Louisiana Supreme Court Justice Scott Crichton recused himself on Tuesday from the pending appeal of death row inmate David Brown in the "Angola 5" prison-guard murder case, a day after Brown's attorneys cried foul over comments the judge made about capital punishment on Shreveport talk radio.
Crichton's one-sentence "notice of self-recusal" came without explanation. It leaves the remaining six state high court justices to weigh Brown's direct appeal over his conviction and death sentence in the 1999 group beating and stabbing death of Angola State Penitentiary guard Capt. David Knapps.
Brown's attorneys filed a motion late Monday claiming Crichton's commentary in recent radio interviews raised at least the appearance of bias in the high-profile capital case.
Crichton, 63, mentioned the Angola 5 case on the KEEL morning show on Oct. 23 to illustrate his view that the death penalty can be a valuable deterrent. A former Caddo Parish prosecutor and district judge who rose to the high court bench three years ago, he agreed with a show host that "if you're in for life, you have nothing to lose" without it.
Brown was serving a life sentence for a different murder when Knapps was killed inside a bathroom at the state penitentiary.
Death row inmate in 'Angola 5' case wants La. Supreme Court justice recused over death penalty comments
Brown's attorneys argued that Crichton's mention of the Angola 5 case alone warranted his recusal. Crichton went further on the airwaves, however, and Brown's attorneys argued that his other on-air remarks also revealed potential bias in Brown's case, and perhaps in any capital case that reaches the court.
On the Oct. 23 show, Crichton first acknowledged that he "can talk about anything other than a pending case before the Louisiana Supreme Court," then mentioned the Angola 5 case. He went on to lament the lengthy appeals process in death-penalty cases and argued for well-publicized executions.
"If it's carried out and the public knows about it, I believe it's truly a deterrent," he said. "What really boggles my mind is the inmate who has committed capital murder who is on death row who is begging for his life. Think about the fact that the victim gets no due process."
Crichton also suggested a workaround to problems many states have had in acquiring one of three drugs in a commonly used "cocktail" for state killings — a shortage he blamed on drug companies being "harassed and stalked" by death-penalty opponents.
Crichton said he favors giving condemned inmates a choice in their death: the cocktail; a new method using a single drug, nitrogen hypoxia; or another, time-tested execution method.
"Firing squad is one," he said.
Brown had joined other prisoners in an escape attempt but claimed he wasn't there when Knapps was killed inside an employee restroom in the prison's Camp D building on Dec. 28, 1999. Brown helped drag Knapps there and got the victim's blood on his prison garb, but he said he'd left before other inmates killed Knapp.
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The state never accused him of striking Knapps but argued he had joined in a plot with a specific intent to kill. A West Feliciana Parish jury convicted Brown and sentenced him to death in 2011. Jeffrey Clark, the other Angola 5 member sentenced to death, lost his appeal before the Louisiana Supreme Court last year.
Crichton was among the majority in a Supreme Court decision last year that reinstated the death penalty for Brown. The court upheld an appeals court's reversal of a decision by retired Judge Jerome Winsberg to scrap Brown's death sentence but not his conviction.
Winsberg cited a statement from another inmate that Brown's trial attorneys never received. Inmate Richard Domingue claimed that Barry Edge, who also was accused in the murder, had confessed that he and Clark alone decided to kill the guard.
The withheld statement left a "reasonable probability that the jury's verdict would have been different had the evidence not been suppressed," Winsberg ruled. But the Supreme Court found that Domingue's statement "provides no additional evidence as to who actually killed Capt. Knapps" and "simply does not exculpate Brown."
The U.S. Supreme Court last year declined to hear Brown's case. His direct state appeal, a different legal phase, landed with the Louisiana Supreme Court in May.
U.S. Supreme Court declines to hear ‘Angola 5’ member David Brown’s effort to overturn death penalty
Brown's appeal brief is due before the court next month. One of his lawyers, Billy Sothern, wrote that he plans to raise several issues that Crichton alluded to on the radio. Among them: Whether a death sentence is disproportionate to Brown's role in the killing, and whether lethal injection is constitutional.
Brown's attorneys solicited an affidavit from a Northwestern University law professor, saying Crichton should recuse himself. Professor Steven Lubet, who co-authored a 2013 text called Judicial Conduct and Ethics, cited Crighton's mention of the Angola 5 case and the judge's comment on capital punishment that, "If we're gonna have it, use it."
Sothern on Tuesday declined to comment on Crichton's recusal....Read more