x t page.

I mad.e

I want t o keep, o r them,

l e t them go, and he was s u c h a good hand

I wanted t o keep them

or
that

keep him."

So, a t t h e t i m e o f t h e o f f e n s e ,

Eric

M i c k e l s o n was w o r k i n g , and he was n o t on w o r k

release.

Re had t a k e n

everyone

j u s t so t h a t

he had t a k e n some t i m e o f f b e c a u s e

h i s aunt had j u s t
there i s a zero
been t h e r e .

died,

and s o t h a t Monday

amount o f t i m e t h a t he had

But I b e l i e v e he'd a c t u a l l y b e e n

a t work t h e F r i d a y b e f o r e .

I might be

m i s t a k e n on t h a t , b u t he h a d worked.
not a work r e l e a s e program a t t h a t
THE COURT:

time.

So he was employed by

company, g e t t i n g

THE COURT:

this

a paycheck?

MS. SHEELY:

h e r now.

I t was

Y e s , Your Honor.
A l l right, just

f i x i t with

I mean, do you want them t o f i x i t ,

o r do you want t o f i x i t ?
MS. SHEELY:

I believe there's

i s s u e t h a t happened.
c o m f o r t a b l e i f Mr,
MR. P R I C E :
on t h e r e c o r d ,

another;

I would f e e l more

P r i c e addressed i t .

Judge, I j u s t wanted t o p u t
and I'm k i n d o f r e l u c t a n t t o

t a l k a b o u t i t , b u t t h e r e was an i n c i d e n t
occurred while

that

you were o u t o f t h e c o u r t r o o m .

We were i n t h e c o u r t room, t h e j u r y was i n -the

j u r y room.

The r e c o r d s

were r e t u r n e d

i n here.

T h e r e was some d i s c u s s i o n between t h e

p r o s e c u t o r s over t h a t .

I t h i n k Mr. Cox

was

6Z0/6T01J3

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u p s e t o v e r t h e records,, s t a r t e d making some

comments t o Ms. S h e e l y ,
comments-

I asked

about t h i n g s -

i n c l u d i n g some

profane

i f we c o u l d be p r o f e s s i o n a l

He t u r n e d

t o me and s t a r t e d

c u r s i n g a t me, e v e n t u a l l y a s k e d

i f I wanted t o

go o u t s i d e , and p r e s u m a b l y , t o f i g h t ,
k i n d o f went doT-mhill

and i t

even f u r t h e r front t h e r e -

I don't know what t o s a y about t h a t

other

t h a n I am c o n c e r n e d b e c a u s e Mr. Cox's comments

w e r e l o u d enough t h a t t h e y c o u l d h a v e b e e n
h e a r d , I t h i n k , i n t h e j u r y room.
loud.

He was

And I d o n ' t e x a c t l y know what t o do

a b o u t i t o t h e r t h a n t o a s k i f we c a n m a i n t a i n
some measure o f c i v i l i t y
MR. COX:
THE COURT:
MR. COX:

here,

Do you want me t o r e s p o n d ?
Please.
I would v e r y much l i k e t o
\

m a i n t a i n some l e v e l o f c i v i l i t y .

I would have

l i k e d t h a t from t h e v e r y b e g i n n i n g .

I would

have p r e f e r r e d i f these t h r e e lawyers had n o t

s i g n e d a p u b l i c p l e a d i n g c a l l i n g me

unusually

b l o o d t h i r s t y b e c a u s e I was d o i n g my j o b i n
advocating f o r a death p e n a l t y t h a t I thought
was c a l l e d

f o r by t h e law.

Now s e e , I u n d e r s t a n d
unprofessional.

t h a t ' s not

So I would v e r y much l i k e

them t o w i t h d r a w t h a t comment from t h a t

pleading.

And i f t h e y would w i t h d r a w t h a t

comment from t h a t p l e a d i n g ,
t o s t a n d mute t h e r e s t

I w o u l d be happy

of t h i s t r i a l

and n e v e r

engage any o f t h e s e t h r e e p e o p l e i n a n y k i n d
o f communication, n o t o n l y f o r t h i s t r i a l , b u t

&

essfc

909

sit ms.

%xm

SM

ST0Z/AZ/0I

forever i n the

future.

But you

do t h i n g s l i k e t h a t , and
suggest t h a t the other
because I didn't

see

t h e n you

when

you

t r y to

side i s unprofessional

t h i n k a work r e l e a s e was

r e a l job, t h a t concerns

me.

And

i f I hadn't

r e c e i v e d d e a t h t h r e a t s , i t wouldn't h a v e
c o n c e r n e d me

a s much.

put everywhere w i t h
there are

s o c i a l media t o d a y ,

MR. COX:

and

T e l l me

about i t .

