STATE OF LOUISIANA VERSUS AMANDA GUTWEILER AKA AMANDA HYPES

• Court: Louisiana Court of Appeal
• Decided: September 27, 2006
• Docket: KA-0006-0561
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

KA 06-561

STATE OF LOUISIANA

VERSUS

AMANDA GUTWEILER AKA AMANDA HYPES

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 265037 HONORABLE DONALD THADDEUS JOHNSON, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Oswald A. Decuir, Marc T. Amy, and Billy Howard Ezell, Judges.

AFFIRMED.

Ellis Paul Adams, Jr. Louisiana District Attorney’s Association 1645 Nicholson Drive Baton Rouge, LA 70802 (225) 343-0171 Counsel for Other: District Attorneys of the State of Louisiana James C. Downs District Attorney - Ninth Judicial District Court 701 Murray Street Alexandria, LA 71301 (318) 473-6650 Counsel for Plaintiff/Appellant: State of Louisiana

James Michael Small Attorney at Law P. O. Box 1470 Alexandria, LA 71309 (318) 487-8963 Counsel for Defendant/Appellee: Amanda Gutweiler

Thomas George Walsh Assistant District Attorney Ninth Judicial District Court P. O. Drawer 1472 Alexandria, LA 71309 (318) 473-6650 Counsel for Plaintiff/Appellant: State of Louisiana EZELL, JUDGE.

On April 30, 2002, the Rapides Parish Grand Jury indicted Defendant, Amanda

M. Gutweiler also known as Amanda Hypes, with three counts of first degree murder,

in violation of La.R.S. 14:30. Defendant was accused of murdering her three children

by setting fire to the residence they were occupying. Defendant pled not guilty to all

charges at her arraignment held on May 3, 2002. After her arraignment, Defendant

filed several pre-trial motions, and the district court conducted hearings and ruled on

most of them over the next four years.

On February 7, 2006, Defendant filed a “Motion to Compel Disclosure of

Information Regarding Grand Jury Proceedings” (motion to compel) with the trial

court. In the motion to compel, the defense alleged that the assistant district attorney

had confirmed, on February 3, 2006, that he had released grand jury testimony to the

State’s key forensic witness. Defendant argued that this violated La.Code Crim.P.

arts. 431 and 434, and she asked the trial court to compel the State to enumerate, with

particularity, the names of all people to whom the prosecution had disclosed grand

jury testimony or materials. On February 10, 2006, the prosecution answered

Defendant’s motion to compel. On February 22, 2006, the district court granted

Defendant’s motion to compel insofar as to order the State to provide Defendant with

a copy of all of the grand jury materials it had given to its expert witness, but it denied

all other requested relief.

On March 8, 2006, Defendant filed a “Motion to Quash Indictment and for

Other Relief with Incorporated Memorandum of Authorities,” (motion to quash) with

the trial court. In the motion to quash, the defense argued that the prosecution had

violated the laws pertaining to grand jury secrecy. On March 15, 2006, Defendant

filed a “Motion for Contradictory Hearing and for Issuance of Subpoenas Instanter

1 for Assistant District Attorneys and Former Assistant District Attorney” (motion for

subpoenas). The prosecution responded to Defendant’s motion for subpoenas on the

same date by filing its “State’s Motion to Quash Issuance of Subpoenas for

Attorneys-at-Law” and its “Answer with Incorporated Memorandum of Authorities

to Defendant’s Motion to Quash Indictment and for Other Relief with Incorporated

Memorandum of Authorities.” The district court conducted a hearing on the motion

to quash on March 16, 2006; and at the conclusion of the hearing, the trial court

requested the submission of supplemental briefs.

On March 24, 2006, the defense filed “Defendant’s Sealed Memorandum in

Support of Motion to Quash.” On the same date, the prosecution filed a “Motion to

Show Compelling Necessity for the Release of Grand Jury Information as Mandated

by In Re: Grand Jury, 98-2277 (La. 4/13/99)[,] 737 So.2d 1, with Incorporated

Authorities” (motion to show necessity). On March 27, 2006, the district court

denied the prosecution’s motion to show necessity, holding that the motion was

untimely filed because it should have been filed prior to the disclosure of the grand

jury testimony. The day after the trial court denied the prosecution’s motion to show

necessity, the defense filed “Defendant’s Opposition to State’s Motion to Show

Compelling Necessity for the Release of Grand Jury Information.” On March 30,

2006, the State filed its “State’s Brief with Incorporated Memorandum of Authorities

in Opposition to Defendant’s Motion to Quash Indictment and for Other Relief with

Incorporated Memorandum of Authorities” (State’s opposition). The trial court

granted Defendant’s motion to quash on April 6, 2006. Several days later, on April

10, 2006, the district court ordered all pending motions to be continued without date.

The prosecution now appeals the trial court’s grant of the motion to quash,

incorporating and supplementing the arguments made in the State’s opposition. The

2 State filed a request for expedited consideration with its appeal, which this court

denied on May 4, 2006.

For the reasons assigned, we affirm the district court’s ruling.

FACTS

These facts were stipulated to in connection with the motion to quash. At the

direction of an assistant district attorney, Mr. Thomas Walsh, the State, on April 11,

2002, provided a transcript of Courtney Thomas’ November 8, 2001 grand jury

testimony to Dr. John DeHaan, an expert employed by the State to investigate the

cause and origin of the fire. Mr. Walsh did not first obtain a court order or other

judicial authorization prior to ordering the release of Ms. Thomas’ grand jury

testimony.

On April 25, 2002, Dr. DeHaan testified before the grand jury, and five days

later, the grand jury returned an indictment charging Defendant with three counts of

first degree murder. The prosecution allowed Dr. DeHaan access to Ms. Thomas’

grand jury testimony in order for Dr. DeHaan to obtain a complete understanding of

the home’s fuel load, the contents of the house, in order to state an opinion of and

answer any questions pertaining to the cause and origin of the fire. Dr. DeHaan

reviewed Ms. Thomas’ grand jury testimony as well as a police statement given by

Ms. Thomas concerning the furnishings of the residence prior to giving his own

testimony before the grand jury. At the time Dr. DeHaan testified, the grand jury had

been convened for approximately six months.

After the indictment in September or October 2005, the prosecution also

provided the grand jury transcripts of Dalley, Iris, and Shanna Maynard to Detective

Bobby Sandoval,1 who is the State’s lead investigator in the case. Detective Sandoval

1 The joint stipulation refers to Bobby Sandoval as a detective, but the State’s brief refers to (continued...)

3 was to investigate whether these witnesses had committed perjury. Mr. Walsh did not

obtain a court order or other judicial authorization permitting the release of these

transcripts to Detective Sandoval.

Upon motion by Defendant, the State also provided copies of Dalley, Iris, and

Shanna Maynard’s grand jury testimony to Defendant on August 12, 2005 to satisfy

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), obligations; otherwise, the

prosecution has not released any other grand jury testimony. The State has not

provided Defendant with a copy of Ms. Thomas’ grand jury transcript.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. We note that the present appeal, unlike most

appeals, was filed by the State rather than Defendant. We find that La.Code Crim.P.

art. 920, read literally, requires an error patent review in all appeals. Thus, we

reviewed the present record for errors patent. After reviewing the record, we find

there are no errors patent.

ASSIGNMENT OF ERRORS NUMBERS ONE & TWO

The State argues that the trial court erred in granting the motion to quash. The

State also contends that the trial court erred when it excluded Dr. DeHaan and

Detective Sandoval from ever testifying in this case or in any future grand jury

proceeding or prosecution of Defendant.

