LAFAYETTE, La. — Trial has again been delayed in Lafayette City Marshal Brian Pope’s felony case.
Pope was in court on Monday for a hearing on three of his outstanding motions: to suppress his emails from being used as evidence in the trial, to sever some of his seven felony charges from one another and try them separately and to move his trial to another parish.
The 15th Judicial District judge presiding over the case, David Smith, said he needs time to review the submitted evidence and testimony before making a decision. His next available hearing date to issue the ruling is not until May 21.
That’s beyond the April 23 date last set for Pope’s trial, which is now postponed without a new date.
Pope faces two counts of perjury and five counts of malfeasance in office. Read the specifics about each charge here.
Pope’s emails form much of the basis of the felony counts against him, and his attorneys submitted arguments to exclude them from use in his trial.
They argued that when Lafayette Consolidated Government searched the marshal’s public email account and released his emails as part of a public records request, they were engaging in the illegal search and seizure of Pope’s account.
LCG owns and operates the server that hosts the Marshal’s Office lafayettela.gov email accounts, but Pope has consistently argued that his office is independent of city-parish government — and thus, his attorneys, Brett Grayson and John McLindon, have argued that LCG had no right to access his emails.
Former city attorney Michael Hebert took the stand on Monday and said he does not consider the Marshal’s Office a part of LCG.
Hebert said the issue has come up before. Years ago, Hebert said he had to explain to a deputy marshal that LCG would not provide him legal representation in officer-involved shooting because of that separation.
That deputy took the stand and testified the same.
"I was denied representation because I was told that I was not a Lafayette Consolidated Government employee," he said.
Still, Marshal’s Office employees sign use agreements with LCG for its internet and email services. Those documents say that their use is subject to monitoring, and any communications are considered public business and could be accessed. The deputy marshal signed such a document, and Pope approved it with his own signature.
Prosecutor Alan Haney argued that the emails were released as part of a public records request and pointed out that the judge in the Independent’s lawsuit, Jules Edwards, has already ruled that they were public records.
He also dismissed another legal argument brought up by Pope’s attorneys, which referred to a Jefferson Parish public case that involved a private citizen working for an economic development group. In that case, the state Supreme Court ruled that personal emails are not subject to disclosure, and that private citizens’ information should be redacted in any emails that are released.
The Supreme Court also ruled in that case that emails with nothing to do with the work of that public office are not subject to disclosure.
Haney argued that the roles are reversed in this case — Pope is an elected, public official — and that the personal emails that were disclosed did in fact involve the operations of his public office.
The emails in question involved an official press conference Pope called in 2015 during the Lafayette Parish Sheriff race. The public records lawsuit that followed ultimately unearthed emails that showed Pope planned the press conference — an attack on the now-sheriff — with a political ally seeking the seat.
"He made it public the minute he decided to have a press conference in full uniform" alongside uniformed deputy marshals, in a public building and on public time, Haney said.
Smith has already ruled that the marshal’s emails could be used as evidence in the trial, but the Third Circuit Court of Appeal sent the case back for a rehearing. The court said it’s constitutionally required for the judge to hear evidence when a defendant argues evidence obtained in his case was unlawfully obtained. Read more on that here.
A federal judge last week also made a ruling after Pope’s attorneys made similar arguments in effort to prevent LCG from accessing the marshal’s emails ever again. He denied that motion, finding that the federal law argued does not apply. But he also noted that there could be an argument at the state level on who owns the marshal’s communications. Read more on that here.
Pope’s attorneys also argued to sever some of the marshal’s charges so that they’re tried separately. They argued that the jury would not be able to distinguish evidence presented on each of the seven counts and thus could be "persuaded" by considering it all as a whole.
Haney argued that the counts are all part of one "scheme" to use public resources for political purposes, and they should remain on one indictment.
On the motion to move Pope’s trial, the marshal’s attorneys said that the citizens of Lafayette "have been bombarded, often day after day after day," with news coverage of the marshal’s legal battles since late 2015, and that’s reason for moving the trial to another location.
Haney argued that Baton Rouge serial killer Derrick Todd Lee, perhaps "the most famous" serial killer in Louisiana, still was tried in East Baton Rouge Parish.
"If they can pick a jury for Derrick Todd Lee, then we can at least try to pic a jury in this parish," Haney said.