May 27, 2015
STATE OF LOUISIANA
APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT
ORLEANS PARISH. NO. 521-564, SECTION " G" .
Honorable Byron C. Williams, Judge.
Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant
District Attorney, Parish of Orleans, New Orleans, LA,
COUNSEL FOR RESPONDENT/STATE OF LOUISIANA.
E. Regan, Jr., Regan & Sandhu, P.L.C., New Orleans, LA,
COUNSEL FOR APPLICANT/DEFENDANT.
composed of Judge Max N. Tobias, Jr., Judge Roland L.
Belsome, Judge Paul A. Bonin). BELSOME, J., DISSENTS WITH
[2015-0455 La.App. 4 Cir. 1] PAUL A. BONIN, J.
Le pleaded not guilty to the manslaughter charge of killing
Brittany Thomas and the charge of the attempted second degree
murder of an unknown male. During the pretrial discovery
process, the prosecution furnished Mr. Le with a redacted
supplemental report of the police investigation. In that
report, the prosecution had deleted the names and contact
information of some, but not all, of the witnesses to the
gunfire exchange that resulted in Ms. Thomas's death and
the attempted murder of the unknown male.
this limited disclosure, Mr. Le filed a motion under Article
729.7 of the Louisiana Code of Criminal Procedure seeking to
be furnished with the deleted information or an unredacted
copy of the police report. Initially, the predecessor trial
judge denied Mr. Le's motion to conduct an ex
parte hearing and instead ordered that the prosecution
disclose to Mr. Le all material evidence under Brady v.
Maryland. See 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). Mr. Le timely sought our supervisory review. We
granted Mr. Le's writ and remanded the matter for the
trial judge to [2015-0455 La.App. 4 Cir. 2] conduct an ex
parte hearing in compliance with Article 729.79(A).
See State v. Le, 15-0014, p. 8 (La.App. 4
Cir. 4/2/15), 165 So.3d 242, 2015 WL 1510724, *4.
ex parte hearing was conducted, recorded, and
maintained under seal. And, on April 17, 2015, the trial
judge maintained the redactions, thereby denying Mr. Le's
motion for the disclosure of the witnesses' names and
contact information. The trial judge found that the
prosecution had made a sufficient prima facie
showing that the " disclosure of witnesses'
information will more [than] likely result in some form of
direct or indirect contact of these witnesses by parties
other than the defendant's counsel which could result in
intimidation, threats, or physical harm." Mr. Le again
invokes our supervisory jurisdiction to review this ruling.
See La. C.Cr.P. art. 912.1(C)(1); La. Const. art. V,
Following oral argument, we grant Mr. Le's application
for a writ of supervisory review. We have reviewed the trial
judge's discovery ruling under a highly deferential
abuse-of-discretion standard and find no erroneous
application of law. We accordingly deny the relief sought by
Mr. Le and affirm the trial judge's ruling.
explain our decision in greater detail in the following
La.App. 4 Cir. 3] I
of the pretrial status of this matter, there has not been a
full development of the facts surrounding the incident in
question. We understand, however, based upon the parties'
submissions in the trial court and to this Court, that the
events which gave rise to the pending criminal charges
occurred in the predawn hours of June 29, 2014 at the corner
of Bourbon Street and Orleans Avenue in the French Quarter.
Mr. Le arrived in the French Quarter armed and joined a
group of friends, who were previously engaged in activity
involving narcotics, at that intersection. The submitted
video recordings then show that crowds were in the area and
that panic ensued as gunfire was exchanged. According to the
redacted police report, in addition to Ms. Thomas, nine other
persons were wounded by bullets.
evidence suggests that at least two different types of
firearms were discharged during the confrontation. The police
have identified Mr. Le as one of the shooters, and Mr. Le
does not dispute that he fired a weapon. The identity of
another person, who is clearly visible in the submitted video
firing a weapon, has never been determined and, according to
the district attorney, is the unknown male victim identified
in the indictment. We also understand that Mr. Le intends to
justify his use of the weapon as acting either in
self-defense or in the defense of others.
La.App. 4 Cir. 4] II
Part we review Articles 718 and 729.7 of the Louisiana Code
of Criminal Procedure and examine operative terms essential
for determining the merits of Mr. Le's application.