DEFENDANT’S ARGUMENT IN FAVOR OF HER MOTION TO QUASH

Defendant moved to quash the indictment based on a violation of grand jury

secrecy, which is instituted by La.Const. art. V, § 34 and regulated by La.Code

1 (...continued) him as a Captain, so he was probably promoted at some point prior to the appeal. For consistency, this opinion will refer to him as “Detective Sandoval.”

4 Crim.P. arts. 431, 434, 440-41, and State v. Revere, 232 La. 184, 94 So.2d 25 (1957).

Defendant contends that, although this is not set out by La.Code Crim.P. art. 531, et

seq., as a specific ground for quashing the indictment, La.Code Crim.P. art. 531, et

seq., is merely illustrative as the Supreme Court has stated that an indictment can be

quashed for violation of grand jury secrecy. United States v. Williams, 504 U.S. 36,

46, 112 S.Ct. 1735(1992); Bank of Nova Scotia v. United States, 487 U.S. 250, 108

S.Ct. 2369 (1988); United States v. Mechanik, 475 U.S. 66, 74, 106 S.Ct. 938, 943

(1986) State v. Cooper, 449 So.2d 1376 (La.App. 2 Cir. 1984); State v. Reaves, 376

So.2d 136 (La.1979) (stating if the legislature has not specifically provided a method

for raising an objection, it is properly brought by motion to quash). Because the

accused has the right to have a grand jury conducted in accordance with law,

Defendant was not required to demonstrate prejudice in order to have the indictment

quashed based on violation of grand jury secrecy. People v. Minet, 296 N.Y. 315, 73

N.E.2d 529 (1947). The inconvenience caused by quashing the indictment would be

temporary; whereas, the injustice caused by the refusal to quash the indictment would

last in perpetuity because it could not be cured by a subsequent fair trial. Vasquez v.

Hillery, 474 U.S. 254, 106 S.Ct. 617(1986); Revere, 94 So.2d 25. Defendant insisted

that quashing the indictment is the only adequate remedy in the instant case.

Defendant maintains that the grand jury’s failure to return an indictment before

hearing Dr. DeHaan’s testimony, which was based in part on Ms. Thomas’ grand jury

testimony, and that the grand jury’s subsequent indictment of Defendant almost

immediately after Dr. DeHaan’s interview was greatly significant. Defendant points

out that, as early as its decision in State v. Hopkins, 115 La. 786, 40 So. 166 (1906),

the Louisiana Supreme Court had applied the grand jury secrecy rule to the district

attorney, the courts, and the defense. The supreme court has consistently applied the

5 grand jury secrecy rule to both the prosecution and the courts since the Hopkins

decision. In re Matter Under Investigation Grand Jury No. 1, 04-672 (La. 5/14/04),

875 So.2d 33 (holding the trial court erred in ordering the transcription of grand jury

proceedings so that it could intervene in the operations of the grand jury); In Re

Grand Jury, 98-2277 (La. 4/13/99), 737 So.2d 1 (maintaining that government

attorneys are required to show compelling necessity in order to obtain disclosure of

grand jury materials). Defendant urges that the prosecutor’s disclosure of grand jury

testimony violated a specific duty to protect grand jury secrecy because his disclosure

did not fit within the exceptions listed in La.Code Crim.P. art. 434.

In determining whether grand jury materials should be disclosed, the Louisiana

Supreme Court has followed the test set out in United States v. Procter & Gamble

Company, 356 U.S. 677, 78 S.Ct. 983 (1958), which allows the breach of grand jury

secrecy only when the party moving for the disclosure limits the request narrowly to

the portion needed and shows, with particularity, that there is a compelling necessity

outweighing the need for secrecy. State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d

1219, cert. denied, ___ U.S. ___, 126 S.Ct. 182 (2005); State v. Trosclair, 443 So.2d

1098 (La.1984). In the instant case, the prosecution released the information without

first seeking the trial court’s permission, thereby violating grand jury secrecy.

Defendant further asserts that, in disclosing the grand jury testimony without

following the proper procedure, the prosecutor violated his mandatory duty to

conform to the oath of office set out in La.Const. art. X, § 30 by obstructing the grand

jury from performing its lawful duties. State v. Perez, 464 So.2d 737 (La.1985).

Under State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied,

06-186 (La. 6/23/06), 930 So.2d 973, remedies for prosecutorial misconduct should

be tailored to the injuries; therefore, in addition to moving to quash the indictment,

6 Defendant asked the trial court to preclude both witnesses who had received the grand

jury materials from ever again testifying in the prosecution of the charged offenses

because the witnesses, having studied the materials, could no longer testify as if they

had not seen the information.

STATE’S ARGUMENT AGAINST THE MOTION TO QUASH

The State argues that quashing the indictment was inappropriate because the

finding of constructive contempt as set out in La.Code Crim.P. art. 434 is the sole

remedy for a violation of grand jury secrecy. The prosecution alleges that reliance

on Revere, which predated the current statutes, was misguided because, when Revere,

94 So.2d 25, was decided, defendants had no rights to discovery of exculpatory

evidence, there were no legal provisions governing the testimony of an accused

before a grand jury, and the conduct complained of in Revere falls under La.Code

Crim.P. art. 533(3) instead of La.Code Crim.P. art. 434. The State urges that the

quashing of the indictment for grand jury related issues should be limited to the

grounds set forth in La.Code Crim.P. art. 533.

The State further asserts that it was not in violation of Louisiana’s grand jury

secrecy provisions. The prosecution claims that it was able to disclose grand jury

materials to government personnel and other grand jury witnesses without first

obtaining a court order. The State avers that it gave adequate notice of the disclosure

by sending a letter to the trial court. The prosecution maintains that the discussions

found in Trosclair, 443 So.2d 1098, and Higgins, 898 So.2d 1219, are distinguishable

from the current situation because, unlike the instant situation, both Trosclair and

Higgins concern the disclosure of Brady materials. The State also distinguishes the

discussion found in Vasquez, 106 S.Ct. 617, from the instant case; Vasquez addressed

discrimination in the selection of the individual grand jury members. The prosecution

7 alleges that no violation of grand jury secrecy occurred because the materials were

only provided to people who had been sworn to secrecy in accordance with La.Code

Crim.P. art. 440.2

In the event that this court finds that there was a violation of grand jury

secrecy, the State suggests that this court apply the federal system by requiring

Defendant to show prejudice before the indictment may be dismissed. Bank of Nova

Scotia, 108 S.Ct. 2369 (stating that the defendant must demonstrate prejudice in order

to obtain dismissal of an indictment based on prosecutorial misconduct). The

Louisiana Supreme Court has recognized that “[t]he policy of maintaining the secrecy

of grand jury proceedings has been codified in Rule 6(e) of the Federal Rules of

Criminal Procedure.” In Re Grand Jury, 737 So.2d at 6.

The State argues that the trial court erred in implicitly holding that Dr.

DeHaan’s use of Ms.Thomas’ testimony unduly influenced the jury. The State alleges

that Defendant failed to prove prejudice caused by the disclosure to Dr. DeHaan

because she did not show that Dr. DeHaan actually used Ms. Thomas’ testimony

when he presented his own evidence before the grand jury. The prosecution also

points out that, in Mechanik, 106 S.Ct. 938, the United States Supreme Court refused

to quash an indictment for violation of grand jury secrecy when two witnesses

testified in tandem before the grand jury. State v. Walker, 567 So.2d 581 (La.1990)

(providing that a defendant generally has no right to challenge an indictment for

illegality of evidence; harmless-error analysis is used in determining whether to

quash an indictment based on prosecutorial misconduct before the grand jury).

