A divided federal appellate court panel refused to revive a Baton Rouge woman's lawsuit against a local prosecutor for allegedly failing to adequately pursue her claims that an Angola deputy warden raped her several times in 2016.

The 5th U.S. Circuit Court of Appeals panel on Tuesday acknowledged, however, that the allegations of sexual assault and prosecutorial misconduct are horrifying.

The case has drawn national attention, particularly after three retired federal judges took the highly unusual step of intervening in the case in March, saying a three-judge 5th Circuit panel made a "mistake" in February when it unanimously dismissed Priscilla Lefebure's lawsuit against 20th Judicial District Attorney Sam D'Aquilla.

Lefebure, her attorney and the retired judges asked the entire 5th Circuit to rehear the case. The request is called a petition for rehearing en banc.

The original three-judge panel voted 2-1 on Tuesday not to rehear it. Circuit Judge James Ho, a member of that panel, noted that no member of the panel nor judge in regular active service of the court requested that the court be polled on the en banc rehearing petition. So he said the en banc request was denied as well. 

Lefebure's attorney, Jack Rutherford, said they will take their case to the U.S. Supreme Court.

"While we are disappointed with the ruling, we are not done," Rutherford said.

Asked if he cared to make a statement, D'Aquilla emailed: "Yes good news but no need to comment at this time."

Circuit Judge James Graves Jr., who cast one of the three votes against Lefebure earlier this year, changed course and offered the lone dissent Tuesday.

"Lefebure raises that prototypical equal protection claim, centered on the injuries she alleges resulted from a discriminatory failure to enforce the law when it comes to rape cases," Graves wrote. "A right to be free from discriminatory law enforcement policies that enable crime is distinct from an affirmative right to prosecution.

"As the injury Lefebure asserts is one caused by a policy of discrimination, it implicates the chief original concern of equal protection," he stated. "This is an injury she has standing to vindicate."

Graves added that failure-to-protect claims such as Lefebure's "guard against the dangerous and discriminatory underenforcement of the law based on a victim's status."

"Although it might be difficult for Lefebure to ultimately prove on the merits that the district attorney's policy, custom, or practice played a role in her assault, she does have standing to pursue such a claim," he wrote.

The two-judge majority on the panel disagreed, however, saying both Lefebure and the three retired federal judges "suggest that we should collapse this distinction between the failure to prosecute and the failure to protect — between the failure of police to protect the plaintiff from future crime and the failure of prosecutors to put a third party in jail for past crime."

"To be sure, their reasoning is certainly understandable: If word were to get out that a district attorney categorically refuses to prosecute a certain type of crime, or will not prosecute crimes committed against a certain victim demographic, that would surely lead to greater criminal activity of that kind," wrote Ho, who was joined by 5th Circuit Chief Judge Priscilla Owen.

"So we do not doubt the underlying premise: Less police, more crime. Likewise, less prosecution, more crime. Unquestionably, the denial of prosecution may very well be tantamount to a denial of protection," he added.

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But Ho said the appeals court has "no authority to take Lefebure's premise where she wants it to go" because the U.S. Supreme Court has "made clear … that any connection between a non-prosecution policy and subsequent criminal activity is too 'speculative' to support standing."

"We are horrified by the allegations in this case — the repeated acts of rape and sexual assault, followed by grotesque acts of prosecutorial misconduct. But we have no authority to overturn Supreme Court precedent," he wrote. "If we are to take seriously our obligation to follow Supreme Court precedent, whether we like it or not, then we must conclude that Lefebure lacks standing to sue D'Aquilla. As the adage goes, a principle is not a principle until it costs you."

Lefebure alleges D'Aquilla failed to adequately pursue rape charges against then-Angola assistant warden Barrett Boeker. Lefebure had sought refuge at Boeker's home after the 2016 floods forced her from her Baton Rouge home. She is a cousin of Boeker's wife and children.

The retired federal judges who had asked the New Orleans-based 5th Circuit to rehear the case are former 9th U.S. Circuit Court of Appeals Judge Alex Kozinski and ex-U.S. District Judges F.A. Little Jr., of Louisiana, and Michael Mukasey, of New York. Mukasey was the nation's attorney general during the last 14 months of President George W. Bush's term.

Following the 5th Circuit panel's February ruling against Lefebure, the former judges said the ruling eliminated "an entire class of law enforcement-related equal protection claims, just as our national dialogue over discriminatory law enforcement has begun."

"Like the panel judges, we are sickened by the conduct of local law enforcement in this case," they wrote in March.

"It shocks any semblance of a decent sensibility that there are places left in America where a sheriff and district attorney routinely fail to collect and process rape kits, where an assailant's 'we got a little rough' is accepted at face value by law enforcement, where the victim is the one investigated, and where the well-connected can avoid spending even a night in jail after being arrested on suspicion of the most depraved conduct," the ex-judges said.

A West Feliciana Parish grand jury looked at evidence in 2017, but D'Aquilla didn't give the jurors access to a "rape kit" or a report compiled by a hospital nurse.

D'Aquilla has said the grand jury didn't need to examine results of Lefebure's sexual assault examination because both the victim and the perpetrator said sexual intercourse had occurred. He said the pertinent question in the case was consent, which could not be determined by the rape kit evidence.

Boeker and Lefebure each testified before the grand jury, and the lawsuit says Boeker is the only one who claimed Lefebure consented. Rutherford told the 5th Circuit that the encounters were not consensual.

Lefebure's lawsuit, filed in late 2017, alleges that neither D'Aquilla nor anyone from his office ever met or spoke with her about the alleged rape, and that the district attorney told reporters he was "uncomfortable" speaking with her.

Boeker's attorney, Cy D'Aquila, a distant relative of the district attorney, has said previously that Boeker insists the sex was consensual, and he passed a privately administered polygraph examination on that point.

Lefebure has claims pending against Boeker in federal district court.

The Advocate typically does not name people who report they are victims of sexual assault, but Lefebure said previously she wants to use her name.

Boeker was placed on administrative leave following the rape allegation but later returned to work at the prison. He was fired last year after spraying an inmate with a fire extinguisher. He is facing felony criminal charges stemming from that incident.


Email Joe Gyan Jr. at jgyan@theadvocate.com.