STATE OF LOUISIANA NO. 21-K-627 VERSUS FIFTH CIRCUIT LAWRENCE STAEHLE COURT OF APPEAL STATE OF LOUISIANA

October 05, 2021 Nancy F. Vega Chief Deputy Clerk

IN RE LAWRENCE STAEHLE APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE M. LAUREN LEMMON, DIVISION "D", NUMBER 21,284

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

WRIT GRANTED FOR A LIMITED PURPOSE Relator, Lawrence Staehle, seeks expedited review of the 29th Judicial District Court’s August 19, 2021 judgment denying his Motion for the Defendant to be Physically Present in Court for all Hearings. Relator was arrested on May 17, 2021 on charges of second degree kidnapping and aggravated second degree battery, according to the bill of information filed on July 19, 2021. At the arraignment and preliminary examination scheduled for July 22, 2021, Relator, appearing via audio-visual electronic equipment, advised the court that he wished to be present in court for all hearings held in the matter. According to Relator, his case had been set for hearing on four previous dates, and he has not been transported to court for any of those dates. He then filed a motion requesting to be present at all hearings on August 5, 2021. The district court issued an order denying his motion on August 19, 2021. Relator timely filed this writ application and requested expedited consideration. Relator’s arraignment and preliminary examination are currently set on October 21, 2021. Relator has been incarcerated since his arrest in May 2021 as he was denied bail pursuant to a Gwen’s Law hearing.

In his counseled writ application, Relator argues that La. C.Cr.P. art. 834 provides that a defendant has a right to be present at all hearings and La. C.Cr.P. art. 522(B) provides that counsel for the defense must consent to the defendant appearing via audio visual conference for pretrial motions or hearings on pretrial motions. Relator also avers that the district attorney had no objection to his motion being granted and defendants are appearing in person in the other two divisions of the district court. In its order denying Relator’s motion, the court cited its consideration of public health advisories issued by the Centers for Disease Control 21-K-627 and Prevention (“CDC”) and the Louisiana Department of Health and Hospitals (“DHH”), as well as concerns about the substantial risk posed by the Delta variant of the coronavirus and recent metrics regarding COVID-19 hospitalizations and mortality rates.

The arraignment consists of the reading of the indictment to the defendant by the clerk in open court, and the court calling upon the defendant to plead. La. C.Cr.P. 551(A). A defendant charged with a felony shall be present at arraignment, except as provided by local rules of court in accordance with La. C.Cr.P. arts. 522, 551, and 562. La. C.Cr.P. art. 831(A). If provided for by the local rules of court, and approved by defense counsel, a defendant’s appearance at any (hearing on a) pretrial motion may be via simultaneous transmission through audio-visual electronic equipment. La. C.Cr.P. 522(B). In a case where the offense is a noncapital felony, a defendant incarcerated within the State, may, with the court's and district attorney’s consent, appear at the entry of his plea of guilty if the court, by local rule, provides for the defendant's appearance via simultaneous transmission through audio-visual electronic equipment and the defendant waives his right to be physically present at the proceeding. La. C.Cr.P. 562(A).

The Louisiana Supreme Court’s most recent order regarding COVID-19 protocols in State courts was issued February 11, 2021, stating that the provisions set forth in the Court’s January 11, 2021 Order regarding in-person and remote proceedings remain in full force and effect. Pertinently, the Supreme Court provided the following guidelines regarding in-person proceedings: In-Person Proceedings: Courts are expressly authorized to continue to conduct in-person proceedings on all matters other than trial by jury. Therefore, for cases involving trial by jury, courts may conduct in-person proceedings in a pre-trial and post-trial posture.

[. . . ] In all matters, Courts should take measures to limit access to courtrooms and other spaces, with minimum physical contact, to practice social distancing and limit in-person court capacity to 50% of the total capacity, as determined by the State Fire Marshall, counting both the number of employees and members of the public present in the building at one time.

As this situation is constantly changing, courts are further instructed to follow all guidelines issued by the Center for Disease Control, the President and the Governor, and to further limit access to courtroom and other spaces to the maximum number of people set forth in any future guideline or official proclamation that may be issued.

The Supreme Court order further stated: “Courts are encouraged to conduct remote proceedings by telephone, video, teleconferencing, or any other means that do not involve in-person contact with consent of all parties and the judge.” The order also empowered the judiciary to proceed with remote hearings in civil matters in instances where consent was being “unreasonably withheld by any party.”

Considering the foregoing, and acknowledging the public health emergency that has slowed the administration of justice, we find that the district court erred when it did not allow Relator to be physically present at the arraignment only.

Relator’s request is otherwise premature and we pretermit discussion of whether Relator has a right to be physically present at all hearings at this time. The writ is granted for the limited purpose of ordering the district court to schedule Relator’s arraignment within 30 days of its reopening and resuming operations post- Hurricane Ida, at a time and place where Relator is physically present during the hearing and the most recent COVID -19 mitigation measures and statewide mandates, as ordered by the Governor, are observed.

Gretna, Louisiana, this 5th day of October, 2021.

MEJ FHW

STATE OF LOUISIANA NO. 21-K-627 VERSUS FIFTH CIRCUIT LAWRENCE STAEHLE COURT OF APPEAL STATE OF LOUISIANA

WINDHORST, J., DISSENTS WITH REASONS I respectfully disagree with the majority’s disposition finding that the trial court “erred when it did not allow relator to be physically present at the arraignment only.” On July 22, 2021, after defendant expressed his desire to be physically present at his arraignment, the trial court continued the matter and relator’s arraignment is currently set for October 21, 2021. Accordingly, on the showing made, I would deny this writ application as premature.

SJW

21-K-627 SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 10/05/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-K-627 E-NOTIFIED 29th Judicial District Court (Clerk) Honorable M. Lauren Lemmon (DISTRICT JUDGE) Maria M. Chaisson (Relator) MAILED Hon. Joel T. Chaisson, II (Respondent) District Attorney Twenty-Ninth Judicial District Court Post Office Box 680 Hahnville, LA 70057