718 and 729.7 are both contained in Chapter 5 of Title XXIV
of the Louisiana Code of Criminal Procedure, which controls
pretrial discovery. Article 718 is contained in Part A of
Chapter 5 relative to discovery by the defendant, while
Article 729.7 is contained in Part C relative to the
regulation of that discovery. See Le,
15-0014, pp. 4-5, 165 So.3d at 245, 2015 WL 1510724, *3.
718 was amended and Article 729.7 was codified in connection
with a recent comprehensive revision of Chapter
Five. See 2013 La. Acts, no. 250.
the revision, both articles became effective for cases filed
after December 31, 2013. See ibid. See also
Le, 15-0014, p. 5, 165 So.3d at 245, 2015 WL
1510724, * 3. [2015-0455 La.App. 4 Cir. 5] This comprehensive
legislation originated in the Louisiana House of
Representatives as House Bill no. 371. See Louisiana
State Legislature, 2013 Regular Session, House Bill no. 371,
(last visited May 26, 2015). And testimony before the House
Committee on the Administration of Criminal Justice on May 1,
2013 indicates that this revision was the result of a
collaborative process between the Louisiana Association of
Criminal Defense Lawyers, the Louisiana District
Attorney's Association, and the Louisiana Law Institute.
amending Article 718, the legislature for the first
time authorized a defendant, during
pretrial discovery, to inspect and copy " law
enforcement reports created and known to the prosecutor made
in connection with that particular case...." La. C.Cr.P.
art. 718. The broadened discovery rights granted in this
revision, including those in Article 718, were at the same
time, however, limited by the enactment of Article 729.7.
See 2013 La. Acts, no. 250.
729.7 " modified the procedure for disclosure of a
witness known to the state and made known to the [district
attorney] in written form." Le, 15-0014, p. 6,
165 So.3d at 246, 2015 WL 1510724, *3. Article 729.7(A)
provides: " Notwithstanding any other provision of law
to the contrary, the district attorney or the defendant may
delete or excise from any information required to be
disclosed [2015-0455 La.App. 4 Cir. 6] herein any information
which identifies a witness if such party believes the
witness's safety may be compromised by the
disclosure." Article 729.7 thus permits, as here, the
district attorney to excise from a law enforcement report the
identifying information of any witness to a crime, including
those whom the district attorney does not intend to testify
at trial, if the district attorney believes that the
witness's safety may be compromised by the inclusion of
such information in the report.
properly object to an excision or deletion, an opposing party
must file a written motion requesting the disclosure of the
document in unredacted form. See La. C.Cr.P. art.
729.7(A). See also Le, 15-0014, p. 6, 165
So.3d at 246, 2015 WL 1510724, *3. The trial judge, in order
to find that a deletion was proper, must conduct an ex
parte hearing in chambers, which is recorded and
maintained under seal. See La. C.Cr.P. art.
See also Le, 15-0014, p. 8, 165 So.3d at
246, 2015 WL 1510724, *4. The rules of evidence " shall
not be applicable to the[se] ex parte
proceedings...." La. C.Cr.P. art. 729.7(D). At this
hearing, the redacting party must " disclose its reasons
on the record why the deleted and excised portions of the
document should not be disclosed. The recording of the
proceedings and the unredacted document shall thereafter be
retained under seal." Le, 15-0014, p. 7, 165
So.3d at 246, 2015 WL 1510724, *3.
trial judge shall " maintain the deletion or excision if
... the party excising or deleting such information makes a
prima facie showing that the [2015-0455 La.App. 4
Cir. 7] witness's safety may be compromised by the
disclosure."  La. C.Cr.P. art. 729.7(A) (italics
added). In the event the trial judge concludes that the
redacting party has not made a sufficient prima
facie showing to support the deletion of the
witness's identifying information, then the trial judge,
upon motion of either party, shall grant an automatic stay of
all matters related to the disclosure of the witness's
information and maintain all proceedings under seal while the
moving party seeks the supervisory review of appellate
courts, including the Louisiana Supreme Court. See
La. C.Cr.P. art. 729.7(C).