2 The prosecutor gave Ms. Thomas’ grand jury transcript to Dr. DeHaan a week prior to his own grand jury testimony. The record is unclear as to whether the prosecutor administered the grand jury secrecy oath to Dr. DeHaan prior to giving him the information.

8 The State suggests that this court should interpret the exception found in Fed.

R. Crim. P. 6(e), which allows disclosure of grand jury material to non-testifying

governmental personnel, as applying to testifying government witnesses and

personnel. The State claims that, as the State’s chief forensic arson expert, Dr.

DeHaan should be entitled to examine all available evidence due to his exemption

from sequestration, even though the rules of evidence do not apply to grand jury

hearings. La.Code Evid. arts. 615, 702, 1101. The prosecution declares that keeping

an expert witness from evaluating previously submitted evidence in preparation for

his grand jury testimony would frustrate the true mission of the grand jury as an

investigatory body. The State avers that this is especially true when the evidence

used is “colorable” because the prosecution would not want the expert to

inadvertently mislead the grand jury.3

The prosecution asks this court to weigh the damage to its case against the

harm done by the disclosure. The State, without giving specifics, argues that its case

against Defendant would be greatly prejudiced if Dr. DeHaan was prevented from

giving further testimony. In comparison, the disclosure did not actually cause much

harm because Dr. DeHaan had already reviewed Ms. Thomas’ police statement and

the State’s case investigation file prior to examining her grand jury testimony.

The prosecution also alleges that its disclosure of the three witnesses’

testimony to Detective Sandoval should not be the basis for quashing the indictment

or preventing him from giving future testimony. The State provided the transcripts

to Detective Sandoval for investigation of perjury suspicions approximately three and

a half years after the grand jury returned the indictment. The prosecution contends

that the information was provided specifically to Detective Sandoval because he was

3 The State uses “colorable” to refer to information that can be used persuasively by either party to make their arguments.

9 already the chief investigator in Defendant’s case. The State maintains that no harm

was done by this disclosure because the testimony contained in those transcripts had

previously been provided to Defendant in order to satisfy the State’s Brady

obligations. The prosecution also urges that, once grand jury testimony has been

released to the defense under Brady, all “colorable” testimony should be made

available to be used by the State’s experts in creating opinions.

The prosecution adds extra arguments not related to grand jury secrecy.

Classifying Dr. DeHaan’s use of grand jury materials gained from its unauthorized

disclosure as illegal evidence, the State argues that illegal evidence presented before

the grand jury is not a basis for quashing the indictment under La.Code Crim.P. arts.

442, 443; United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974); Fed. R.

Crim. P. 6(a).

In conclusion, the prosecution maintains that quashing the indictment was an

inappropriate remedy. Instead, the State asked this court to consider alternative

remedies: (1) deny Defendant’s motion, holding that the prosecution did not violate

La.Code Crim.P. art. 434; (2) deny the motion but admonish the State to insure

correct action in the future, holding that the defense failed to demonstrate prejudice;

(3) deny the motion but order a compelling necessity hearing in accordance with In

Re Grand Jury; (4) deny the motion but provide the grand jury transcripts to the

defense under the principles of equity; or (5) deny the motion and institute

constructive contempt proceedings against the responsible State attorney under the

provisions of La.Code Crim.P. art. 434.

DEFENDANT’S REBUTTAL

Defendant responds that the State’s arguments are illogical and defy justice.

Defendant alleges that Louisiana law does not provide an exception to grand jury

10 secrecy for expert witnesses even though, at trial, expert witnesses are exempt from

sequestration. Defendant alleges that the grand jury could have fulfilled its function

just as well had the prosecution used legal means to obtain the information such as

the review of Ms. Thomas’ police statement and a personal interview to obtain

information missing from the statement.

Defendant replies to the prosecution’s contention that its actions fit within an

exception listed under Fed. R. Crim. P. 6 by stating that Louisiana never adopted that

exception; and, even if Louisiana had adopted the exception, the prosecution’s

actions still would not have fit the parameters of that exception because neither of the

witnesses receiving the grand jury testimony could be classified as “governmental

personnel.” The defense also points out that, in applying Fed. R. Crim. P. 6, the only

notice ever given of the disclosure was a letter sent to the trial court nearly four years

after the information had been divulged. Defendant argues that the trial court

recognized the inapplicability of Fed. R. Crim. P. 6 when it declined to allow the

State to introduce into evidence materials related thereto at the hearing on the motion

to quash.

Defendant also answers the prosecution’s assertion that the defense should

have been made to demonstrate prejudice before the indictment could be quashed.

Defendant urges that the test for determining such prejudice is set out in Bank of

Nova Scotia, 108 S.Ct. 2369, which restricts its application to non-constitutional

errors and does not apply to fundamental error cases. Under La.Const. art. V, § 34,

the violation of grand jury secrecy is a constitutional defect, which means that a

subsequent fair trial cannot cure the taint under Vasquez, 106 S.Ct. 617.

11 THE TRIAL COURT’S RULING

The district court issued written reasons for granting the motion to quash. In

its reasons, the trial court held that La.Code Crim.P. art. 434 only applied to people,

who by law or employment duty, are directly associated with the grand jury

proceedings and that Dr. DeHaan’s status as an expert witness did not qualify him for

general access to information from the grand jury proceedings. The district court

found that the only difference between the instant case and the scenario discussed in

Mechanik was that the witness was given a transcript of another witness’s testimony

rather than being allowed to hear it. The trial court held that, in addition to providing

the information the State alleged was necessary for Dr. DeHaan to formulate an

opinion, the transcript also allowed Dr. DeHaan, without court approval, “to review

a word-for-word soliloquy of what took place in the grand jury proceedings.”

The trial court observed that, under Fund for Constitutional Government v.

National Archives and Records Service, 656 F.2d 856 (D.C.Cir. 1981), the test for

determining whether disclosure of information would violate Fed. R. Crim. P. 6(e)

depended on whether the revelation would reveal what was before the grand jury.

The district court opined that the release of the transcript when other fair and legal

options existed violated both the Louisiana Constitution and La.Code Crim.P. art.

434. The trial court agreed with Defendant that the protection of grand jury secrecy

in Louisiana is greater than that required by the federal system because Louisiana’s

grand jury secrecy is constitutionally mandated, because Louisiana did not adopt the

exceptions listed in Fed. R. Crim. P. 6, and because, even had the exceptions applied,

they would not legitimate the secrecy violation complained of in the instant case.

The trial court pointed out that, even had Fed. R. Crim. P. 6(e) been adopted

by Louisiana, it would not apply to the instant situation because Fed. R. Crim. P. 6(e)

12 created an exception for non-testifying governmental personnel necessary to assist

in performing a government attorney’s duty to enforce federal criminal law; whereas,

Dr. DeHaan was a testifying witness. Moreover, Fed. R. Crim. P. 6(e)(3)(D) requires

the governmental attorney to provide notice within a reasonable time after the

disclosure was made, which the prosecution did not do in this case because the

earliest arguable notice was given to Judge Yeager on February 17, 2006, which was

just under four years after the April 11, 2002 disclosure.