T h e r e a r e enough l u n a t i c s

have a l r e a d y threatened

t h a t when t h e y

read pleadings

three p r o f e s s i o n a l lawyers
c a l l me

out

to k i l l

in a

i s the reason

I'm

have s i g n e d

unusually blood

that

A t t o r n e y , I'm

State.

And

as

So b e c a u s e o f t h a t , I ' v e had

own

t h e s e p e o p l e s t a n d up
u n p r o f e s s i o n a l by

my

actions

So when

and s a y I'm

being

soliciting false

testimony

a work r e l e a s e j o b , I l o s e i t .

" I d i d want him

t o c o l d c o c k him.

said.

t o go o u t s i d e .

c o u l d do

I d i d want

I wanted t o c o l d c o c k a l l

t h r e e of tham b e c a u s e t h a t ' s so

outrageous

t h e t h i n g s t h e y do

regard f o r the consequences.

not being

law.

t o move

safety.

And I a d m i t t o e v e r y t h i n g he

t h a t they

the

t o have s e v e r a l o t h e r

f o r p r o t e c t i o n o f my

t h a t he had

which

District

r e q u i r e d to enforce

f a m i l y , I ' v e had

this

thirsty,

t h a t I advocate f o r the death p e n a l t y ,

i n our

me,

that

u n u s u a l l y blood t h i r s t y because,

i s a law

get

THE COURT:

t h e r e who

But p u b l i c f i l i n g s

threatened-

without

I mean, t h e y ' r e

Their families aren't

5
6Z0/TZ

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8T

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ST0Z/Z/0T

being threatened.

They're

by law e n f o r c e m e n t .
r e a s o n I am

not being

I am.

And

protected

p a r t of the

i s for crazy l u n a t i c crap

like

t h i s t h a t goes i n t o p u b l i c f i l i n g s and
out on t h e i n t e r n e t

then

everywhere.

So i f t h e y would w i t h d r a w t h a t comment
from t h o s e p l e a d i n g s ,

I would be happy t o

s t a n d mute and be a s c i v i l

a s anyone

ever seen i n t h e i r l i v e s .

But

they've

u n t i l they

do

t h a t , u n t i l t h e y do t h a t , t h e y b e t t e r be
c a r e f u l what t h e y s a y .
MR. P R I C E :

T h a t ' s my

response.

Judge, I t h i n k t h a t f o r c e s u s

t o renew our Motion t o R e c u s e Mr.

Cox,

he seems t o have a p e r s o n a l i n t e r e s t
case.

I don't v i e w t h a t
THE COURT:

lightly.

aggravated

You

w i t h something you

And

f r a n k l y , you

shouldn't

both

say aren't

Sometimes, i n my

lawyers a r e n ' t always

put

say the things

sometimes t h e t h i n g s t h a t y o u
professional.

has

no b a s i s f o r r e c u s a l

i n a p l e a d i n g , okay?
have p o i n t s .

in this

I don't b e l i e v e t h a t he

there i s s t i l l

because he's

because

opinion,

e x e r c i s i n g t h e type

of

candor I t h i n k t h a t t h e y s h o u l d e x e r c i s e i n a
courtroom, okay?

I t ' s p a r t of i t .

I t ' s part

o f what t h e p r a c t i c e o f law h a s become. I t ' s

unfortunate.

I don't p u t up w i t h i t .

tolerate i t .

I f you

i n t h i s proceeding,

had

I don't

s t a r t e d , a t any

time

c a l l i n g e a c h o t h e r names,

I would have s h u t i t down i n t e n s e c o n d s .

knows i t ,

and

I ' v e s h u t him down.

him down many t i m e s .

I'm

He

I've shut

not going

t o put

up

909 8T

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with t h i s
you.

n o n s e n s e from you, you, you, you, o r

I'm n o t .

o t h e r names.

We're n o t g o i n g t o c a l l
We're n o t g o i n g t o

going t o m a i n t a i n c i v i l i t y

each

we a r e

i n this

courtroom.

And t o t h e e x t e n t t h a t t h e j u r y
overheard,

I mean, I don't know.

But t h i s i s

s e r i o u s s t u f f , and I u n d e r s t a n d i t .

You're

a d v o c a t i n g your p o s i t i o n w i t h a l l of your
intensity,

and h e ' s a d v o c a t i n g h i s p o s i t i o n

w i t h a l l o f h i s i n t e n s i t y , and a l l o f t h e
p e r s o n a l i t y t h a t goes w i t h t h a t

from a l l o f

you, o k a y ?
So, I s t i l l

s e e no b a s i s f o r r e c u s a l

because he's aggravated with the three of you.