Part we examine the prima facie showing required to
be made by the redacting party under Article 729.7 and then
discuss the legal precepts that guide a district judge's
determination of the sufficiency of a showing under that
House Bill no. 371 was proposed, Article 729.7 was initially
designated as Article 716 and contained in Part A of Chapter
Five, which, as previously stated, addresses pretrial
discovery by the defendant. See Louisiana State
Legislature, 2013 Regular Session, House Bill no. 371,
(last visited May 26, 2015). Significantly, proposed Article
716(A) indicated that the " court shall maintain the
deletion or excision if, at an e x parte proceeding
which shall be recorded and maintained under seal, the state
establishes probable cause to believe [2015-0455
La.App. 4 Cir. 8] the witness's safety may be compromised
by the disclosure." See ibid. (emphasis added).
House Committee on the Administration of Criminal Justice
relocated proposed Article 716 to Part C of Chapter Five,
which, as previously stated, addresses the regulation of
pretrial discovery, and re-designated the original article as
Article 729.7. See Louisiana State Legislature, 2013
Regular Session, Engrossed House Bill no. 371,
(last visited May 26, 2015). Most importantly, the Committee
amended the article to impose upon the redacting party the
requirement of making a prima facie showing in
support of maintaining the redaction. See ibid. This
revision to require a prima facie showing in support
of the deletion, rather than one of probable cause, reflects
a legislative intent to increase the redacting party's
burden of proof. See State v. $144,320.00,
12-0466, p. 13 (La. 12/4/12), 105 So.3d 694, 703 (defining
probable cause as " reasonable grounds for belief,
supported by less than prima facie proof but more
than mere suspicion" )(italics added); La. C.E. art. 302
(noting that the " term 'burden of proof' is
generally used as encompassing both the burden of persuasion
and the burden of producing evidence" ).
prima facie showing has only been defined in our
criminal jurisprudence with respect to the creation of
permissive presumptions. See State v.
Lindsey, 491 So.2d 371, 376 (La. 1986) (" '[
P ] rima facie evidence' is generally
defined by statute as that which suffices for the proof of a
particular fact until contradicted and overcome by other
evidence. Such evidence is not conclusive, but is merely
sufficient as proof until or unless contradicted and overcome
by other evidence." ) (italics added, punctuation
omitted). Permissive presumptions, however, operate on the
assumption that an opposing party will be permitted to
thereafter rebut the [2015-0455 La.App. 4 Cir. 9] evidence
creating that presumption. Therefore this definition of a
prima facie showing does not appropriately apply to
the ex parte proceedings undertaken pursuant to
Article 729.7 in which the party challenging the deletion
will not be present to contradict the claims of the redacting
party. As a result, we look to the same burden from a
well-known civil proceeding--a confirmation of a default
judgment, a proceeding, like here, in which the opposing
party is not present.
Confirmation of a default judgment requires " 'proof
of the demand sufficient to establish a prima facie
case.'" See Arias v. Stolthaven New
Orleans, L.L.C., 08-1111, p. 7 (La. 5/5/09), 9 So.3d
815, 820 (quoting La. C.C.P. art. 1702(A)). " The
elements of a prima facie case are established with
competent evidence, as fully as though each of the
allegations in the petition were denied by the
defendant." See id. (italics added). " In
other words, the plaintiff must present competent evidence
that convinces the court that it is probable that he would
prevail at trial on the merits." See id.
the burden of this analogous procedure to the prima
facie showing required under Article 729.7, we hold that
the redacting party must establish through the introduction
of sufficient evidence (as specially provided by Article
729.7(D)), that the disclosure of identifying information of
certain witnesses to that particular opposing party may
compromise the safety of those aforementioned witnesses.
See La. C.Cr.P. art. 729.7(A). The district judge,
examining this evidence at the ex parte proceeding,
must then find the redacting party's showing sufficiently
compelling to hold that, had the opposing party been present
to rebut that evidence, he would nonetheless have probably
ruled in the redacting party's favor.
La.App. 4 Cir. 10] C
examine the use of " may be compromised" in Article
729.7(A) and discuss the showing that must be made by the
redacting party to maintain the excision of the identifying
information of a witness.
729.7 and the other articles contained in Chapter 5 do not
provide a definition of the term " compromise." Our
examination of Louisiana's statutory law has revealed
several other instances in which the words "
compromise" or " compromised" have been used
in a similar sense;  we
have not, however, uncovered a definition of the term
contained in those statutes or in the jurisprudential
interpretation of those statutes.