The trial court found differences between the disclosure made to Dr. DeHaan

and that made to Detective Bobby Sandoval. Whereas, Courtney Thomas’ transcript

was released to Dr. DeHaan prior to his testimony, the transcripts of Dally, Iris, and

Shannon Maynard were released to Detective Sandoval approximately three and a

half years after the grand jury indicted Defendant. The purpose of the disclosure to

Detective Sandoval was for the investigation of the separate and distinct crime of

perjury; whereas, Dr. DeHaan reviewed Ms. Thomas’ transcript in reference to the

crimes charged in the instant case. The trial court declared that, although La.Code

Crim.P. art. 434 allows the disclosure of grand jury testimony for the investigation

of perjury, the article only provided for the disclosure when permitted by the court,

and the prosecution released the testimony without first obtaining permission of the

court.

The trial court next found that, under La.Code Crim.P. art. 434, it was required

to find Mr. Walsh in constructive contempt of court, which would require it to set a

show cause hearing pending appellate review of its judgment. The district court

noted that La.Code Crim.P. art. 533, which provided the grounds for quashing a grand

jury indictment, did not specifically encompass the instant scenario. The trial court

went on to state that it would have been impossible for the legislature to foresee every

13 possible scenario before enacting the statute, especially the scenario presented herein.

The district court pointed out that Defendant had filed her pleading as a motion

to quash under La.Code Crim.P. art. 531. The trial court then held that, under

Mechanik, 106 S.Ct. 938; Williams, 112 S.Ct. 1735; and Bank of Nova Scotia, 108

S.Ct. 2369, quashing the indictment was the only remedy available to Defendant to

cure the violation of her constitutional right to secret grand jury proceedings. The

trial court, noting that it was unsure whether prejudice had occurred, found that it

could not require Defendant to demonstrate prejudice in order to obtain relief,

especially as this was a capital case. The district court next granted Defendant’s

request to preclude the State from using the testimony of Dr. DeHaan, Detective

Sandoval, and any other witness who had access to the grand jury proceedings in any

future grand jury proceeding or prosecution of Defendant. The trial court reasoned

that the damage had already been done; Dr. DeHaan and Detective Sandoval had

already been influenced by the other testimony.

The district court cited to Trosclair, 443 So.2d 1098, for the reasons behind

grand jury secrecy and stated that it expected the prosecution to proceed according

to law, especially in a case where the State was seeking the death penalty. The trial

court explained that the prosecution could have acted within the law by moving the

court for permission to release the information or by simply requiring Dr. DeHaan to

testify based on his investigation file.

The district court then granted Defendant’s motion to quash; excluded Dr.

DeHaan and Detective Sandoval from testifying at any future grand jury proceeding

or prosecution of Defendant; and ordered that, upon completion of appellate review,

the State’s attorney responsible for the release of the information would be required

14 to show cause why he should not be held in constructive contempt of court under

La.Code Crim.P. art. 434.

DISCUSSION

Although both Defendant and the State included arguments discussing what

test should be used in determining whether an indictment may be quashed for

illegality of evidence and for prosecutorial misconduct before the grand jury, those

arguments are irrelevant to the issue at hand. The issue at hand is solely what test

should be used in determining whether to quash the indictment based on an alleged

breach of grand jury secrecy. Because there are no cases directly on point, we will

examine grand jury secrecy in general and several cases with factual scenarios that

are analogous to the case before the court.

The United States Supreme Court has examined the issue of grand jury secrecy.

In Procter & Gamble Company, 78 S.Ct. at 986, the Supreme Court stated that the

indispensable secrecy of grand jury proceedings must not be broken without

compelling necessity. The compelling necessity must be shown with particularity and

outweigh the countervailing policy. Id. Preventing delay and cutting costs are not

sufficient grounds to pierce grand jury secrecy; the party seeking disclosure must

show that, if denied the request, injustice would be done. Id.

In Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. at 218, 99 S.Ct.

at 1672, the Supreme Court stated that the proper functioning of the grand jury

depends upon the secrecy of the proceedings. The Supreme Court discussed the

reasons why the courts have been reluctant to impinge on grand jury secrecy: (1) it

prevents hesitancy by witnesses who, in public proceedings, would be aware that the

person under investigation would know the contents of the witnesses’ testimony; (2)

it aids the witnesses in testifying fully; (3) it prevents retribution and inducements;

15 (4) it prevents flight by those under investigation; (5) it prevents those under

investigation from attempting to sway the votes of individual grand jurors; and (6) it

protects the reputation of those investigated but not indicted. Id. The Supreme Court,

however, concluded that, in some situations, discrete, limited portions of transcripts

may be made available for use in subsequent proceedings if the party seeking the

information shows, with particularity, that there would be great prejudice without the

information, that injustice would occur, that the need for disclosure is greater than the

need for secrecy, and that the request is tailored to cover only the necessary materials.

Id. This showing is required even after the conclusion of the grand jury proceedings.

Id. Courts are bound to weigh the competing interests of preserving grand jury

secrecy and of preventing injustice in light of relevant circumstances. Id.

In Mechanik, 106 S.Ct. 938, the Supreme Court upheld a defendant’s

conviction where two grand jury witnesses were allowed to testify in tandem;

however, the court explained that the witnesses had each given exactly the same

testimony separately in a prior grand jury investigation. Justice O’Connor concurred

and explained that, much like a situation wherein the prosecution remained in the

grand jury room during deliberations, the government would have been in violation

of grand jury secrecy provisions if all witnesses had been present in the room while

the others testified in order to keep the testimony consistent. Id. Justice O’Connor

declared that, in such a situation, the prosecution would have hindered the grand

jury’s duty to uncover the truth. Id. Under the Federal Rules of Criminal Procedure,

courts have consistently quashed indictments in instances where the grand jury’s

independence may have been imperiled; however, because a harmless error analysis

is used in the federal system, the party seeking the dismissal must clearly establish the

16 violation, must prove with particularity the irregularities in the grand jury process,

and must show impairment of substantial rights of the accused. Id.

In another opinion rendered the same year as Mechanik, the Supreme Court

addressed the petitioner’s request for a harmless error analysis where the trial court

discriminated in selecting grand jurors and held that a harmless-error analysis was not

always appropriate for some grand jury issues because a subsequent fair trial would

not necessarily cure grand jury defects:

The grand jury does not determine only that probable cause exists to believe that a defendant committed a crime, or that it does not. In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense–all on the basis of the same facts. Moreover, “[t]he grand jury is not bound to indict in every case where a conviction can be obtained.” United States v. Ciambrone, 601 F.2d 616, 629 (CA2 1979) (Friendly, J., dissenting). Thus, even if a grand jury’s determination of probable cause is confirmed in hindsight by a conviction on the indicted offense, that confirmation in no way suggests that the discrimination did not impermissibly infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come.

When constitutional error calls into question the objectivity of those charged with bringing a defendant to judgment, a reviewing court can neither indulge a presumption of regularity nor evaluate the resulting harm. . . . [D]iscrimination in the grand jury undermines the structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review.

. . . The overriding imperative to eliminate this systemic flaw in the charging process, as well as the difficulty assessing its effect on any given defendant, requires our continued adherence to a rule of mandatory reversal.

Vasquez, 106 S.Ct. at 623-24 (alteration in original) (footnote omitted).

The Louisiana Constitution states that the secrecy of grand jury proceedings

shall be provided by law. La.Const. art. V, § 34. In accordance with the constitution,

the Louisiana Code of Criminal Procedure provides grand jury secrecy requirements.

