A St. Bernard Parish judge has thrown out two drunk-driving cases against a well-known Chalmette lawyer who had been charged for a second time in both matters this summer in an unusual effort by first-year District Attorney Perry Nicosia to undo what he described as a political favor done by his predecessor.
The attorney, John Finckbeiner Jr., who has served as an ad hoc Traffic Court judge in New Orleans, was arrested twice in 2013 by State Police. After refusing sobriety tests on both occasions, he was found through compulsory blood testing to be driving while well over the legal alcohol limit.
But in late 2014, a few hours before Nicosia was sworn into office, both DWI charges were dismissed after Finckbeiner pleaded guilty in magistrate court to traffic offenses and provided documents showing he had undergone rehabilitation treatment.
The plea deal, court records show, stemmed from an unwritten agreement Finckbeiner apparently had reached with Jack Rowley, who before his death last year had served as the parish’s top prosecutor for 35 years.
Nicosia, a former judge in St. Bernard, described the outcome of the case as technically legal yet “completely political,” adding he had never seen such a generous agreement during his years on the bench.
“Nobody could get this deal — ever,” Nicosia said in an interview last week.
One of the brightest red flags, he added, was that Finckbeiner had been arrested a second time while the first DWI charge was still pending.
Finckbeiner refused to discuss his plea agreement, saying it would be “inappropriate” to respond to the district attorney’s allegations of favorable treatment. His defense attorney, Michael Ginart, did not return a call seeking comment.
Finckbeiner pleaded guilty to careless operation and hit-and-run and no contest to speeding. The pleas were accepted Nov. 14 by Judge Robert J. Klees, a now-retired jurist who was filling in temporarily in the 34th Judicial District.
Klees, a former chief judge of the state 4th Circuit Court of Appeal, said in a telephone interview that he had no control over which charges Rowley’s office dismissed, and he noted that Finckbeiner “had a lot of hoops to jump through to get this particular deal.”
“I had no problem handling (the case) in the sense that everything that was required by the DA the man did,” Klees said. “I don’t tell the DA how, where or when to prosecute — that’s his job. My job was to see that justice was done, and, as far as I could tell, this was a normal way of handling matters.”
Nicosia’s office, which was alerted to the case by the Metropolitan Crime Commission, a local watchdog group, refiled both DWI charges against Finckbeiner out of “an abundance of caution.” Prosecutors knew the charges might not stick but said they weren’t initially convinced Finckbeiner’s plea agreement had been valid.
“On its face, it just didn’t pass muster,” Assistant District Attorney Lance Licciardi said. “It appeared fishy — the timing of it and the agreement to dismiss two DWIs at one time.”
Finckbeiner filed a motion to quash the reintroduced charges, saying they flew in the face of both his plea agreement and the U.S. Constitution’s ban on double jeopardy, which protects defendants from being prosecuted twice for the same crime.
Judge Jeanne Nunez Juneau granted the motion after reviewing transcripts of Finckbeiner’s guilty plea hearing. She said Thursday that the new charges had to be dismissed to ensure equal treatment under the law and “a degree of confidence in the proceedings in this court.”
“The ruling speaks for itself,” Finckbeiner said.
Nicosia — who won his office last year in part by highlighting the rampant rate of dismissals under Rowley — did not disagree with Juneau’s ruling but said it underscored the limitations he faces in bringing back charges inexplicably reduced or dismissed during the Rowley administration.
He and Licciardi said thousands of charges, including serious felonies, were thrown out due to an apparent aversion to going to trial — a claim rejected as a “damned lie” by Glenn Diaz, a former assistant district attorney under Rowley.
In some cases, Licciardi said, “they might have dismissed a distribution of heroin (charge) and let you plead to speeding.” In reviewing older cases, he added, “We’ve seen (people accused of) aggravated sexual batteries or rapes, forcible rapes, plead to simple batteries.”
Anthony Radosti, vice president of the Crime Commission, said the dismissals highlighted the freewheeling manner in which the St. Bernard Parish District Attorney’s Office operated for years — an approach he described as “not in conformity with any rules and regulations that standard prosecutors would have used.”
He requested Nicosia’s office audit all of the felony and DWI cases dismissed during the final three months of the Rowley administration.
“Finckbeiner was given a sweetheart deal that I doubt anybody else in St. Bernard Parish would have qualified for,” Radosti said. “They basically gave away the ballpark, and there was no reason for that.”
The DWI charges have not affected Finckbeiner’s standing with the state bar, at least for now. The Louisiana Attorney Disciplinary Board has not filed formal charges in the matter, said Chuck Plattsmier, the state’s chief disciplinary counsel.
Odor of alcohol
Finckbeiner’s first arrest happened the night of Feb. 26, 2013, after he was involved in a minor crash involving negligible damage near the Chalmette Battlefield. State Police said he struck the back of a vehicle at a red light on West St. Bernard Highway and then left the scene. The driver of the vehicle called 911 and followed Finckbeiner’s Mercedes, taking down the license plate number.
Trooper 1st Class Larry Mayes spotted Finckbeiner on East Judge Perez Drive and pulled him over as he turned onto Palmisano Boulevard. Mayes, in his police report, wrote that he could tell from the onset that Finckbeiner was impaired, noting that he had bloodshot eyes and “spread his feet apart to keep his balance.”
“Finckbeiner spoke with a slurred speech, stuttering several times, and had a moderate to strong odor of an unknown alcoholic beverage on his breath,” Mayes wrote.
Finckbeiner denied being involved in a crash, according to the report, but acknowledged having some wine before saying he actually hadn’t. At one point, the report says, Finckbeiner told the trooper that they were friends.
“I did not recognize Finckbeiner and asked him how we knew each other,” Mayes wrote. “He stated that he was a lawyer in St. Bernard and knew me from the courthouse and his clients.”
Finckbeiner refused a field sobriety test and was taken into custody. He also would not submit to a Breathalyzer test, prompting the trooper to obtain a warrant to draw Finckbeiner’s blood.
The blood, drawn more than two hours after the arrest, put Finckbeiner’s blood-alcohol content at 0.17 — more than twice the legal limit of 0.08.
The same trooper pulled Finckbeiner over on Dec. 3, 2013, after receiving a similar complaint of a Mercedes driving erratically. Finckbeiner again appeared to be intoxicated, Mayes wrote in a report, exhibiting a “slight body sway” as he stepped out of his car in a shopping center on West Judge Perez Drive.
He said Finckbeiner handed the trooper a St. Bernard Parish Sheriff’s Office commission card in lieu of his suspended driver’s license and claimed he had not been drinking.
Another compulsory blood test put his blood-alcohol content over the legal limit at 0.14, according to State Police records.
“The district attorney’s job is to protect the people of the community,” Radosti said. “The prior administration failed in that duty.”
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