256 So. 3d 1091
La. Ct. App.2017Background
- Michael Scott Papizan was charged in Oct 2015 with aggravated crime against nature based on alleged repeated inappropriate touching of his son.
- During the June 2016 jury trial, defense counsel’s voir dire included questions closely mirroring the charged conduct; the state objected and sought various remedies (mistrial, striking jury pool, stay), all denied.
- After voir dire, the state voluntarily dismissed the prosecution without prejudice and, ~5 weeks later, refiled the same charge.
- Papizan moved to quash the new bill, arguing the DA “flaunted” prosecutorial power to restart after unfavorable voir dire, causing prejudice (extra fees, lost jury consultant benefit, voir dire advantage to the state); the trial court granted the motion.
- The state appealed, arguing the dismissal/refiling was a lawful exercise of prosecutorial discretion taken in good faith to cure a tainted jury pool and that Papizan failed to prove specific, substantial prejudice.
- The appellate court affirmed the trial court, applying a due-process standard that requires proof the state acted to gain tactical advantage and that the action caused substantial prejudice to the defendant’s right to a fair trial.
Issues
| Issue | Papizan's Argument | State's Argument | Held |
|---|---|---|---|
| Whether dismissal and refiling violated due process by "flaunting" prosecutorial authority | The DA dismissed/refiled to restart after unfavorable voir dire, imposing costs and impairing defense (lost consultant benefit, less effective voir dire) | The DA acted in good faith to cure a tainted jury pool after improper voir dire and exhausted available remedies | Court: Quash affirmed — dismissal/refiling violated due process because record shows the state’s actions substantially prejudiced the defense and amounted to flaunting authority |
| Proper legal standard for such quash motions | (implicit) require showing prejudice and improper purpose | Same (but contests that prejudice was proven) | Court: Defendant must show (1) dismissal was for purpose of gaining tactical advantage and (2) action caused substantial prejudice; those elements met here |
Key Cases Cited
- United States v. Marion, 404 U.S. 307 (U.S. 1971) (prejudice plus intentional tactical advantage required to dismiss for preindictment delay)
- United States v. Lovasco, 431 U.S. 783 (U.S. 1977) (due-process review must consider reasons for prosecutorial timing decisions)
- United States v. Valenzuela-Bernal, 458 U.S. 858 (U.S. 1982) (due process guarantees fundamental fairness in criminal proceedings)
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (speedy-trial balancing test and societal interest in prosecution)
- State v. Love, 847 So.2d 1198 (La. 2003) (refiling after denied continuance can constitute flaunting prosecutorial authority)
- State v. Batiste, 939 So.2d 1245 (La. 2006) (defendant must show dismissal aimed at disadvantaging defense)
- State v. King, 60 So.3d 615 (La. 2011) (motion to quash for flaunting authority requires proof of specific prejudice)
- State v. Alfred, 337 So.2d 1049 (La. 1976) (recognizing serious consequence of dismissing prosecutions not time-barred)