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STATE OF LOUISIANA NUMBER: J-3868
IN THE INTEREST OF JUVENILE COURT
JESSE RAY BEARD LASALLE PARISH, LOUISIANA
MOTION TO RECUSE THE DISTRICT ATTORNEY
NOW INTO COURT, through undersigned counsel, comes JESSE RAY BEARD, a juvenile, who moves the Court as follows:
Jesse Ray Beard (Jesse Ray) has been charged with a delinquent act.
The District Attorney prosecuting the case is J. Reed Walters (“Walters”).
Walters has shown on numerous occasions that he is so prejudiced and harbors such personal bias against Jesse Ray and the other five African American youths now known as the Jena 6, that he is incapable of fairly and impartially performing his duties as the district attorney.
During the relevant time period, Walters also served as attorney for the LaSalle Parish School Board. In this capacity, Walters provided counsel to the School Board of a nature which created an irreparable conflict of interest with his duties as the district attorney, thereby impairing his ability to perform his duties as the district attorney fairly and impartially.
A district attorney must be recused when his bias, prejudice, or personal interest in a case impairs his ability to fairly and impartially perform his duties.
WHEREFORE, JESSE RAY BEARD PRAYS that after due proceedings, District Attorney J. Reed Walters be recused from this and all other matters involving Jesse Ray.
DAVID J. UTTER
Juvenile Justice Project of Louisiana
1600 Oretha Castle Haley Blvd.
New Orleans, LA 70113
Telephone: (504) 522-5437
Fax: (504) 522-5430
STATE OF LOUISIANA NUMBER: J-3868
IN THE INTEREST OF JUVENILE COURT
JESSE RAY BEARD LASALLE PARISH, LOUISIANA
MEMORANDUM IN SUPPORT OF
MOTION TO RECUSE THE DISTRICT ATTORNEY
JESSE RAY BEARD, by and through counsel, respectfully moves this Court to recuse District Attorney J. Reed Walters and his office from prosecuting this case. Jesse Ray Beard (“Jesse Ray”) submits this motion to recuse pursuant to Louisiana Code of Criminal Procedure Article 680, Article I Section 2 of the Louisiana Constitution (Due Process), Article I Section 3 of the Louisiana Constitution (Right to Individual Dignity), and the 5th and the 14th Amendments to the United States Constitution. See La. C. Cr. P. art. 680; La. const. art. I §2; La. const. art. I §3; U.S. const. amend. V; U.S. const. amend. XIV.
As grounds, Jesse Ray states the following:
On August 31, 2006 African-American students arrived at school to find “two hangman’s nooses hanging from the tree that sits in the center of the Jena High School square tree . . . where most students assemble during recess and lunch breaks.” “Incident More Hype than Reality”, Jena Times, p. 1A (Sept. 13, 2006). Disregarding the 4,863 recorded lynchings over the past 125 years, almost all in the Deep South and almost all hangings of African-Americans, officials reported to the local media that “most of the `racial tensions’ were more media hype than reality.” “In reality, the nooses had nothing to do with racial bigotry, but rather an ignorant prank taken from the mini-series, `Lonesome Dove.’” Id. In spite of a recommendation by the school principal that the 3 noose hangers be expelled, the expulsion hearing committee of the LaSalle Parish School Board voted to suspend the students instead. Id. The attorney representing the school board (both in the noose-hangers’ cases and also with regard to the expulsions of six African-American students including Jesse Ray) was, and remains, District Attorney J. Reed Walters; the very person who refused to prosecute these white students but charged Jessie Ray with attempted murder for allegedly hitting a fellow student.
On December 4, 2006, after 3 months of racial tension at the school, including but not limited to: 1) protests and a sit-in by African-American students; 2) numerous fights between African-American and white youth that spilled off school grounds; 3) at least one day of the entire school being placed on “lockdown;”and 4) an arsonist’s fire that destroyed the main school building, Justin Barker (Justin), a white student, was injured in a battery, allegedly by six African-American students. Shortly after the incident, sheriff’s deputies arrested the young men, now known as the Jena 6, and charged them with aggravated second degree battery. Even though Justin was well enough to attend a school function hours later, Mr. Walters increased the charges against the Jena Six to attempted second degree murder, and conspiracy to commit attempted second degree murder, and transferred one of the young men – Mychal Bell – to adult court.
Since that fateful day when three white students placed hangman’s nooses on a tree in the center of the square at Jena High School, Mr. Walters has repeatedly demonstrated his bias and inability to fairly and impartially perform his duties as the prosecutor in the Jena 6 cases. As will be shown at a hearing on this motion, his personal bias in this case and conflict of interests as prosecutor and school board attorney make him unfit to proceed as prosecutor herein.
Our nation’s ugly history of lynching African-Americans and the symbol of the noose as a deadly threat to African Americans made the hanging of those nooses from the school yard tree an undeniable crime in the circumstances of this case. Mr. Walter’s manifest unwillingness to prosecute this crime is the clearest sign of his bias and his inability to fairly and impartially prosecute Jesse Ray. This impartiality is further highlighted when one compares the leniency with which Mr. Walters treated the white noose hangers juxtaposed against his treatment of the Jean Six. Finally, Mr. Walters’ behavior in this and other cases involving Jesse Ray show a willingness to abuse his power as the chief law enforcement officer in LaSalle Parish to secure convictions, disregarding his primary duty to justice.