Merriam-Webster Online Dictionary defines this usage of
" compromise" as: " 1) to expose to suspicion,
discredit, or mischief; 2) to reveal or [2015-0455 La.App. 4
Cir. 11] expose to an unauthorized person and especially to
an enemy; and 3) to cause the impairment of."
visited May 26, 2015). Similarly, the Merriam-Webster's
Third New International Dictionary defines this usage
accordingly: " to put in jeopardy; endanger (as life,
reputation, or dignity) by some act that cannot be recalled;
expose to suspicion, discredit, or mischief."
Merriam-Webster's Third New International Dictionary 468
(3rd ed. 1976). As we are discussing the potential
compromising of a witness's safety in Article 729.7(A),
" to cause impairment of" is proper to define the
May," as used in Article 729.7(A), is a modal verb of
present or future possibility. See also Black's
Law Dictionary 1127 (10th ed. 2014). Thus, a deleting or
excising party must show that there exists a causal
relationship between the disclosure of identifying
information of any witness to an opposing party and the
resulting possibility, albeit only a possibility, that the
witness's safety will be impaired thereafter.
determining whether a redacting party has made a sufficient
prima facie showing under Article 729.7, a district
judge determines whether the redacting party introduced
sufficient evidence at the ex parte
proceedings to establish that a
[2015-0455 La.App. 4 Cir. 12] causal relationship exists
between the disclosure of identifying information of
witnesses to an opposing party and the mere possibility that
those witnesses' safety will be impaired thereafter.
This is a matter which requires delicate balancing of the
rights of the defendant to full and complete disclosure of
exculpatory materials against the societal interest in
protecting innocent witnesses who voluntarily come forward to
testify." State v. Miller, 03-0796, p. 2 (La.
6/4/03), 848 So.2d 529, 530 (per curiam). " Often it is
only through witnesses who are voluntarily willing to come
forward that the truth can be determined at trial. There is a
tremendous societal interest in protecting citizens from
danger and the fear of retaliation for doing what any good
citizen should do." Id.
making this determination, the district judge should "
consider all relevant factors." Id. See also
United States v. Celis, 608 F.3d 818, 830, 391 U.S.
App.D.C. 112 (D.C. Cir. 2010) (noting that the U.S. Supreme
Court has also addressed disclosure issues on a case-by-case
basis). Prior to the enactment of Article 729.7, the Supreme
Court, in Miller, considered the issue of
withholding identifying information of witnesses and directed
district judges, in making their determinations, to utilize
many of the same factors considered when determining bail or
pretrial detention. See 03-0796, p. 2, 848 So.2d at
530 (referencing La. C.Cr.P. art. 334). The factors listed in
Article 334, in relevant part, include: the seriousness of
the offense charged, including but not limited to whether the
offense is a crime of violence or involves a controlled
dangerous substance, the weight of the evidence against the
defendant, [2015-0455 La.App. 4 Cir. 13] the previous
criminal record of the defendant, the nature and seriousness
of the danger to any other person or the community, the
defendant's voluntary participation in a pretrial drug
testing program, the absence or presence of any controlled
dangerous substance in the defendant's blood at the time
of arrest, and any pending felony charges for which the
defendant is awaiting institution of prosecution,
arraignment, trial, or sentencing. The Supreme Court further
considered " any evidence which establishes the
defendant attempted to threaten any witnesses, the
seriousness of any such threat, and the defendant's
ability to carry out such a threat." Miller,
03-0796, p. 2, 848 So.2d at 530.
Federal cases involving the empaneling of an anonymous jury
also offer useful factors for district judges to consider
when making this determination due to the commonalities
in concern for both juror and witness safety. These factors
include: the defendant's involvement in organized crime;
the defendant's participation in a group with the
capacity to harm; the defendant's past attempts to
interfere with the judicial process; the potential that, if
convicted, the defendant will suffer a lengthy incarceration
and substantial monetary penalties; and the extensiveness of
the publicity of the matter that could result in the names
being made public and expose those in need of protection to
intimidation and harassment. See United States
v. Dinkins, 691 F.3d 358, 373 (4th Cir. 2012) (quoting
United States v. Ross, 33 F.3d 1507, 1520 (11th Cir.
1994)). See also United States v.
