A Monroe judge is expected to rule soon on whether a Mangham contractor can obtain certain criminal investigative documents surrounding allegations that a Second Circuit Court of Appeal judge and his law clerk mishandled the contractor’s $20-million lawsuit against the state.
In 2007, Jeff Mercer, of Mangham, sued the state Department of Transportation and Development and a handful of DOTD officials for retaliating against his business when he exposed a system of bribes involving a project on Louisville Avenue in Monroe. A jury awarded him $20-million in 2015 but the Second Circuit reversed the money verdict.
In September, Mercer filed a new lawsuit at Fourth Judicial District Court in Monroe to annul the Second Circuit’s judgment, claiming that former Second Circuit Chief Judge Henry Brown Jr. and his law clerk, Trina Chu, mishandled Mercer’s appeal.
Though their offices previously marked the criminal investigation of Chu as closed, Caddo Parish Sheriff Steve Prator and Caddo Parish District Attorney James Stewart Sr. claimed their investigation was “open” after Mercer filed his recent lawsuit, Mercer has argued. An “open” investigation would allow authorities to claim certain privileges forbidding the disclosure of investigative documents under state law.
The Second Circuit also has asked the court to seal the court record.
Court documents showed Mercer opposed such an action.
“We received the Second Circuit’s motion for ex parte sealing of the entire record, and want the court to be aware that we oppose such a motion on an ex parte basis,” wrote Rayville attorney David Doughty in a Nov. 15 letter on behalf of Mercer.
Doughty and John Hoychick, with the Rayville law firm of Cotton, Bolton, Hoychick & Doughty, represent Mercer.
In a Nov. 19 memorandum, Mercer claimed the Second Circuit’s filing on Nov. 13, including a new memorandum as well as a motion to quash subpoenas and an ex parte motion to seal the petition to annul, also were untimely.
None of the Second Circuit’s motions were filed within the 15-day window before the scheduled hearing, Mercer argued. District court rules require court hearings to occur 15 days after a filing so that all parties have an opportunity to file their responses to any new court filings prior to the hearing.
“The motion to seal is vehemently opposed by Mercer, all parties have not joined in the motion, and a motion to seal the record is not one that the law provides may be done ex parte,” stated Mercer’s memorandum.
from Second Circuit
Mercer’s recent lawsuit at district court was notable for shedding light on Brown’s sudden retirement from the Second Circuit. An Oct. 1, 2018 news report by KTBS in Shreveport detailed some of the allegations surrounding Brown’s sudden retirement from the Second Circuit. According to the news report, the Supreme Court ordered Brown to vacate the courthouse, and that Brown’s law clerk had improperly accessed computer files containing a draft of an appeal opinion.
Mercer’s petition offered comments on Brown’s retirement and the circumstances surrounding his exit from the court.
“He resigned/retired due to his trying to unduly influence a judge panel to find in favor of his friend, Hahn Williams, in a case on appeal to the Second Circuit Court of Appeal where a trial jury had found her liable for over a million dollars in damages,” stated Mercer’s Sept. 27 petition. “Based on information and belief, Judge Brown threatened and attempted to intimidate Second Circuit Judge Jeff Cox, who had also been on the Mercer panel with Judge Brown. Further, Judge Brown’s law clerk, Trina Chu at that time, was fired by the Second Circuit for making unauthorized access to case file information related to (a succession case involving Brown’s friend, Williams).”
In his lawsuit, Mercer said he came into possession of investigative reports and documents that showed the Caddo Parish Sheriff’s Office had investigated Brown’s law clerk, Chu, who allegedly accessed and copied confidential files without authorization so she could send the documents to Williams. Chu, Brown and Williams were close, according to Mercer’s lawsuit. Some of the documents allegedly copied on to Chu’s private USB drive included documents from Mercer’s original lawsuit against DOTD, he claimed.
The Second Circuit, Caddo Parish Sheriff Steve Prator and Caddo Parish District Attorney James Stewart Sr. have each filed court documents at the district court opposing Mercer’s lawsuit.
The filings by the sheriff and district attorney were at odds with documents obtained by Mercer in a public records request earlier this year that indicated the criminal investigation was closed. Though marked as closed —and therefore open to public disclosure — the sheriff and district attorney claim the investigation is open to dodge subpoenas, Mercer recently argued.