La.Code Crim.P. arts. 431, et seq. Grand jurors are required to pledge to keep secret

17 their own counsel, that of their fellow grand jury members, and that of the State.

La.Code Crim.P. art. 431. Grand jurors are also required to promise that, unless

authorized by law, they will not disclose the testimony of any witness examined

before the grand jury, any statements made by fellow grand jury members, or any vote

made by the individual members. Id. The rules of grand jury secrecy also apply to

prosecutors. In Re Grand Jury, 737 So.2d 1; State v. Hopkins, 40 So. 166; State v.

Richard, 59 La. Ann. 210, 23 So. 331 (1898). Grand jury witnesses, persons involved

in the recording or transcribing of the proceedings, and interpreters also must vow

secrecy.4

Louisiana Code of Criminal Procedure Article 433 limits the attendance at

grand jury sessions to the prosecutor(s),5 the witness under examination, the person

sworn to record the proceedings of and the testimony given before the grand jury, and

a language interpreter sworn to translate the testimony of a witness who is unable to

speak English. Additionally, targets of the grand jury’s investigation are allowed the

presence of counsel during grand jury sessions. La.Code Crim.P. art. 433(A)(2).

However, attendance at grand jury deliberations is limited to the grand jurors

themselves. La.Code Crim.P. art. 433(B). Any unauthorized person who

intentionally attends a meeting of the grand jury shall be in constructive contempt of

court. La.Code Crim.P. art. 433(C).

4 “A witness who is to testify before the grand jury shall first be sworn by the foreman, in accordance with Article 14, to testify truthfully and to keep secret, except as authorized by law, matters which he learns at the grand jury meeting.” La.Code Crim.P. art. 440.

“Before being permitted to function in their respective capacities, the court shall administer an oath, to persons employed to record and transcribe the testimony and proceedings, and to interpreters, to faithfully perform their duties and keep secret the grand jury proceedings.” La.Code Crim.P. art 441. 5 The district attorney is the representative of the state before the grand jury and is its legal advisor. He shall be notified of and has the right to be present at all sessions of the grand jury, except while it is deliberating and voting. He shall examine witnesses before the grand jury. La.Code Crim.P. art. 64.

18 The Official Revision Comment to La.Code Crim.P. art. 433 gives some

guidance on the legislature’s intention for grand jury secrecy. It states that some of

the more important reasons for grand jury secrecy are:

(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation.

See also, Trosclair, 443 So.2d 1098. Although the legislature did not include a

specific provision holding the indictment subject to a motion to quash for the

intentional presence of an unauthorized person at a grand jury meeting, it specifically

stated that the article did not change the Revere, 94 So.2d 25, rule (discussed below),

but rather stated that “neither the Revere rule nor the contempt provision of Paragraph

C should apply if an unauthorized person inadvertently enters the grand jury room

and is promptly removed.” Official Revision Comment(d) for La.Code Crim.P. art.

433.

Louisiana Code of Criminal Procedure Article 434 (emphasis added) provides

the specifics of grand jury secrecy:,

A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under

19 investigation or indicted, with the attorney general or the district attorney, or with the court.

....

C. Any person who violates the provisions of this article shall be in constructive contempt of court.

The Revision Comment clarifies that the secrecy obligation extends to and

encompasses the district attorney and his assistants. Revision Comment(b) to

La.Code Crim.P. art. 434. The comment goes on to state that “[t]he secrecy required

of a witness appearing before the grand jury does not preclude the witness from

discussing his knowledge of the facts of a case” and “the article expressly permits the

witness to discuss his testimony given before the grand jury with those having a

legitimate interest in that testimony.” Witness secrecy is designed to prevent grand

jury witnesses “from disclosing matters which [they learn] by being present at the

grand jury meeting, such as (1) what offenses are under investigation, (2) which

persons are under investigation, and (3) the names of persons who have been, or will

be, called to testify.” Id. It falls to the district attorney or the court to explain the

grand jury secrecy requirement to persons who are involved in the proceedings but

not required to take the oath of secrecy. Revision Comment(c) to La.Code Crim.P.

art. 434.

Also preserving grand jury secrecy, Louisiana Revised Statutes prevents grand

jurors and the district attorney from disclosing information subject to grand jury

secrecy:

No grand juror or district attorney is competent to testify as to anything that took place before the grand jury during its sessions, or to testify upon what evidence any indictment was found, or that it was found upon insufficient evidence, or without evidence; but the grand jurors and the district attorney are competent witnesses both for the state and for the defense in any prosecution for perjury or false swearing,

20 alleged to have been committed before the grand jury, and as authorized by Louisiana Code of Evidence Article 606.[6]

La.R.S. 15:471.

All defenses raised before trial, except mental capacity, shall be raised by

motion to quash. La.Code Crim.P. art. 531; Reaves, 376 So.2d at 136; State v.

Cooper, 449 So.2d at 1376 (holding that the list of grounds for a motion to quash

found in La.Code Crim.P. arts. 532 and 534 are merely illustrative). Louisiana Code

of Criminal Procedure Articles 532-34 set out the grounds for quashing an

indictment, but La.Code Crim.P. art. 533 lists the reasons for quashing an indictment

for errors relating to the grand jury:

A motion to quash an indictment by a grand jury may also be based on one or more of the following grounds:

(1) The manner of selection of the general venire, the grand jury venire, or the grand jury was illegal.

(2) An individual grand juror was not qualified under Article 401.

(3) A person, other than a grand juror, was present while the grand jurors were deliberating or voting, or an unauthorized person was present when the grand jury was examining a witness.

(4) Less than nine grand jurors were present when the indictment was found.

(5) The indictment was not indorsed “a true bill,” or the endorsement was not signed by the foreman of the grand jury.

In the Revision Comments to La.Code Crim.P. art. 533, the legislature

explained:

In State v. Kifer, 186 La. 674, 173 So. 169 (1937), a rape conviction was set aside on the ground that the district attorney was present during the deliberations of the grand jury. The supreme court was not concerned with a specific showing of how the district attorneys’ presence prejudiced the defendant, but simply stated: “The reason for this rule is that if the district attorney or any one else should be permitted to be present during the deliberations of a grand jury, the vote of members of

6 Discussing the disqualification of jurors as witnesses.

21 the grand jurors [jury] might be influenced by his presence, . . . .” Id. at 688, 173 So. at 173. The jurisprudence likewise holds an indictment invalid if any unnecessary person was present while the grand jury was examining witnesses. In People v. Minet, 296 N.Y. 315, 73 N.E.2d 529 (1947), two witnesses were called into the grand jury room together and testified in the presence of each other. In State v. Revere, 232 La. 184, 94 So.2d 25 (1957), an investigator from the district attorney’s office attended the grand jury session for the purpose of monitoring a soundscribing machine, which was recording the testimony of the witnesses. The court rejected the state’s argument that the investigator was present in the capacity of a stenographer as contemplated by former R.S. 15:215, and concluded that “if the secrecy requirement is regarded lightly it may foster the very practices which the grand jury functions to avoid.” Id. at 198, 94 So.2d at 30. The persons authorized to be present when witnesses are examined by the grand jury are specified in Title II, District Attorney and Attorney General, and Title XII, The Grand Jury.

As discussed above, the Louisiana legislature considered Minet, 73 N.E.2d 529,

pertinent to understanding when an indictment should be quashed for defects in the

grand jury.