Ochoa-Vasquez, 428 F.3d 1015, 1034 (11th Cir. 2005);
United State v. Shryock, 342 F.3d 948, 971 (9th Cir.
2003); United States v. Brown, 303 F.3d 582, 602
(5th Cir. 2002).
La.App. 4 Cir. 14] The above-listed factors, while extensive,
are not exhaustive, and district judges may, and should,
consider any other appropriate argument presented during the
ex parte hearing by the redacting party.
review a trial judge's ruling to maintain a redacting
party's deletion or excision of a witness's
identifying information under an abuse of discretion
standard. See State v. Walters, 408 So.2d
1337, 1340 (La. 1982) (" [U]nless contrary to law,
rulings of the trial judge in pretrial matters are generally
shown great deference by this Court absent a clear showing of
abuse of discretion." ) (punctuation omitted). See
also Le, 15-0014, p. 6, 165 So.3d at 246, 2015
WL 1510724, *3 (noting in an earlier decision in this matter
that the district judge's ruling shall be reviewable by
supervisory writ application and reviewed for abuse of
discretion). We defer to a trial judge's ruling under an
abuse of discretion standard unless we find that the trial
judge's determination is based upon an erroneous
application of the law or clearly erroneous assessment of the
evidence. See State v. Farrier, 14-0623, p.
7 (La.App. 4 Cir. 3/25/15), 162 So.3d 1233, 1240, 2015 WL
1381310, *4 (citing State v. Hampton, 13-0580, p. 2
(La.App. 4 Cir. 2/19/14), 136 So.3d 240, 242-43). See
also State v. Manning, 03-1982, p. 7 (La.
10/19/04), 885 So.2d 1044, 1061; State v. Landrum,
307 So.2d 345, 349 (La. 1975); State v. Brumfield,
13-1171, p. 7 (La.App. 4 Cir. 1/15/14), 133 So.3d 70, 75;
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).
La.App. 4 Cir. 15] We review the district judge's
application of law de novo. See State v.
Wells, 08-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580;
State v. Eberhardt, 13-2306, p. 4 (La. 7/1/14), 145
So.3d 377, 380. And we grant great deference to the factual
findings of the district judge and will " not overturn
those findings unless there is no evidence to support those
findings." Wells, 08-2262, p. 4, 45 So.3d at
580. This extremely heightened deference is rooted in the
limitations of our appellate jurisdiction set forth in La.
Const. art. V, § 10(B), which provides: " In
criminal cases, [an appellate court's] jurisdiction
extends only to questions of law."
review of a district judge's ruling on a motion under
Article 729.7, however, is complicated by the nature of the
proceedings. As a ruling is handed down following
an ex parte hearing in which the transcript of that
hearing and the unredacted document in question are
maintained under seal, it would be improper for the district
judge to make extensive factual findings on the record as
those findings could substantially undermine the purpose of
the entire proceeding--the protection of information that may
identify a witness.
reviewed the law enforcement report and transcripts of the
ex parte hearings under seal and are satisfied that
the district judge's assessment of the evidence was not
clearly erroneous. Our review of the transcript of the
district judge's ruling also confirmed that no error of
law was committed in his decision. The district judge began
by clearly stating the law to be applied in this matter,
including a brief and proper explanation of prima
facie showings. He then explained that during the ex
parte proceedings the district attorney had introduced
sufficient evidence to make a prima facie showing
that the " disclosure of witnesses' information will
more [than] likely result in some form of direct or indirect
contact of these witnesses by parties other than the
defendant's counsel [2015-0455 La.App. 4 Cir. 16] which
could result in intimidation, threats, or physical
harm." The district judge therefore found a causal
relationship between the disclosure of identifying
information of witnesses to Mr. Le and the possibility that
those witnesses' safety may be impaired thereafter.
reviewed the transcripts and materials under seal, we find
that the district judge did not abuse his discretion in
maintaining the district attorney's excision of
witnesses' identifying information in the law enforcement
report disclosed to Mr. Le. We accordingly affirm the trial
judge's ruling to maintain the district attorney's
deletion. The transcripts of the ex parte hearings
and the law enforcement report are to remain under seal as a
permanent part of this record.
GRANTED; RULING AFFIRMED
La.App. 4 Cir. 1] BELSOME, J., DISSENTS WITH REASONS
respectfully dissent from the majority's disposition.