T h a t ' s n o t a b a s i s f o r a r e c u s a l under t h e
Code o f C r i m i n a l P r o c e d u r e .
And what happens w i t h t h e s t a t e m e n t i n
t h e p l e a d i n g , you know, I d o n ' t know.

I can't

make them w i t h d r a w a s t a t e m e n t i n a
pleading

MR, COX:

I u n d e r s t a n d t h a t . Your Honor.

THE COURT:

no more t h a n I c a n make

the people i n t h e Glenn Ford case withdraw t h e

t h i n g s t h a t have been s a i d about me, i t ' s j u s t
part o f the deal,
the i n t e r n e t ,

o r what's s a i d about me o n

I understand i t , okay

B u t , I'm n o t g o i n g t o p u t up w i t h
bickering.

I do.

this

And i f you c a n ' t h o l d y o u r t o n g u e ,

l e a v e t h e courtroom.

I mean, I don't want i t

g o i n g on i n f r o n t o f t h e s e p e o p l e .

I don't

want i t g o i n g on s o t h e j u r y c o u l d h e a r i t .
We've s p e n t s e v e n d a y s w o r k i n g on t h i s ,

S8fr 909

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n o t t o mention what I ' v e s p e n t

s i n c e June

t r y i n g t o get ready f o r t h i s t r i a l .
a r e n ' t g o i n g t o mess i t up,
MR. P R I C E :
will

So, we

okay?

I u n d e r s t a n d , Judge, a n d I

speak w i t h my p e o p l e and r e i n f o r c e what

y o u ' v e s a i d . . So we w i l l do our b e s t t o m e e t
your

standards.
MR. GUADAMUD:

f o r the

P l e a s e n o t e our

objection

record.

THE COURT:

Your o b j e c t i o n t o my r u l i n g

s a y i n g I don't t h i n k t h e Motion
MR. GUADAMUD:

Yes,

THE COURT:

t o Recuse

MR. GUADAMUD:
THE COURT:

Motion t o R e c u s e

Y e s , ma'am.

Okay, I j u s t want t h e

record

to be c l e a r .
MR. GUADAMUD:
THE COURT:

Thank you,

Judge.

A l l r i g h t , now, do you w a n t

me t o i n q u i r e i f t h e j u r y o v e r h e a r d
t h a t went on i n h e r e ,

anything

o r w i l l t h a t b r i n g more

attention to i t ?
MR. PRICE:
general question,
MS. SHEELY:

I f you c o u l d j u s t a s k

that

I t h i n k t h a t would s o l v e i t .
C o u l d I s u g g e s t has t h e

jury

been a b l e t o hear any o f the things t h a t h a v e

happened, j u s t s o t h a t we don't draw a t t e n t i o n
t o i t , when t h e y

go i n t o t h e room and we a r e

speaking?
THE COURT:

I don't t h i n k t h a t they

can,

but i t normally doesn't i n v o l v e screaming.

wasn't here,

s o I d o n ' t know.

MS. SHEELY:

I'm s u g g e s t i n g

that

general

6fr8fr 305 S T t S V a

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^question to the jury,

hear

i n s t e a d o f , d i d you j u s t

anything.
THE COURT:

So what do you p r o p o s e I s a y ?

MR. PRICE:

Have you h e a r d

t h a t ' s gone on i n t h e courtroom

anything
while

you're

b a c k i n t h e j u r y room.

And p e r h a p s

with

usual explanation, just

t h e r e a r e some t h i n g s

t h a t we have t o do i n h e r e w h i l e y o u ' r e

your

back

there.
THE COURT:

Okay.

I'm a l l r i g h t

with

that.
Wow, i t ' s 5:30. Can we p r o c e e d and
f i n i s h with t h i s
MR. COX:

witness

S t a t e i s ready.

THE COURT:

p r o f e s s i o n a l conduct
attorneys?

and m a i n t a i n t h e l e v e l o f
that i s r e q u i r e d of a l l

Yes?

MR, GUADAMUD:
MR, PRICE:

Y e s , ma'am.

We w i l l .

Judge, s h e ' s t h i n k i n g about a n hour f o r

cross.
THE COURT:

I'm a l l r i g h t w i t h

MR. PRICE:

I j u s t wanted t o a d v i s e y o u .

THE COURT:

Jenn, a r e you okay f o r

another

that.

hour?

THE COURT REPORTER:

THE COURT:

I'm good.

A l l right.

So, b e f o r e we

b r i n g Ms. A r t h u r i n , l e t ' s b r i n g t h e j u r y i n
and make s u r e t h a t t h e y have n o t o v e r h e a r d o u r
d i s c u s s i o n s , okay?
.