I. The Law of Recusal
District attorneys are given broad power and discretion in prosecuting cases. However, the United States Constitution and the Louisiana Constitution require that prosecutors’ broad discretion and power is limited to ensure that prosecutors are always seeking justice and that every prosecution is conducted fairly and impartially. If a prosecutor cannot conduct a prosecution fairly and impartially, he must be recused.
Louisiana Code of Criminal Procedure Article 680(1) (“Article 680”) limits prosecutors’ power by providing that a district attorney shall be recused when he “[h]as a personal interest in the cause or grand jury proceeding which is in conflict with the fair and impartial administration of justice.” Article 680’s recusal provision is not only provided for but is required by constitutional guarantees of the fair and impartial administration of justice. Plaquemines Parish Comm’n Council v. Perez, 379 So.2d 1373, 1377 (La. 1980). Article 1 § 2 of the Louisiana Constitution provides that “no person shall be deprived of life, liberty, or property, except by due process of law.” The Louisiana Supreme Court has defined the essence of due process as “protection from arbitrary and unreasonable action.” Plaquemines, 379 So.2d at 1377. Furthermore, due process itself requires impartiality. See Id. Additionally, Article I Section 3 of the Louisiana Constitution commands that: “No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations.”
The Louisiana Supreme Court has interpreted Article 680 (1) to require courts to recuse a district attorney “when the situation presented raises questions as to whether the district attorney’s ability to fairly and impartially perform his duties has been impaired.” State v. King, 956 So.2d 562, 567 (La. 2007). Recusal is required even where the district attorney is not aware of his partiality and despite his earnest assertions that he is impartial. Id. Furthermore, a defendant need not prove that a district attorney will benefit personally or economically from prosecuting the defendant. The Louisiana Legislature and courts in Louisiana have made clear that a district attorney must be recused if he is involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused’s trial fairly and impartially. Id.; State v. Tate, 171 So. 108 (La. 1936). In fact, when the Louisiana Legislature passed Article 680, it changed the grounds for recusal from requiring a showing of a “personal interest adverse to that of the prosecution” to any “personal interest in the cause which is in conflict with fair and impartial administration of justice.” See, State v. Bailey, NO. 2007-KK-1922 (La. 2007) (writ denied) (dissent) (discussing change in language and requirements for recusal); See also La. C. Cr. P. art. 680.
The proponent of recusal must prove by a preponderance of the evidence that the district attorney has a personal interest which conflicts with the fair and impartial administration of justice. Id. at 566; State v. Snyder, 237 So.2d 392, 395. However, courts must apply an objective standard in making its recusal determination. That is, the proponent of recusal needs only to produce evidence that would lead a reasonable person to question whether the district attorney can conduct the trial fairly and impartially. King, 956 So. 2d at 570.
What is more, if there is a “close” case, courts must err on the side of recusal to promote the fair and impartial administration of justice. Id. at 570. Furthermore, courts have found that district attorneys had personal interests in cases and ordered their recusal based on broad and varied factual situations.
In State v. Marcotte, 86 So.2d 186 (La. 1956), a police constable was convicted of battery and other offenses. Before trial the defendant filed a motion asking the trial court to recuse the district attorney in the case. The defendant claimed that the district attorney had personal animosity against him stemming from altercations with the district attorney’s father and because the defendant and the district attorney had been politically opposed to each other for years. Id. at 187. Furthermore, the defendant alleged that during the previous primary, the defendant had opposed the district attorney’s candidacy. In response to this political opposition, one of the district attorney’s cohorts (with the knowledge and consent of the district attorney) threatened the defendant saying, “unless [defendant] changed his political activities and supported the district attorney’s candidacy, [defendant] would suffer the consequences of vigorous prosecution and conviction immediately after election ...but if he were to change his political support to the district attorney, the charges would be dropped.” Id. The district attorney denied these allegations in his answer to defendant’s recusal motion. The district attorney also claimed that he held no animosity toward defendant and did not regard him as a personal enemy. Id. The trial court denied defendant’s recusal motion without allowing defendant to cross-examine the district attorney or to provide proof to support his claims. Id. at 188. The defendant appealed. The Supreme Court of Louisiana held that it was improper for the trial court to refuse to hear evidence on defendant’s motion because the allegations alleged by the defendant, if sustained by a preponderance of the evidence, were sufficient to require recusation of the district attorney on the ground that he had a personal interest in the case. Id.
Other courts have also considered a district attorney’s statements as evidence of animosity. In King, the court found that the district attorney’s comments that he would proceed with charges against the defendant partially because the defendant had found himself in the district attorney’s cross hairs was evidence of the district attorney’s impermissible personal interest in the case. King, 956 So.2d 562 at 568. At the recusal hearing, the defendant’s lawyer testified regarding a telephone call he had with the district attorney where the district attorney said he would go forward with the charges against defendant because he was upset by rumors about the district attorney’s family spread by the defendant. Id. at 568. The court found that the evidence supported recusal.