While I agree with its legal analysis, I write separately to
express my concerns regarding " the evidence"
submitted in this case. Pursuant to La. C.Cr.P. art.
729.7(D), the evidentiary rules are inapplicable, such that a
police report might be submitted as evidence when it is
normally considered inadmissible hearsay. However, the
argument of counsel is not evidence. See La. C.Cr.P.
recognize that the defendant's right to prepare a defense
must be balanced against the interests in protecting
witnesses, the record does not reflect that the State
submitted a single piece of evidence during the ex
parte hearing. Anecdotal argument based upon conjecture
and speculation does not meet the minimum burden set forth by
729.7(A). Though it is evident from the transcripts that the
trial court reviewed a video recording of the shootings,
there is nothing to indicate that the trial court reviewed
any other evidence referred to and relied upon by the State
during its argument.
the information in the police report is sufficient to meet
the State's burden. However, we cannot assume that the
trial court reviewed a police report that was not admitted
into evidence, especially when considering the transcript
from the ex parte hearing suggests the opposite.
Since the State did not [2015-0455 La.App. 4 Cir. 2] meet its
burden of proof through the introduction of sufficient
evidence at the ex parte hearing, I would
find that the trial court abused its discretion in denying
the defendant's motion to release the redacted portion of
the police report. For these reasons, I would grant the writ
and the relief requested.
If the trial judge had granted Mr. Le's
motion and found that the district attorney had failed to
make a sufficient prima facie showing, Article
729.7(C) provides that a trial judge, upon motion of either
party, shall grant an automatic stay of all matters related
to the disclosure of a witness's information and maintain
all proceedings under seal while the moving party seeks the
supervisory review of appellate courts, including the
Louisiana Supreme Court. See Part II-A,
Mr. Le's counsel suggests that Mr. Le
was lawfully in possession of his firearm.
Articles 718 and 729.7 neither vitiate the
responsibility of prosecutors to disclose exculpatory
evidence to the defendant under
Brady, nor absolve defense attorneys from the
obligation to conduct their own investigation and prepare a
defense for trial. See, e.g., State v.
Harper, 10-0356 (La. 11/30/10), 53 So.3d 1263. Our
remand instructions to the trial judge were limited to
directing that he conduct the ex parte hearing as
required by Article 729.7 A, which is restricted to
determining whether a witness's safety may be compromised
by the disclosure of identifying information. See
Le, 15-0014, p. 8, 165 So.3d at 246, 2015 WL
1510724, *4 (" At the ex parte proceeding, the
state shall be required to make a prima facie
showing why the remainder of the sought documents should not
be disclosed to the defense." ) (punctuation omitted).
Our remand instructions did not extend to directing that the
trial judge examine the prosecutor's files for
exculpatory material or that he make further inquiry of a
particularized need by the defendant for the disclosure of
witnesses' identities. See, e.g.,
Harper, 10-0356, pp. 10-13, 53 So.3d at 1270-72 And,
on that account, the trial judge appropriately did not
undertake a review of the prosecutor's files but limited
the ex parte hearing to the specified purpose
allowed by Article 729.7(A). Thus, to be clear, our decision,
like that of the trial judge, does not involve any assessment
of whether the disclosure of the now-concealed
identities of the witnesses may otherwise be required of the
prosecution. Additionally, the prosecutors have affirmatively
stated on the record that they are not in possession of any
Brady evidence that has yet to be disclosed to Mr.
 But also see La. R.S. 44:
3(A)(4)(a) (providing that an initial police report is a
public record that is required to be disclosed when a request
to examine such documents is properly made) and Brown v.
Serpas, 12-1308 (La.App. 4 Cir. 3/20/13), 112 So.3d
Although not at issue in this matter,
" [i]f the information excised by a party includes the
substance, or any part thereof, of any written or recorded
statement of the witness, that party must provide the excised
substance, or any part thereof, to the other party
immediately prior to the witness's testimony at the
trial." La. C.Cr.P. art. 729.7(B). Notably, as the
prosecution has pointed out, no portion of any witness's
statement has been redacted from the law enforcement report
in this matter.
