Fault Lines
20 January 2019

Louisiana Prosecutor Blasts Judge’s Impartiality for Considering Defense Motion

Apr. 7, 2016 (Mimesis Law) — This week, Orleans Parish Assistant District Attorney Jason Napoli exhibited his frustration and exasperation over Judge Franz Zibilich’s consideration of a defense motion to vacate the jury verdict in Ronnie Torregano’s case. You see, prosecutors in Louisiana, where stealing candy equates to life in prison, don’t take kindly to judges who review motions and mull over evidence.

Following a contentious trial, Torregano was acquitted of rape but convicted of unauthorized entry into a home and stalking. The case centered around allegations by an ex-girlfriend which initially led to simple battery charges that were later upgraded to rape. At trial, evidence showed the girlfriend did not call 911 to report a rape, claiming she was too traumatized, yet then continued extensive friendly text and telephone conversations with Torregano. These undermined her credibility and resulted in the partial acquittal. Based upon the conflicted verdict, Torregano filed a motion for post verdict acquittal on the illegal entry and stalking charges.

While considering the motion and sentencing, Judge Zibilich expressed concern over the jury’s verdict:

Zibilich said the jury’s verdict resulted from compromise over a split decision. He was “troubled,” he said, that the jury “clearly did not believe the victim” was raped but convicted the defendant of stalking her.

Zibilich said he found it “significant” that the victim reached out to the defendant a number of times, including a text asking Torregano if he wanted to “do lunch.”

“I’m left with the conclusion that the victim at the very least is sending mixed messages to the defendant by keeping lines of communication open,” Zibilich said.

As Zibilich mulled over the evidence, one factor to be determined in relation to the stalking conviction was whether the event caused fear or emotional distress. Thus, Zibilich inquired of Napoli:

Do you believe that someone, who alleges to be in fear of someone and then initiates some phone calls, in a way waters down the fear of the past?

Apparently judges are not supposed to question the prosecution’s evidence. They are not supposed to reconsider verdicts. Never mind that the law allows the judge to render an acquittal in appropriate cases after a jury conviction.

Napoli became visibly frustrated and attempted to explain away the judge’s concern by arguing the victim was just reacting to being raped, something his expert testified to at trial. (The victim had testified she was engaging in conversation to trap Torregano into confessing and jumpstart the rape investigation.) Napoli clearly failed to comprehend that the jury, too, had concerns about the victim’s testimony, as evidenced by their acquittal in the rape charges. Zibilich rescheduled the hearing, saying he needed a few days to digest the defense motion and ordered both sides to brief the motion for acquittal.

With continued annoyance and resentment over Judge Zibilich’s comments, Napoli fired off a disturbing and disrespectful memo challenging Zibilich’s impartiality. Napoli wrote:

What has become apparent is that this court prejudged this case prior to hearing from a single witness at trial and is now trying to supplant a verdict that was fairly obtained by the state.

Napoli accused the judge of making disparaging remarks at the bench about the state’s case before a jury was selected and again within earshot of jurors retiring to their lounge during a recess. Yet, Napoli had sought neither to recuse Zibilich pre-trial for his bias nor during trial for his continued disdain. Of course, recusal would have required a motion to be filed immediately after the facts were discovered, but prior to verdict or judgment. Napoli chose no such action. Instead, he continued the trial and waited to raise these issues once it appeared the judge might actually consider the defense’s motion.

Addressing Zibilich’s post-trial remark about mixed signals, Napoli wrote:

The court has stated that the victim was enticing this harassment.

The court is completely dismissing the testimony of an expert witness in the field of sexual assault. … The court’s statements demonstrate a lack of understanding of the facts and evidence presented at trial and a willingness to ignore expert testimony. This court’s opinion has also demonstrated a lack of understanding of the psychological effects of domestic and sexual abuse.

Perhaps Napoli’s facts and evidence presented at trial were not quite as clear as he believes. After all, even the jury discounted both victim and expert testimony in rendering their verdict. Rather than concede it might have been the facts or his presentation, Napoli would rather blame the judge.

Alas, this isn’t the first time, nor the second, a prosecutor has blamed a judge, and it won’t be the last.

Being this was not the first time Napoli has clashed with Zibilich, it is safe to assume Zibilich is not necessarily the pro-state, tough on crime jurist they had hoped for. Napoli’s boss, District Attorney Leon Cannizzaro, had endorsed and praised Judge Zibilich. But, that was before he considered ruling against the government.

Who knows? Maybe Zibilich will be endorsed yet again; after all, he ultimately denied the defense motion to vacate the verdict and gave Napoli the victory.

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