An appeals court has instructed the judge in Lafayette City Marshal Brian Pope’s criminal case to hear evidence on whether his emails were subject to an illegal search and seizure.
Pope’s attorneys are trying to exclude his emails from the trial. They allege Lafayette Consolidated Government employees unconstitutionally accessed his government email account to release those emails in a public records request — an argument they’ve also made in a pending federal lawsuit against LCG.
Judge David Smith had ruled against Pope’s attorneys on that argument, as did another judge in the civil lawsuit that led to his indictment. But in a ruling this week, the Third Circuit Court of Appeal vacated Smith’s decision and instructed him to hear evidence on the claim.
The appeals court noted that trial judges "are required to conduct an evidentiary hearing when a defendant alleges facts showing the contested evidence was unconstitutionally obtained."
A hearing has not been set on the matter, and another motion to move Pope’s trial to another location is still pending.
Pope is set for trial on Feb. 20 on five counts of malfeasance in office and two counts of perjury.
The charges stem from Pope’s alleged actions during the 2015 Lafayette Parish Sheriff campaign, when prosecutors charge Pope used his public office to aid a political ally vying for the seat. Some of the evidence was uncovered when a newspaper sued the marshal for refusing to turn over related emails.
In an effort to unseal Lafayette Parish Sheriff Mark Garber’s divorce record, Pope is accused of malfeasance for allegedly using public money to hire a private citizen to file the suit. At the time, Garber was locked in the sheriff’s race against Scott Police Chief Chad Leger, whom Pope had endorsed.
Pope’s also accused of malfeasance for calling an official press conference to attack Garber during the campaign. That press conference spurred The Independent to sue Pope when he refused to turn over emails related to the event.
Although Pope had testified under oath that he did not collude with Leger’s campaign on the event, emails uncovered during the lawsuit showed that he had, leading to two perjury charges.
For the remaining three malfeasance charges, Pope is accused of using public money to fund his legal appeal in a criminal contempt-of-court conviction for withholding the emails. Prosecutors allege Pope also misused public money when he paid for attorneys to represent his employees during questioning, even though they were not the target of a criminal investigation, and they charge Pope paid his public employees to draft a fundraising letter for his campaign.
Smith is also allowing Pope’s attorneys to subpoena the Recall Brian Pope organizers, who say they’ve long destroyed the list of signatures that Pope’s attorneys seek. A hearing has not been set on that matter, either.
Pope is also set for a probation hearing on Feb. 28. He’s due to perform 173 hours of community service by November on the contempt-of-court conviction for withholding his emails. As of December, he had only completed one eight-hour shift of litter abatement.