 See, e.g., La. R.S. 37:3520(B)(3)
(" It shall be unlawful for any private
investigator knowingly to ... [d]ivulge to anyone, other than
his employer, or to such persons as his employer may direct,
or as may be required by law, any information acquired during
such employment that may compromise the employer or
assignment to which he has been assigned by such
employer." ); Rule XXXIII, Pt. III, Subpt. II, Std. 6,
Rules of the Supreme Court of Louisiana (" Counsel for a
child shall not reveal the basis of the request for
appointment of a Court Appointed Special Advocate which would
compromise the child's position." ); La.
R.S. 37:3291(B)(7) (" It shall be unlawful for any
person to knowingly ... [d]ivulge to anyone, other than his
employer, or to such persons as his employer may direct, or
as may be required by law, any information acquired during
such employment that may compromise the security of
any premises or assignment to which he shall have been
assigned by such employer." ); La. R.S.
40:1299.35.9(A)(1) (" Any person has the right not to
participate in, and no person shall be required to
participate in any health care service that violates his
conscience to the extent that patient access to health care
is not compromised." ); La. R.S.
29:726.3(C)(2)(c) on the Louisiana Homeland Security and
Emergency Assistance Disaster Act's Critical
Incident Planning and Mapping System (" For purposes of
this Subsection, 'known hazards' shall include any
hazard that might compromise the physical structure
of the building or its occupants, creating an emergency
situation requiring a response from first responder
organizations such as local fire, emergency medical services,
or law enforcement." ); La. R.S. 33:9106.2(A) regarding
improvements to the Orleans Parish Communication District
(" Many facilities utilized by the Orleans Parish
Communication District, created pursuant to Act 155 of the
1982 Regular Legislative Session, and much equipment
necessary for the reception of 9-1-1 emergency telephone
calls, along with the dispatching of emergency responders,
was damaged and greatly compromised by Hurricane
Katrina, thus endangering the health and well-being of the
citizens of Orleans Parish." ); La. R.S. 38:301(A)(4)
(" Levee boards or levee and drainage boards, or the
governing authority where a levee district does not exist,
may allow the public to utilize for recreational purposes as
long as the structural integrity of the levee or flood
control structure is not compromised, levees under
the jurisdiction of the board, or by the governing authority
where a levee district does not exist, and may
construct or permit bicycle paths and walkways." ) (all
 Counsel for redacting parties must be
mindful of ethical and professional obligations arising in
the special circumstance permitted by Article 729.7. Ex
parte communication between counsel and judge are
generally prohibited by both Rule 3.5(b) of the Louisiana
State Bar Association's Rules of Professional Conduct and
Canon 3(A)(6) of the Louisiana Code of Judicial Conduct.
See 21 Frank L. Maraist, et al., La. Civ.
L. Treatise § 20.1 (2014). Such communication is
ordinarily prohibited in order to protect the sanctity of our
adversary system of law. See generally Roberta K.
Flowers, An Unholy Alliance: The Ex Parte Relationship
Between the Judge and Prosecutor, 79 Neb. L.Rev. 251
(2000). Article 729.7, however, provides an exception and
permits such communication in order to ensure witness safety.
Vigilance on the part of counsel and the district judge
must be exercised to limit such communication strictly to the
purpose of the hearing. In an ex parte proceeding,
counsel should also " inform the tribunal of all
material facts known ... whether or not the facts are
adverse." See Rule 3.3(d), Louisiana Rules of
Professional Conduct. Misconduct with regards to ex
parte communication can result in disciplinary action
being taken against both counsel and the district judge.
See, e.g., In re Beck, 13-0265 (La.
3/28/13), 109 So.3d 895; In re Boothe, 12-1821 (La.
1/29/13), 110 So.3d 1002. Notably, should an appellate
court's review of the transcripts under seal reveal any
such impermissible communication, the judges would be obliged
to inform the appropriate disciplinary bodies of the
transgression. See Rule 8.3, Louisiana Rules of
Professional Conduct; Canon 3(B)(3), Code of Judicial
 The " discretion ... of the trial
judge to grant the defense motion for discovery of the names
and addresses of witnesses interviewed by the state, or not
to do so, includes as an alternative the right to place
restrictions or limitations on a discovery order favorable to
the defense, in order to minimize or avoid any oppressive
consequences to the state." Walters, 408 So.2d
at 1340 n.4.