In State v. Snyder, 237 So.2d 392 (La 1970), the defendant was charged with perjury and several counts of defamation for allegedly making defamatory comments about the district attorney and other individuals. All of the charges arose out of a heated political campaign in which the district attorney supported the defendant’s rival. The district attorney nol-prossed the charges stemming from the alleged defamation against the district attorney himself. However, he indicted the defendant for the other alleged defamations. The defendant filed motions to recuse the district attorney from the cases. Id. at 393-394. He claimed the following facts in support of his recusal motion: 1) that the district attorney became engaged in political activities in opposition to defendant’s candidacy, 2) acting in his official capacity, the district attorney publicly expressed a judgment that the defendant was guilty of the criminal offenses despite the fact that he had no evidence to justify such a statement, and 3) the district attorney appeared on a radio talk show where he threatened that all of the defendant’s previous comments on radio programs would “be brought to the Grand jury …and the Grand Jury …will have no other recourse but to return a great many indictments against [defendant].” Id. at 395. At the hearing on defendant’s motion to recuse, the district attorney admitted that he had developed strong personal animosity toward the defendant; but he claimed that the animosity eroded after the election. Id. The trial court overruled the defendant’s motion and the defendant appealed. On appeal, the Supreme Court of Louisiana found that based on the evidence presented, the defendant had established, by a preponderance of the evidence, that the district attorney “has a personal interest in the cause which is in conflict with fair and impartial administration of justice” and thus must be recused pursuant to Article 680(1) of the Code of Criminal Procedure. Id. The Court noted that “where such deep-seated hatred has once evinced itself, the district attorney might, even though unconsciously, have impaired his power to conduct [defendant’s] trial fairly and impartially. Id.
II. The Grounds for Recusal
Because of his bias and conflict, Mr. Walters fails to see what any fair and unbiased individual would see: A “hangman’s noose” hung in a tree previously utilized by whites only, in the context and circumstances of this case, is not, and can never be, a prank. This failure, shown in his actions both as counsel to the school board and as District Attorney, indicate a bias and conflict of interest that, while shared with influential parts of the white community, make it impossible to fairly and impartially prosecute Jessie Ray. As legal counsel to the LaSalle Parish School Board, Mr. Walters was ultimately responsible for the legal opinion to his clients that ensured that the noose-hangers’ school term was only interrupted with suspension and weekend detentions, while guiding the system to a full academic year expulsion for the Jena 6. After African-American students reacted in protest and outrage to the noose-hanging and racial unrest engulfed the school, Mr. Walters threatened the African-American students with ruining their lives with a “stroke of his pen” if they did not behave, while ignoring any responsibility the white students had in the unrest.
As District Attorney, Mr. Walters refused to consider charging the three white students who admitted to hanging the nooses, even though he could have proceeded under not one, but four possible statutes: i.e. terrorizing, institutional vandalism, violating Louisiana’s hate crime statute, and assault. After refusing to prosecute the white noose-hangers, Mr. Walters then made good on his threat to African-Americans, in particular the Jena 6 and Jesse Ray, by overcharging the Jena 6, and arguing for high bonds (thus guaranteeing that they all spent time incarcerated before trial). Based on the facts alleged herein, in addition to what will be adduced at a hearing on the matter, it is clear that Mr. Walters has a personal interest and bias in the cause which is in conflict with the fair and impartial administration of justice.
Pursuant to the standards set forth in Article 680 of the Louisiana Code of Criminal Procedure, State v. Tate, 171 So. 108, and other Louisiana case law, the office of the LaSalle Parish District Attorney, J. Reed Walters, must be recused from this case.
A. Mr. Walters in His Capacity as School Board Counsel: Slapping the Wrists of White Students and Hammering African-Americans.
More than any other image from African-American history, a hangman’s noose is a tangible, visual, silent and deliberate threat intended to instill fear and intimidation. African-Americans suffered death at the hands of white vigilantes for all of their history in our nation, but nothing like the spectacle associated with public lynching. Lynching was a prominent component of the late 19th and 20th century American political landscape, and was utilized as a tool for the systematic intimidation of African-Americans. Between 1882 (when reliable statistics are first available) and 1968, the vast majority of the 4,863 recorded people lynched in the United States were southern, African-American men.
“Lynch mobs” enforced extralegal and barbarous death sentences of hanging and mutilation on thousands of African-Americans in the southern United States. From the 1890’s through the early decades of the 20th century, state and federal lawmakers effectively sanctioned the violence by allowing it to go unchecked and consistently turned a blind eye to the thousands of lynchings. "Lynchings were concentrated in a swath running through Georgia, Alabama, Mississippi and Louisiana." It is inconceivable that an experienced Louisiana prosecutor would be unaware of this history. Community institutions were also complicit in condoning lynching and in protecting perpetrators. Some local newspapers refused to report lynchings in their communities, and others wrote stories advertising coming lynchings and guaranteeing huge crowds. Local law enforcement, prosecutors, and even judges often abdicated their obligation to find and punish lynchers. For example, police directed traffic at the 1931 lynching of Matthew Williams in Salisbury, Maryland. The conspiracy of silence extended to the white townspeople as well. Whites often closed ranks to protect their friends and neighbors while fear kept most African-Americans silent. Some elderly African-Americans are still unwilling to talk openly about lynching today, even within their own families.