In Minet, the district attorney, after consulting the members of the grand jury,

allowed an older sibling to accompany an underage witness who was nervous about

testifying; the older sibling was also a witness. Id. An indictment was found against

the defendant, and a motion to quash the indictment based on the sibling’s presence

followed. No specific provision of New York law prohibited the simultaneous

presence of two witnesses in the grand jury room. However, the Minet court held that

New York grand juries had no power to authorize the presence of more than one

witness at a time at grand jury proceedings; its ruling was based on the lack of

jurisprudence on the issue along with common law history and the then-proposed

Section 133 of the American Law Institute Code of Criminal Procedure restricting the

number of witnesses at a grand jury hearing to one at a time.

The Minet court then decreed that “an indictment should be dismissed when

two witnesses have been presented together while the testimony of one or both was

heard by the grand jury and that the decision should not be” based on a harmless error

22 analysis. Id. at 532. Any number of physical signals, prior statements, or previously

stated opinions made by one witness and heard or observed by the second witness

might affect the free testimony of the second due to a reticence to publicly disagree

with the first; these signals or the silent conformation of the witness who would have

otherwise testified differently would not be evident from the record. Id. at 322, 532.

Furthermore, allowing the presence of co-witnesses during grand jury testimony

would defeat the secrecy that is a vital requisite of grand jury procedure because, as

a witness is not bound to keep secret his own testimony, the witness would also be

able to divulge without restraint the overheard testimony of his co-witnesses. Id.

Under the Minet reasoning, the indictment should also be quashed in this case.

Similar to having multiple witnesses present at the same time in the grand jury room,

Dr. DeHaan was under no obligation to keep Ms. Thomas’ testimony secret once he

was given Ms. Thomas’ grand jury transcript. Also, Ms. Thomas’ testimony was

provided to Dr. DeHaan prior to his testimony before the grand jury and his report

lists that testimony as a source, which indicates that, however negligible, her

testimony had some impact on his own grand jury testimony.

In Revere, 94 So.2d 25, the Louisiana Supreme Court also examined whether

an indictment should automatically be quashed for the presence of an unauthorized

person in the grand jury room or whether a harmless-error analysis should be

implemented. The unauthorized person swore the oath of secrecy, attended the grand

jury proceedings to operate and monitor the machine recording the testimony, and

later transcribed the grand jury testimony. Id. At the time, the law provided for the

presence of a stenographer but not for the attendance of a machine operator or

monitor. Id. After examining the purpose and history behind grand jury secrecy, the

supreme court held that the defendant’s right to have a grand jury proceeding

23 impaneled and conducted according to law should be rigorously protected because

neither the defendant nor his attorney, as a general rule, were permitted to know the

matters occurring in the grand jury hearings. Id.

The Revere court reasoned that “the mere presence of an unauthorized person

in the grand jury room [was] violative of a substantial right of the citizen and [could

not] . . . be abridged through the subterfuge of shifting to that citizen the burden of

proving [that] such an invasion . . . was prejudicial.” Id. at 32-33. Because the

legislature had not specified a harmless error analysis in the situation presented and

because it would be nearly impossible for the defendant to show influence or

prejudice even upon examination of the minutes, approval of the harmless-error

analysis would open the door to grave abuses and jeopardize the safeguards set up by

the institution of the grand jury. Id. The courts must not only guard against actual

prejudice but also must guard against any opportunity that would make it possible to

exert prejudice and influence over the grand jury. Id. “The inconvenience of

resubmitting the matter to the grand jury [would be] temporary;” whereas, the

injustice caused through the violation of the defendant’s right to have the grand jury

proceedings conducted in accordance with law would be perpetual. Id. As a

substantial violation of the defendant’s right, the supreme court affirmed the trial

court’s grant of Revere’s motion to quash. Id. at 34.

Thus, also under the reasoning found in Revere, the trial court appropriately

granted Defendant’s motion to quash the indictment. There is a possibility both that

Ms. Thomas’ testimony had an impact on Dr. DeHaan’s report and that Dr. DeHaan

used the information to influence the grand jury members because they returned an

indictment against Defendant after hearing Dr. DeHaan’s testimony. The possibility

is much greater in the instant case than in the Revere case because Dr. DeHaan was

24 exposed to another witness’s testimony rather than the mere presence of a neutral

party. Such possibilities for abuse should be guarded against because Defendant has

a substantial right to grand jury proceedings conducted in accordance with law.

The supreme court has explained that one of the reasons a grand jury

indictment may not be challenged on the basis of illegal evidence is because “a

review of the evidence considered by the grand jury would destroy the veil of secrecy

with which the law surrounds both the proceedings and the testimony presented to the

grand jury.” State v. Hudson, 253 La. 992, 221 So.2d 484, 496 (1969), cert. granted

and reversed on other grounds, 91 S.Ct. 2282 (1971).

In the opposite situation, the defendant objected when the prosecution sought

to use grand jury testimony to impeach a witness; similarly, the district court

sustained the objection. State v. Terrebonne, 256 La. 385, 236 So.2d 773 (1970).

The supreme court affirmed the trial court’s ruling.

To permit a violation of grand jury secrecy for the purposes advanced here would run counter to the strongest policy consideration supporting grand jury secrecy: “to encourage the free disclosure of information relative to [the] crime.” And it will not do to argue, as the State does, that the obligation of secrecy is no longer of importance when the indictment has been found, the indicted accused is in custody and the grand jury is finally discharged.

For the law’s concern is with the grand jury as a permanent institution and the policy considerations mentioned are to be served on a long term basis, not simply during the life of each grand jury. Thus we cannot understand how secrecy can promote the policy “to encourage the free disclosure of information relative to [the] crime” if, upon discharge of the jury, the obligation of secrecy no longer obtains. Such a system would, in the eyes of any astute observer, render the proferred [sic] protection of secrecy a sham, and the temporary character of the veil of secrecy would, instead, do everything to discourage the free disclosure of information relative to the crime at all subsequent grand jury sessions.

The view we have adopted does nothing to encourage witnesses to perjure themselves either in the grand jury session or at the subsequent trial as the argument suggests. To the contrary, false swearing remains punishable as perjury, and the record of the grand jury

25 testimony, under the exception announced in Article 434, may be produced on the witness’ trial for perjury, not otherwise. Any extension of the exceptions to secrecy announced in Article 434 would, in our opinion, immeasurably weaken the effectiveness of the grand jury as an inquisitorial body; for it was never intended that witnesses who honestly err in their testimony before the grand jury, and who later discover the error and correct it in their testimony at the trial, should have their testimony impeached.

As this Court declared in State v. Revere, the secrecy of the grand jury must serve to protect the jurors, the witnesses, the State, the accused and society as a whole. It is inevitable that in fulfilling this rule the requirements of secrecy must come in conflict with one or more of the many demands of the law. In the face of these conflicts, the tradition of the law requires that secrecy must prevail, unless it be dispensed with by a clear and specific legislative mandate.

Id. at 776-77 (emphasis in original).