In an Oct. 16 motion to quash Mercer’s subpoenas for more documents pertaining to the criminal investigation, Prator argued the release of the records could adversely affect the prosecution of any criminal case.
Prator said he was served with a subpoena for a digital copy of all documents copied from law clerk Trina Chu’s computer, a digital copy of all documents copied from Chu’s USB storage device, as well as several specific text documents and PDF documents taken from Chu’s computer. The files requested through a subpoena formed part of his office’s investigation of Chu.
“Sheriff asserts the criminal investigative file at issue is still pending, has been delivered to the office of the Caddo Parish District Attorney, and is not subject to discovery or use as evidence at this time,” stated Prator’s motion to quash.
Prator is represented by Shreveport attorney Gary Parker.
In a similar argument, Stewart argued his office’s investigation of Chu involved all the documents requested through a subpoena. The records could not be produced because they were part of the investigation, which was closed to the public, he argued.
“Disclosing the data could impair the interview process with other witnesses not yet interviewed that would have bearing on their knowledge, intent, and credibility,” stated Stewart’s memorandum.
Assistant District Attorney Tommy Johnson filed the motion on Stewart’s behalf.
“A criminal prosecution is reasonably anticipated in due course against at least one potential criminal defendant as the criminal investigation progresses,” stated Stewart’s Nov. 21 memorandum.
According to Stewart, the sheriff’s investigation was limited to Chu, though other suspects could be developed through further investigation.
“However, the report supports the need for further investigation by the District Attorney regarding potential related criminal investigation and potential prosecution,” stated Stewart’s memorandum.
Stewart’s memorandum also contested some of the details alleged by Mercer involving the sheriff’s investigation of Chu and Brown, the judge.
“The Caddo Sheriff’s investigators did not search Judge Brown’s G: Drive and USB Drive,” stated Stewart’s memorandum. “The investigators did not question Judge Brown. Moreover, Ms. Chu adamantly denied discussing the Succession of Houston case with Judge Brown in her statement to the Caddo Sheriff’s investigator. She adamantly denied Judge Brown had ever requested she retrieve any documents for him related to the Succession of Houston file.”
Stewart questioned whether Mercer had good cause to request documents related to a separate case before the Second Circuit and argued Mercer’s request should be limited only to documents pertaining to his lawsuit against DOTD.
“The conduct of a law clerk violating the policies and procedures of the Second Circuit Court of Appeal on a completely separate case long after the conclusion of the Mercer case is not relevant to the conduct of one judge or panel of judges in the Plaintiff’s petition occurring before the hire date of the law clerk,” stated Stewart’s memorandum.
a ‘cover-up,’ Mercer says
In a memorandum opposing Prator and Stewart’s motions, Mercer pointed out he previously obtained a copy of the Sheriff’s Office report investigating Chu through a public records request. The report marked the case as “administratively closed” on June 20 because the Sheriff’s Office was unable to find enough evidence to convict Chu.
Mercer challenged Prator and Stewart’s contention that the criminal investigation was now open.
“Now, four (4) months later, suddenly the District Attorney’s Office is supposedly commencing a criminal investigation only after the subpoena had been issued by Mercer in this case,” stated Mercer’s memorandum. “Any such ‘criminal investigation’ is highly suspect, especially given the circumstances of this particular case. It appears to be little more than an attempt to cover up important and vital documents under the cloak of a ‘criminal investigation’ of Chu.”
Mercer also questioned whether Stewart could oversee an investigation or prosecution of Chu, in light of Stewart’s past experience as a Second Circuit judge for nearly 20 years. He should not prosecute a case involving Second Circuit judges with whom he served, Mercer argued.
“At a minimum, there is the appearance of impropriety in this situation,” stated Mercer’s memorandum.
In the past, Mercer objected to other alleged conflicts of interest at the Second Circuit.
In June 2017, Brown wrote the 51-page opinion reversing the jury’s unanimous money verdict. Mercer claimed Brown failed to disclose his father’s 44-year career as a DOTD engineer, including work in the same district as one of the DOTD officials sued.
EDITOR'S NOTE: A version of this news report that previously appeared in print incorrectly stated that Fourth Judicial District Court Judge Wilson Rambo had ruled against the Second Circuit Court of Appeal's motion to seal the court record in Jeff Mercer's case. Rambo has not yet ruled on the matter, though he commented on the matter briefly during last week's hearing. The Ouachita Citizen regrets the error.