Mr. Walter’s bias became clear when he ignored this history and either supported or failed to intervene when the LaSalle Parish School Board expulsion hearing committee overrode school Principal Scott Windham’s recommendation that the noose-hangers be expelled. Instead, the students received suspensions. The obvious nature and significance of this history was highlighted when CNN recently aired “The Noose – An American Nightmare.” The program also showed how important it is for unbiased prosecutors to quell potential violence by prosecuting such crimes before they lead to a spiral of violence. Yet, bias can prevent a prosecutor from carrying out his most basic duties.
Principal Windham knew and was willing to act on what the expulsion hearing committee and Mr. Walters failed to recognize because of an overriding bias. The nooses were an overt, racist threat to the African-American students who dared ask school officials if they could sit with white students at lunch under a tree that had long been associated as a gathering place exclusively for white folks. We cannot assume Mr. Walters is ignorant of this background. Were Mr. Walters not biased, he would recognize that in the context described and considering the history of race, racism, and lynchings in the United States (especially in the South), nooses hanging from a tree are a threat to the entire African-American community. They are a powerful, unequivocal statement to any African-American that he dare not upset the dominant social order. Rather than acknowledge the noose-hanging as the assault and/or hate crime that it was, Mr. Walters' bias allowed him to accept the dominant view, seemingly held by some white citizens in Jena, that the act was merely an “ignorant prank”; and thus he supported his client’s (the school board’s) minor disciplining of the three perpetrators of this racist act.
His treatment of the noose-hangers is in stark contrast with the swift expulsions of the Jena 6. All six were arrested and locked in jails – four in the squalid LaSalle Parish Jail and two in juvenile detention – immediately after the Dec. 4, 2006 battery on Justin Barker. By January 29, 2007, the LaSalle Parish School Board upheld the year-long expulsions of four of the students, with the fifth student apparently not appealing his expulsion. Jena Times, p. 1A (Jan. 31, 2007). As counsel to the school board, Mr. Walters ensured that the underlying facts of the incidents and possible racial bias were not explored as part of the process, admonishing the school board members that “[w]e’re not here to discuss the investigation or any other students, we’re here to make sure the expulsion process was conducted in accordance to Louisiana Statutes.” Id., at p. 3A. The vote to uphold the expulsions was seven-one, with the lone dissent coming from the Board’s sole African-American member. Id.
Having acted as counsel to the school board with the result he directed, Mr. Walters could not then turn around and prosecute the noose cases in an unbiased way. Furthermore, he put himself in the untenable position, through his conflict of interest in representing the school board, of being seen as unfairly acting to expel the Jena 6 and not those who hung the nooses. He cannot now deny his bias and his personal stake in prosecuting Jesse Ray. Mr. Walters’ bias and his interest in validating his advice to the school board is a basis for this Court to recuse him. Contrary to the trial judge’s decision in Bailey, a defendant moving for recusal is not required to prove that the district attorney would receive some personal benefit from prosecuting the defendant. The proper standard, as announced in Tate, only requires that a defendant show that the district attorney is involved or is interested in an extrinsic matter which might consciously or unconsciously impair or destroy his power to fairly and impartially conduct the defendant’s prosecution. Furthermore, even if the standard was as the Bailey court suggested (i.e. that a defendant must show that the district attorney received some personal benefit), the facts in this case would still require a court to recuse District Attorney J. Reed Walters. The benefit that Mr. Walters receives from prosecuting Jesse Ray is a professional benefit. By prosecuting Jesse Ray, Mr. Walters validates his advice to the school board to expel Jesse Ray and his co-defendants. Concomitantly by not prosecuting the noose hangers he validates his advice to the school board not to expel the noose-hangers. It would be professionally embarrassing to Mr. Walters to take any other course. Clearly this “conflict” made it impossible for Mr. Walters to be objective in his duties as prosecutor.
In addition, a further conflict of interest for Mr. Walters arises out of the civil litigation filed by the Barkers against the Jena 6 defendants and the School Board. It is very likely that Mr. Walters will be a witness in that litigation since he was counsel for the School Board at the time of the incident and remains its counsel today. It would be highly improper for him to continue as the prosecutor of the individual Jena 6 defendants in such circumstances. Criminal convictions of the Jena 6 would be advantageous to Walters' client the School Board because a civil jury would be more likely to allocate more of the blame and damages to the Jena 6 defendants if they have been convicted of a crime. The School Board could also argue that they cannot be expected to prevent criminal behavior. Alternatively, if the remaining Jena 6 defendants are acquitted (or if Walters would drop the charges -- as may well be mandated by the lack of credible evidence against at least some of the defendants), the School Board would be left as the primary focus of blame in the civil case. Finally, should there be a claim against the Jena 6 by the School Board (or even a defense grounded in alleged untoward action of the Jena 6) Mr. Walters could be seen as using his position as District Attorney to augment and support the interests of his client, the School Board. Such a conflict of interest is simply inappropriate.