In Trosclair, 443 So.2d 1098, the supreme court discussed exceptions to the

grand jury secrecy rule and the appropriate method for obtaining disclosure of grand

jury materials not included in those exceptions. The Trosclair court recognized three

exceptions to grand jury secrecy: (1) after the indictment, persons present at the grand

jury proceedings may reveal statutory irregularities to defense counsel, the attorney

general, the district attorney, or the court; (2) a court may direct disclosure of grand

jury testimony to show that the witness committed perjury; and (3) without first

seeking the court’s permission, both the prosecution and defense counsel are allowed

access to witnesses for discussion of their grand jury testimony. In determining

whether to reveal information not falling within those exceptions, the district court

must balance the strong public policy in favor of maintaining grand jury secrecy with

the need for openness in discovery. Id. The party seeking disclosure must show that

there is a compelling necessity for the disclosure; without the information requested,

the party’s case would be greatly prejudiced and that injustice would occur. Id. The

need must be shown with particularity and the request limited to those portions of the

proceedings actually needed. Id. In the instant case, the prosecution failed to follow

26 this procedure before disclosing the information to either Dr. DeHaan or Detective

Sandoval.

Another supreme court case discussed whether a prosecutor may, without first

seeking authorization, disclose information to federal prosecutors. In Re Grand Jury,

737 So.2d 1. In 1993, a grand jury convened in East Baton Rouge Parish to

investigate Edwin and Stephen Edwards in relation to the licensing process for

riverboat gaming operators in Louisiana but did not return an indictment. Four years

later, a federal prosecutor sent a letter to the East Baton Rouge Parish District

Attorney seeking the transcripts of those hearings. Without conducting a hearing, the

duty judge for the Nineteenth Judicial District Court signed an order releasing the

materials. In reviewing the decision, the supreme court took the opportunity to re-

examine the law and federal jurisprudence pertaining to grand jury secrecy.

After examining prior decisions, the supreme court discussed the exceptions

to the general prohibition from revealing grand jury information: (1) after the

indictment, the grand jury members can notify the defense counsel, attorney general,

district attorney, or court of statutory irregularities in the proceedings; (2) when

permitted by the court, persons present at the grand jury hearings can reveal testimony

to show that a witness committed perjury; (3) a witness may discuss his grand jury

testimony with the defense counsel, attorney general, district attorney, or the court;

(4) after notifying his district attorney, the grand jury foreman may alert the attorney

general to a crime that may have been committed in another parish in the State, and

the district attorney or attorney general may forward the relevant evidence to the

district attorney of the other parish.7 Id. Outside of those express exceptions, the

7 Louisiana courts have also recognized that Brady grand jury materials may be released to the defendant following an in camera inspection and determination by the court. State v. Poland, 00-453,(La. 3/16/01), 782 So.2d 556, State v. Williams, 98-1947 (La.App. 4 Cir. 8/23/00) 769 So.2d (continued...)

27 party seeking disclosure of grand jury materials must prove at a contradictory hearing

that a particularized compelling necessity, i.e. great prejudice to the party’s case,

exists for the disclosure. Id.; Pettibone v. Belt, 02-1316, (La.App. 3 Cir. 4/30/03), 843

So.2d 1265. The supreme court concluded that, because the federal prosecutor would

have had to follow procedure by demonstrating a particularized compelling necessity

at a contradictory hearing in order to legally obtain the grand jury materials and

because the United States Attorney failed to follow the designated procedure, the

release of the grand jury materials to the federal prosecutor was improper. In Re

Grand Jury, 737 So.2d 1.

The supreme court still maintains that:

The party seeking disclosure bears the burden to show a compelling necessity for breaking the indispensable secrecy of grand jury proceedings. He must show that, without the material, his case would be greatly prejudiced or that an injustice would be done. If allowed, disclosure “must be closely confined to the limited portion of the material for which there is particularized need.” In any event, disclosure is left to the sound discretion of the trial court whose ruling will not reversed absent an abuse of that discretion.

Higgins, 898 So.2d at 1241 (citations omitted).

None of the law or jurisprudence examined indicates that Louisiana has

adopted all of the exceptions set out in the Federal Rules of Criminal Procedure. In

1999, the supreme court expressly listed the exceptions to grand jury secrecy and

disclosure to the State’s expert witness was not listed among them; also, under both

La.Code Crim.P. art. 434 and the supreme court jurisprudence, persons admitted to

the grand jury hearings may only disclose testimony for the purposes of proving

perjury after that person has been given permission by the court. In Re Grand

Jury, 737 So.2d 1.

7 (...continued) 629.

28 The second circuit has held that “[a] general claim that disclosure of grand jury

testimony would reveal evidence of perjury [or prior inconsistent statements] is

insufficient to satisfy the requirement of a showing of particularized need.” State v.

Small, 29,137, p. 9 (La.App. 2 Cir. 4/2/97), 693 So.2d 180, 188 (citing State v. Evans,

27,750 (La.App. 2 Cir. 2/28/96), 669 So.2d 719, writ denied, 96-793 (La. 6/28/96),

675 So.2d 1119); State v. Corley, 97-235, (La.App. 3 Cir. 10/8/97), 703 So.2d 653,

writ denied, 97-2845 (La. 3/13/98), 712 So.2d 875. Instead, the trial court has been

authorized to conduct an in camera inspection of the grand jury transcripts in order

to determine whether conflicting statements have been made. Small, 693 So.2d 180.

The State did not follow proper procedure in seeking release of the grand jury

testimony so that it could prove perjury. Under Small and La.Code Crim.P. art. 434,

even had the prosecutor followed the proper procedure, the district court may not

have found a particularized need for disclosing the testimony of three witnesses to

Detective Sandoval because the information was given to him so that he could

investigate whether those witnesses committed perjury.

The officials entitled to be present at grand jury sessions and therefore privy

to the grand jury testimony are the district attorney, assistant district attorneys,

attorney general, and assistant attorneys general. La.Code Crim.P. art 433. “Unless

the context clearly indicates the contrary, official titles, such as clerk of court,

coroner, district attorney, and sheriff, include assistants and deputies.” La.Code

Crim.P. art. 8. Because the State’s expert witness and the chief investigator for the

case are not officially acting as either assistants or deputies to the district attorney,

assistant district attorneys, attorney general, or assistant attorney generals; neither the

State’s expert witness nor its lead investigator for the case are among those people

privy to grand jury testimony by merit of their presence at those hearings. Therefore,

29 the prosecutor violated grand jury secrecy by divulging the information to Dr.

DeHaan and Detective Sandoval without first following the proper procedure.

Moreover, the trial court properly quashed the indictment under Revere, 94 So.2d 25,

and the Louisiana-adopted case, Minet, 73 N.E. 2d 529.

As to whether Dr. DeHaan and Detective Sandoval should be prohibited from

testifying in any future proceeding in the prosecution of Defendant, the law and

jurisprudence is not clear. We were unable to find any specific case where the trial

court had issued this ruling, and neither the State nor Defendant cited any relevant

law. However, “[w]here no procedure is specifically prescribed by this Code or by

statute, the court may proceed in a manner consistent with the spirit of the provisions

of this Code and other applicable statutory and constitutional provisions.” La.Code

Crim.P. art. 3. Also:

A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. It has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done. A court has the power to punish for contempt.

La.Code Crim.P. art. 17. Therefore, if the only way to ensure that justice is done is

to keep Dr. DeHaan and Detective Sandoval from testifying in any future criminal

proceedings relating to the prosecution of Defendant, then the district court was

acting well within its authority when it issued the prohibition.

The trial court correctly pointed out that both Dr. DeHaan and Detective

Sandoval have seen the prohibited information and they cannot testify as if their

viewing the material had not happened. The prosecutor would not be able to cure the

error at this point by independently obtaining all of the disclosed information by

interviewing the witnesses and then dispensing the information to Dr. DeHaan and

30 Detective Sandoval. The substantial lapse of time since the original grand jury

hearings makes the four witnesses’ ability to remember the substance of their

testimony, much less a verbatim account, highly improbable. Notably, the district

court did not prohibit Dr. DeHaan from turning over his case file, minus the grand

jury transcript and any reference thereto, to a colleague with similar experience.