A l l right.

And a s I was s t a t i n g b e f o r e we h a d t h i s

d i s c u s s i o n , Mr. Cox i s present,- Mr. Edwards i s

ezo/sso

6t8& S09 8TS

XZ'-XX HQI

QXQZ/LZ/OX

p r e s e n t , Ms. S h e e l y i s p r e s e n t , Mr. Guadamud,

Mr. P r i c e ,

a n d Mr. M i c k e l s o n

plain clothes,

i s present i n

not restrained.

(Jury i n . )
THE COURT:

A l l right.

L a d i e s and

gentlemen, w e ' r e g o i n g t o resume w i t h o u r

testimony i n j u s t a minute.
comfortable?

Everybody

We're going t o go f o r about

a n o t h e r hour, f i n i s h w i t h t h i s w i t n e s s , and
t h e n you c a n go have d i n n e r .
where t h e y ' r e g o i n g

I don't know

t o t a k e you t o n i g h t , b u t

you c a n go h a v e d i n n e r .

They h a v e n ' t

l e t me

know.
JUROR NUMBER 13:

You s h o u l d make them

t e l l you.
THE COURT:

What?

ALTERNATE C. BURTON:

You s h o u l d make

them t e l l y o u .
THE COURT:

I s h o u l d , huh.

All right.

As you know, I e x c u s e

c e r t a i n times,

and I t o l d you about

during your v o i r d i r e .
leave a l o t .

that

And some o f you h a d t o

I f you were i n t h a t

some o f y o u h a d t o l e a v e a l o t .
S m i t h and Mr.

you a t

first

panel,

L o o k a t Mr.

Langley.

JUROR J . LANGLEY:
THE COURT:

I remember.

.All right.

And t h e r e a s o n i s

t h a t t h e r e i s j u s t c e r t a i n t h i n g s we have t o
h a n d l e o u t s i d e o f your p r e s e n c e
can't hear
close here,

anything.

so t h a t you

And b e c a u s e we're s o

I j u s t want t o make s u r e t h a t

even

when y o u a r e i n t h e j u r y room and we're

10

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STOZ/Z/OT

h a n d l i n g m a t t e r s on t h e r e c o r d ,

t h a t you a l l

can't hear us i n there.

THE JURY:

No, ma'am.

THE COURT:

All' right.

JUROR 0. EVANS:
THE COURT:

The j u r o r s a r e t o o l o u d .

Oh, t h e j u r o r s a r e t o o l o u d ?

JUROR M. McCLURE:
noise,

A l l right.

We're making t o o much

so w e ' r e n o t g o i n g t o h e a r .

THE COURT:
make s u r e .
to protect

A l l right.

So I j u s t want t o "

And i f we needed t o be more q u i e t ,

that,

I was g o i n g t o s u g g e s t

that

we do t h a t .
Okay.

A l l r i g h t , w e l l t h a n k you.

We'll

resume o u r t e s t i m o n y o f Ms. A r t h u r .
(Excerpt

concluded.)

i ^ ^ * i

11

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STATE OF LOUISIANA )
PARISH OF CADDO )

C E R T I F I C A T E

I,

Jennifer Sanmiller,

O f f i c i a l Court Reporter i n

and f o r t h e S t a t e o f L o u i s i a n a , employed a s an o f f i c i a l
r e p o r t e r by t h e F i r s t
Louisiana,

Judicial District

court

Court f o r t h e S t a t e of

a s t h e o f f i c e r b e f o r e whom t h i s t e s t i m o n y w a s t a k e n ,

do h e r e b y c e r t i f y t h a t t h i s t e s t i m o n y was r e p o r t e d by me i n t h e
d i g i t a l r e p o r t i n g method, was p r e p a r e d and t r a n s c r i b e d b y me o r
u n d e r my d i r e c t i o n and s u p e r v i s i o n , and i s a t r u e and c o r r e c t
t r a n s c r i p t t o t h e b e s t o f my a b i l i t y and u n d e r s t a n d i n g ; t h a t t h e
t r a n s c r i p t h a s been p r e p a r e d i n -compliance w i t h

transcript

format g u i d e l i n e s r e q u i r e d by s t a t u t e o r by r u l e s o f t h e board
o r b y t h e Supreme C o u r t o f L o u i s i a n a , a n d t h a t I am n o t r e l a t e d
t o c o u n s e l o r t o t h e p a r t i e s h e r e i n n o r am I o t h e r w i s e
i n t e r e s t e d i n t h e outcome o f t h i s

matter.

^ 3 # M c i a l Couft^jELeporter
F i r s t J u d i c i a l D i s t r i c t Court

12

zo/8zoi2

909 8T

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