B. Mr. Walters' Bias Allows Him to Make Good on his Threat to African-Americans Students and to Abuse his Prosecutorial Power by Refusing to Charge the White Students and Improperly Charging the African-American Students.
A month or so after the nooses were hung, Mr. Walters was called to Jena High School by Detective Paul Smith to address the students at a hastily called assembly. In a recent “chronology” of events disseminated by the Jena Times, Mr. Smith claims the precipitating incident was a fight involving one of the Jena 6. There is no way the fight stemmed from racial tension and the nooses, the Jena Times assures us, because according to them, from Sept. 9 (the day after Jena High was on “lockdown” after someone reported a gun on campus) to Nov. 30, 2006 (the night an arson’s fire burned the school’s main building down) “there were no such reports of any violence or destruction during this time period.” “Disruptions at school were only those of typical disruptions, nothing related to any racial divide, thus, putting to rest any speculation that there was true racial tensions in town.” See Appendix C, pp. 7-11 (“Chronological Order of Events Concerning the `Jena 6’”).
As with most versions of events surrounding the Jena 6, Jena’s African-Americans recall things differently. Indeed, even the Jena Times’ “Chronology”, which contains lengthy narratives editorializing on facts critical to the events and questions whether the nooses were “racial”, notes an impassioned speech by an African-American mother about the nooses at a school board meeting on Sept. 18, 2006 – nine days after the time of supposed racial “peace” noted above. Id. at pp. 6-7. It was Mr. Smith, the lead detective in the Jena 6 case, not the school principal who called the assembly. Id. at p. 8. African American students remember Mr. Walters harshly admonishing students to behave and obey school rules, saying, “I can be your best friend or your worst enemy. I could take your lives away with the stroke of my pen.”
Unfortunately, this is precisely what Mr. Walters proceeded to do to the Jena 6. After Mr. Smith’s investigation of the battery on Justin, which included a statement by one of the admitted noose-hangers implicating three of the Jena 6 in the attack, all six African-American students were arrested and incarcerated. Bonds were set between $70,000 and $138,000, much too high for most to secure bail and release. Although the Jena 6 were charged with second degree battery at the time of their arrest, Mr. Walters increased the charges to attempted second degree murder and conspiracy to commit attempted second degree murder.
In an unusually public comment on a criminal case, especially one with an on-going investigation, Mr. Walters noted in the front page of the local paper that he “will do whatever is in my authority and power to bring justice to those charged with criminal actions and help restore the schools to a place where the teachers can teach and the children can learn free from the threat of criminals.” See Jena Times 12/13/2007, p. 1A. In fact, in the only conviction to date, Mr. Walters was found by a reviewing court to have exceeded his authority. As noted earlier, this included overcharging 16 year old Mychal Bell in order to transfer the case to adult court and incarcerate him with grown men in a squalid jail for 10 months, only to drop the charges to aggravated second degree battery (a charge not transferable to adult court) after the selection of an all-white jury, and securing a conviction forthwith. An appellate court determined Mr. Walters’ actions exceeded his authority, reversed Mychal’s conviction, and remanded the case back to juvenile court.  Cite to 3rd Circuit opinion or attach if unpublished.
In contrast, Mr. Walters was unable to identify a crime committed by the three white students who admitted to hanging the nooses on schools grounds the day after African-American students asked to sit with white students at lunch under a tree long noted as a gathering place for whites. On September 19, 2007, in a statement to the press, Mr. Walters claimed that he “researched state law and came to the conclusion that there is no state criminal statute prohibiting the conduct [of hanging nooses on school grounds].” The Jena Times, p. 2A (Sept. 19, 2007). Undersigned counsel’s research found a number of possible criminal statutes applicable to the crimes committed by the white students.
First, Mr. Walters had grounds to initiate criminal proceedings against the individual(s) that hung the nooses on the grounds of Jena’s high school under Louisiana’s terrorizing or institutional vandalism statutes. In light of the facts surrounding the noose hanging, Mr. Walters also could have prosecuted such individual(s) for violation of Louisiana’s hate crimes statute. Louisiana’s hate crime statute, provides:
It shall be unlawful for any person to select the victim of the following offenses against person and property because of actual or perceived race, age, gender, religion, color, creed disability, sexual orientation, national origin, or ancestry of that person or the owner or occupant of that property or because of actual or perceived membership or service in, or employment with, an organization: first or second degree murder; manslaughter; battery; aggravated battery; second degree battery; aggravated assault with a firearm; terrorizing; mingling harmful substances; simple, forcible, or aggravated rape; sexual battery, second degree sexual battery; oral sexual battery; carnal knowledge of a juvenile; indecent behavior with juveniles; molestation of a juvenile; simple, second degree, or aggravated kidnapping; simple or aggravated arson; placing combustible materials; communicating of false information of planned arson; simple or aggravated criminal damage to property; contamination of water supplies; simple or aggravated burglary; criminal trespass; simple, first degree, or armed robbery; purse snatching; extortion; theft; desecration of graves; institutional vandalism; or assault by drive-by shooting.