Likewise, the trial court also did not prohibit another investigator from reviewing

Detective Sandoval’s files and notes pertaining to the investigation without the grand

jury transcripts or any reference thereto. Although inconvenient for the prosecution,

the district court’s ruling did not actually destroy the effectiveness of the State’s case.

Even though the rules of evidence do not apply to grand jury proceedings, the

sanctions provision of La.Code Evid. art. 615, which redresses violation of witness

sequestration at trial, may be helpful in determining whether the witnesses were

appropriately excluded from further prosecution proceedings as a sanction for the

violation of grand jury secrecy: “A court may impose appropriate sanctions for

violations of its exclusion order including contempt, appropriate instructions to the

jury, or when such sanctions are insufficient, disqualification of the witness.”

Pending completion of appellate review, the prosecutor responsible for the

secrecy violation has been ordered to show cause why he should not be held in

constructive contempt of court pursuant to La.Code Crim.P. art. 434. However, the

contempt proceedings against the prosecutor will not erase the witnesses’ knowledge

of prohibited information. As there is no proof that witnesses themselves divulged

prohibited material, contempt proceedings against the witnesses is not an appropriate

solution. Likewise, special jury instructions also could not cure the taint caused by

the witnesses’ examination of the prohibited information because the jury would not

31 be able to determine what parts of the witnesses’ testimonies had been influenced by

the grand jury materials without first reviewing the secret transcripts themselves.

Thus, under these circumstance, the only effective sanction listed in La.Code

Evid. art. 615 is disqualification:

(f) Disqualification, is the most drastic remedy. It precludes a party from adducing perhaps vital evidence and deprives the jury of the benefit of the witness’ testimony. When a party has had no knowledge of the violation and has played no role in bringing it about, disqualification unjustly impairs his case. In a criminal case, the exclusion of a defense witness may violate the defendant’s right to call witnesses on his behalf. The Louisiana Supreme Court [has] stated, . . . “Excluding the witness’s testimony, in the absence of a sequestration violation with the consent or knowledge of the defendant or his counsel, is not a constitutionally permissible means of insuring reliable testimony.” Federal courts have adopted a similar view. Federal courts have provided collateral relief and reversed convictions where defense witnesses were excluded.

1988 Official Revision Comment to La.Code Evid. art. 615(citations omitted). “The

Louisiana Supreme Court, while recognizing that disqualification is a drastic remedy,

specifically approves the measure, however, when the sequestration violation was

committed with the consent, connivance, procurement or knowledge of the party

calling the witnesses.” Briscoe v. Briscoe, 25,955, p. 6 (La.App. 2 Cir. 8/17/94), 641

So.2d 999, 1005. Because the prosecutor actively caused the violation, excluding the

witnesses would not infringe upon the State’s right to prosecute Defendant.

Thus, because other remedies would not cure the harm done to Defendant and

because the inconvenience the exclusion causes the prosecution does not outweigh

that harm, the trial court did not err in excluding Dr. DeHaan and Detective Sandoval

from testifying at future proceedings relevant to the prosecution of Defendant.

The State’s assignment of errors is without merit.

32 DISCUSSION OF AMICUS CURIAE ARGUMENTS

The Louisiana District Attorneys Association argues that the discussion of

grand jury testimony with investigating officers and expert witnesses is essential to

both the investigative and accusatory functions of the grand jury. It states that such

persons are engaged in a collective effort to investigate and prosecute the case and

are, therefore, clearly “persons having confidential access to information concerning

grand jury proceedings” under La.Code Crim.P. art. 434. The Louisiana District

Attorneys Association provides no support for its statement. Nothing in the grand

jury articles allows the free disclosure of other witnesses’ grand jury testimony to the

prosecution’s expert witnesses and investigators. La.Code Crim.P. arts. 431, et seq.

Most logically, “[A]ll persons having confidential access to information concerning

grand jury proceedings” would apply only to those people involved in the peripheral

functioning of the grand jury, such as any officer guarding the door to the grand jury

room or anyone else who may observe and recognize the grand jury witnesses as they

enter and exit, a transcriber who may not have been involved in the actual recording

of the testimony, or the trial judge who performs an in camera inspection of the

testimony for signs of perjury or Brady evidence. La.Code Crim.P. art. 434(A).

The Louisiana District Attorneys Association propounds that, as the target of

the investigation is allowed the presence of counsel during his testimony, the

investigated party’s attorney should also be allowed to share grand jury information

with co-counsel, defense investigators, and defense experts. This argument purports

to be equitable; however, it only allows the defense to share the defendant’s

testimony; whereas, the Louisiana District Attorneys Association is seeking full

disclosure of ALL grand jury materials for prosecutors. Furthermore, if the parties

follow the proper procedure, all of the information given by all witnesses is already

33 available to both the prosecution and the defense because neither party is prohibited

from independently questioning any grand jury witness in order to legitimately obtain

the information the witness gave to the grand jury. La.Code Crim.P. art. 434. The

Supreme Court has specifically ruled out convenience as a valid reason for disclosing

grand jury materials. Procter & Gamble Co., 78 S.Ct. at 983.

Next, the Louisiana District Attorneys Association asserts that, because the

district attorney represents the State before the grand jury under La.Code Crim.P. art.

64, all of its investigators, experts, and fellow prosecutors should be privy to the

information as members of “the State.” The Louisiana District Attorneys Association

contends that there is no need for court authorization for such a disclosure because

the district attorney is allowed to direct any and all evidence, transcripts, and

testimony of any crime that may have happened in another parish to the district

attorney of that parish under La.Code Crim.P. art. 434(B) (emphasis added).

The Louisiana District Attorneys Association ignores the first part of La.Code

Crim.P. art. 434(B), which states, “[w]henever a grand jury of one parish discovers

that a crime may have been committed in another parish of the state, the foreman of

that grand jury, after notifying his district attorney, shall make that discovery

known to the attorney general.” Thus, contrary to the Louisiana District Attorneys

Association’s view, the article does not allow uncontrolled sharing of information

between prosecutors of differing jurisdictions because such a sharing of information

is limited to the particular circumstances and must be initiated by the grand jury itself.

La.Code Crim.P. art. 434(B). The information sharing is limited to the attorney

general, his assistants and deputies, the district attorney of the other parish, and his

assistants and deputies. La.Code Crim.P. arts. 8, 434(B). This does not include the

prosecution’s witnesses. Also, Louisiana courts have long held that grand jury

34 secrecy restrictions apply to prosecutors as well as defendants and, in order to obtain

disclosure of grand jury materials in situations not falling under section B of La.Code

Crim.P. art. 434, the party seeking the disclosure must first obtain permission from

the court. Higgins, 898 So.2d at 1219; In Re Grand Jury, 737 So.2d 1; Hopkins, 40

So. 166; Richard, 23 So. 331.

The Louisiana District Attorneys Association is, in effect, asking this court to

waive grand jury secrecy for all prosecutors, allowing those prosecutors to reveal

grand jury materials to anyone they feel can use the information to further the State’s

case. As Louisiana courts have long maintained that grand jury secrecy applies to the

prosecution, the Louisiana District Attorneys Association’s arguments are without

merit.

CONCLUSION

This court affirms the district court’s ruling.