La. Rev. Stat. ann. § 14:107.2(A). In order to be guilty of violating Louisiana’s hate crime statute, a defendant must be guilty of one of the underlying offenses set forth in section 14:107.2(A). Hanging a noose constitutes not one but two of the specified underlying offenses: terrorizing and institutional vandalism.” Terrorizing was one of the goals of lynchings in the American South. “Lynchings …had three intertwined functions. [The] first goal, [was] to maintain social order over the black population through terrorism…" Those nooses hanging from a tree (perceived by many as a white only tree) represent that terrorism.
In addition, Mr. Walters could have prosecuted such individual(s) for assault if he had simply overcome his bias and recognized that a hanging noose, in light of the facts herein and its historical meaning in Louisiana, conveys a substantially similar message as that of a burning cross, and then relied on precedent establishing that a burning cross causes the person to whom it is directed to be in reasonable apprehension of receiving violence to his or her person. See, e.g., Virginia v. Black, 538 U.S. 343 (U.S. 2002) (Supreme Court held that a state may prohibit intimidating cross-burning without violating the First Amendment’s prohibition on regulating free speech because burning a cross falls under the “true threat” exception to free speech.); Florida v. T.B.D., 656 So.2d 479 (Fl. 1995) (Supreme Court of Florida held that a statute prohibiting cross burnings on another’s property without written permission is constitutional, and holds that burning a cross is a threat. The Court stated that “an unauthorized cross-burning by intruders constitutes a direct affront to one’s privacy and security and has been inextricably linked in the state’s history, to sudden and precipitous violence – lynchings, shootings, whippings, mutilations, and home-burnings. The connection between a flaming cross in the yard and forthcoming violence is clear and direct.”). Additionally, in T.B.D., the dissenting opinion noted that the state could have prosecuted the cross-burner for assault: “the issue in this case is not whether the state can prohibit the contemptible act of cross-burning. Clearly, it can. . . . The defendant in T.B.D. could have been charged with any number of offenses other than the one at issue, including assault.”
Although he was unable to find a law to prosecute the noose-hangers, Mr. Walters’ creativity knew no bounds when it came to charging and prosecuting the Jena 6. He charged the African-American youth with attempted murder, even though Justin walked out of the hospital and attended a school party hours after the incident. He convinced the Mychal Bell jury that a tennis shoe was a dangerous weapon in order to qualify for aggravated second degree battery. But he could not find a law to prosecute the white boys who hung nooses from a tree on public school grounds. As will be made clear at a hearing on the matter, his failure to do so had little to do with the Louisiana criminal code’s shortcomings, and everything to do with his personal bias and interest in the case.
C. Mr. Walters Has Abused His Authority in Other, Confidential Matters
At a hearing on this motion, Jesse Ray will seek a public trial on matters that have heretofore been confidential, juvenile proceedings. Under our state’s juvenile code he apparently is not free to discuss the proceedings or release documents related to those proceedings. Jesse Ray will waive the confidentiality and protection it was supposed to provide and seek a full and open discussion of prosecutorial misconduct that occurred therein and in this proceeding that prove that Mr. Walters is unable to fairly and impartially perform his duties in this case.
The United States Supreme Court made clear in United States v. Berger -- echoed almost immediately by our Supreme Court in State v. Tate, -- that a prosecutor’s responsibility was to seek justice, not convictions:
[The prosecutor’s] interest . . . 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. . . .
United States v. Berger, 295 U.S. at 88 (emphasis added).
The Louisiana Constitution of 1974 embraces the same principle when it states, in Section 1 of Article I (The Origin and Purpose of Government):
All Government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights and promote the happiness and general welfare of the people.
La. Const. Art. I, sec. 1. In reference to the prosecutor’s responsibilities towards fairness, our Supreme Court has plainly said:
The district attorney is a quasi judicial officer. He represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes.
Plaquemines Parish Commission Council v. Perez, Jr., 379 So. 2d 1373, 1376-1377 (La. 1980) citing State v. Tate, 185 La. 1006, 171 So. 108 (1936).
As will be shown at a hearing on this matter, it is clear that Mr. Walters’ behavior in this and other cases involving Jesse Ray is not about justice, but instead has been about securing convictions in a patently unfair and abusive manner.
Mr. Walters is incapable of fairly and impartially prosecuting Jesse Ray Beard. His bias and conflict of interest in this matter is made clear by his disparate treatment of the students at both the school board level and as prosecutor. In addition, his actions at the school board created a conflict of interest and made it impossible for him to fairly and impartially act as a prosecutor herein. Finally, Mr. Walters’ actions in this and other cases abused his authority as a prosecutor and prove his bias and prejudice toward Jesse Ray. Therefore, this Court should recuse Mr. Walters and his office from this prosecution.
DAVID J. UTTER
Juvenile Justice Project of Louisiana
1600 Oretha Castle Haley Blvd.
New Orleans, LA 70113
Telephone: (504) 522-5437
Fax: (504) 522-5430
I hereby certify that a copy of the foregoing motion has been hand-delivered to Mr. Reed
Walters, Assistant District Attorney, Parish of LaSalle, on this the ___ day of ______________,
DAVID J. UTTER
Considering the foregoing motion, it is ordered that Jesse Ray Beard be granted a hearing herein and that same be heard on the ___________ day of ____________________, at ___ o’clock AM/PM, contradictorily with the State of Louisiana.
Jena, Louisiana, this ___ day of ___________________, 2008.
JUDGE J. P. MAUFFRAY, JR.
 When the District Attorney himself is recused, Article 682 of the Louisiana Code of Criminal Procedure requires the trial judge to appoint a qualified attorney of that district “who is not an assistant to the recused District Attorney” or notify the Attorney General to appoint a member of his staff or a District Attorney of another district to act. la. c. Cr. P. art. 682. Similarly, well-settled case law clearly establishes that the District Attorney’s own assistant cannot prosecute after his recusal. State v. Buhler 62 So.2d 145, 148 (La. 1913); State v. Snyder, 237 S.2d 392, 395 (La. 1970). Cases in which courts have allowed others in an office to prosecute upon recusal deal with the recusal of an assistant District Attorney where the power and control of the District Attorney over his assistant was not an issue. Since Motions to Change Venue are also pending in other Jena 6 prosecutions, it would seem most reasonable that the Attorney General should be notified in accordance with Article 682.
 According to one white resident, the tree had a history of association with white students that went back to the days when the school was “initially integrated.” Race Hate in Louisiana (BBC documentary, May 24, 2007).
 By statute, the District Attorney of a particular district is the regular attorney for the parish school boards in that district. La. Rev. Stat. ann §16:2 (A) However, nothing prevents the school board from employing a general or special attorney which would relieve the district attorney of his responsibility under circumstances such as these. This approach should have been taken in this case to avoid the most obvious of conflicts. LA. Atty Gen Op. No. 90-150, 1990 WL 544667 (La. A.G. May 25, 1990) (Visitor's Commission may appoint Special Counsel); La. Atty. Gen. Op. No. 89-612, 1989 WL 454467 (LA. A.G. 1989) (Conflict of interest established that necessity required replacement under statute); LA. Atty. Gen. Op. No. 95-500, 1995 WL 815626 (LA. A.G. 1995) (School board may hire special counsel); LA. Rev. Stat. Ann. §42 263(A). How could Mr. Walters have been expected to fairly judge whether those who hung the nooses should be criminally prosecuted after possibly advising the school board in a situation where ultimately they were not even expelled from school? How could Mr. Walters have been expected to fairly judge whether those who hung the nooses and those involved in the fight should be criminally prosecuted when he possibly had already participated in school board determinations that one group should be expelled and not the other?
 See “Incident More Hype Than Reality,” Jena Times, p. 2A (Sept. 13, 2006) (On Sept. 8, a week after the hangmen’s nooses menaced the African-American population, reports of a gun on campus caused police to search the entire building. 160 students were checked out of school early by their parents and another 150 had failed to come to school in the first place. So palpable was the racial tension and so panicked was the community that LaSalle Parish School Superintendent Roy Breithaupt appeared on local radio to claim the school was safe.)
 Mychal Bell, the only defendant in the Jena 6 to go to trial, recently pled guilty to second degree battery and admitted to punching Justin once in the head. See, Appendix A (Transcript, Dec. 3, 2007 Guilty Plea and Sentence, State In the Interest of Mychal Bell, No. J-4002/J-4005). Mychal and his family contend that Mychal’s battery of Justin was provoked by racist and threatening behavior by Justin. Appendix B (Amended and Supplemental Answer, Reconventional Demand, and Cross Claim, David Barker, et al. v. LaSalle Parish School Board, et al., No. 35918, 28TH JDC, Parish of LaSalle, State of Louisiana) (In his family’s responsive pleading to a lawsuit by the Barkers, Mychal claims that a few days before the battery, Justin drove his pick-up truck by Mychal and a passenger in the truck pointed a shot-gun out the window, pointing at Mychal and pumping it once. In addition, Mychal claims that Justin called Mychal a “stupid ass nigger” before lunch, and that a tomato was thrown from Justin’s table at Mychal’s table during lunch. It was immediately after lunch, after Justin allegedly insulted Mychal again, that Mychal admitting to hitting Justin.)
 A 16 year old with a promising college football career ahead of him, Mychal spent approximately 10 months in the adult jail in LaSalle Parish up to, during, and after his trial. After Mr. Walters amended the charges back down to Aggravated Second Degree battery, the all-white jury convicted Mychal in short order. The Third Circuit Court of Appeals reversed the conviction and held that Mr. Walters improperly transferred Mychal to adult court. As noted above, Mychal recently pled guilty to second degree battery.
 The United States Constitution also mandates Due Process and Equal Protection in the 5th and 14th Amendments respectively. See U.S. const. amend. V; U.S. const. amend. XIV.
 As President Bush recently declared: “Displaying [a noose] is not a harmless prank . . .”, but instead is “deeply offensive.” “They [nooses and references to lynchings] are wrong. And they have no place in America today.” See, e.g., www.msnbc.msn.com/id/23131433/.
 “Explorations Lynching”. Digital History, digitalhistory.uh.edu, (2007).
 Stewart E. Tolnay et. al, A Festival of Violence: An Analysis of Southern Lynchings, 1882-1930, (Chicago University Press 1992).
 Jesse Ray will be prepared to provide expert testimony regarding the symbolic power of the hangman’s noose to African-Americans.
 The extent of Mr. Walters’ role in the suspension/expulsion hearing of the noose-hangers is unclear. He is quoted as advising the school board during the expulsion decisions regarding the Jena 6. See, Jena Times, p. 1A (January 31, 2007). Of course, the extent and nature of this advice and his advice regarding the noose-hangers will need to be tested in discovery or at the hearing through the testimony of Mr. Walters and the school board members. Whether a privilege will be asserted in an attempt to hide such disclosures will also have to be tested under oath considering the public waiver of any suggested privilege.
 It is unclear whether the newspaper’s interpretation of the event was its own or that of unnamed officials. The Sept. 13, 2006 article states that “officials note that most of the `racial tensions’ were more media hype than reality” and later calls the nooses an “ignorant prank.” Jena Times, p. 1A (Sept. 13, 2006). The real question is who the “officials” were. While the list is possibly a long one that includes Mr. Walters himself, it does not matter for purposes of this motion due to Mr. Walters' actions as school board counsel that supported the lenient discipline.
 According to the media reports, only five of the Jena Six were expelled. See, Jena Times, p. 3A (Jan. 31, 2007). At this time it is unclear who was not expelled, and while Jesse Ray was eventually allowed back at Jena High, and is the only one back, many of the six are attending school again, albeit not at Jena High School.
 Mr. Smith was the lead investigator in the Jena 6 case and is now police chief of Jena.
 Mr. Walters, in a statement provided to the Jena Times, acknowledges such a statement to students, and admits that he pulled out his ink pen to illustrate his point. “DA/School Officials Grant Exclusive Interviews,” Jena Times web version, 10/03/2007. In addition, he claims he directed his comments to disrespectful white girls in the audience; Jesse Ray will present testimony at a hearing on this matter with a different interpretation of Mr. Walters’ words and the circumstances of the assembly.
 Days before his re-trial in juvenile court, Mychal accepted a plea bargain. In return for a plea of guilty to a reduced charge of second degree battery, Mychal was given a disposition of 18 months in the custody of the Office of Youth Development, with no recommendation regarding juvenile prison, and a modification of a prior commitment to secure care, changing the prior disposition to no recommendation of juvenile prison. The plea bargain and modification of Mychal’s prior disposition meant that Mychal was freed from further prison or jail time, as he was allowed to serve this sentence concurrently with another 18 month sentence he had already begun serving for an unrelated set of charges. See, Appendix A (Transcript, Dec. 3, 2007 Guilty Plea and Sentence, State In the Interest of Mychal Bell, No. J-4002/J-4005).
 Indeed, this is not the first case to get under Mr. Walters’ skin. He was recused from a recent case when he let his personal feelings towards a defendant influence his charging decisions. See, State of Louisiana v. King, 956 So. 2d 562, 563 (La. 2007).
 Under Louisiana law, the criminal offense of terrorizing is defined as “[t]he intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public.” La. Rev. Stat. ann. § 14:40.1(A). While Mr. Walters does not have authority to prosecute Federal hate crimes it should be noted that Donald Washington, the U.S. Attorney for the Western District of La., recognized in his testimony before Congress that the noose hanging was a federal hate crime. See Chicago Tribune §1 p. 4, (October 17, 2007).
 The offense of institutional vandalism is defined, in relevant part, as follows:
A person commits the crime of institutional vandalism by knowingly vandalizing, defacing, or otherwise damaging the following:
· . . .
· (3) any school, education facility, or community center [or]
· (4) the grounds adjacent to and owned or rented by any institution, facility, building, structure or place described in Paragraph 3.
La. Rev. Stat. ann. § 14:225.
 Stewart E. Tolnay et. al, A Festival of Violence: An Analysis of Southern Lynchings, 1882-1930, (Chicago University Press 1992).
 Under Louisiana law, assault is defined as “an attempt to commit battery, or the intentional placing of another in reasonably apprehension of receiving a battery.” La. Rev. Stat. ann. §14:36. “Battery is the intentional use of force or violence upon the person of another.” La. Rev. Stat. ann. §14:33.
 "Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.” La. Rev. Stat. ann. §14:34 (2007) (emph. added)