ON APPLICATION FOR WRITS DIRECTED TO JUVENILE COURT ORLEANS
PARISH NO. 2016-062-01-DQ-E/B/C Honorable Donald T. Johnson,
Presiding, Ad Hoc
A. Cannizzaro, Jr. District Attorney Scott G. Vincent
Assistant District Attorney PARISH OF ORLEANS COUNSEL FOR
RESPONDENT/STATE OF LOUISIANA
Murphy Louisiana Center for Children's Rights COUNSEL FOR
composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Roland L. Belsome, Judge Madeleine M. Landrieu, Judge
Joy Cossich Lobrano)
F. Love Judge
M.J. seeks review of the juvenile court's March 17, 2017
judgment which granted the State's motion to subpoena Ms.
Mary Murphy, defense counsel for relator as well as its
motion to recuse Ms. Murphy from representing relator in this
matter. We find the State has failed to meet the requirements
of La. C.E. art. 507(A), and therefore, we grant the writ,
reverse the juvenile court's March 17, 2017 judgment, and
lift the stay.
HISTORY AND FACTUAL BACKGROUND
State charges M.J. with two counts of battery of a police
officer and one count of resisting a police officer. The
events leading to the charges in this case allegedly occurred
while M.J. appeared in juvenile court for a hearing with his
attorney Ms. Murphy. The State initially filed a motion to
disqualify and recuse Ms. Murphy, which was granted in
December 2016. Defense counsel filed a supervisory writ with
this Court, claiming Ms. Murphy was not properly subpoenaed
pursuant to La. C.E. art. 507. We granted the writ and
remanded for an evidentiary hearing to determine: (1) whether
the information sought was not privileged; and (2) whether
the information meets all the requirements of La. C.E. art.
507(A)(1)-(4). See Writ No. 2017-C-0053. Following
the hearing the juvenile court ordered Ms. Murphy to testify
as a witness and ordered her recused from representing M.J.
in this case. M.J. seeks this Court's supervisory review
of the juvenile court's March 17, 2017 judgment.
subpoena may not be issued unless after a contradictory
hearing it is determined that the information sought is not
protected from disclosure and all the requirements
of La. C.E. art. 507(A)(1)-(4) are met.
events in this case are alleged to have taken place in the
courtroom, and the State's witness list includes eight
witnesses, six of whom were present in the courtroom when the
alleged incident occurred. As noted in our previous writ
disposition, among the witnesses is "the victim who will
presumably provide direct evidence of the essential elements
of the charged offenses." See Writ No.
2017-C-0053. Further, all juvenile court proceedings are
recorded, and the State notes in its discovery that the
alleged incident in this case was audio and video recorded.
The State claims that due to Ms. Murphy's proximity to
the incident her testimony is essential to the State's
successful prosecution. See La. C.E. art. 507(A)(1).
the State fails to show that the information it seeks from
Ms. Murphy cannot be obtained from the other witnesses or the
a subpoena of Ms. Murphy is only permissible if there is no
practicable alternative means of obtaining the information to
which she would testify. La. C.E. art. 507(A)(4); State
v. Gates, 08-0006, p. 10 (La.App. 1 Cir. 5/15/09), 17
So.3d 41, 48. The State argues that only Ms. Murphy can
testify as to what she observed. Nevertheless, the
State's burden is not to show that no other witness can
testify as to what Ms. Murphy observed, but instead to show
that what she witnessed is necessary to prove the State's
case. Given the number of witnesses and the audio and video
recordings of the alleged incident, Ms. Murphy's
testimony is not essential to the State's prosecution.
the same reason, there are practicable alternative means of
obtaining the information to which she would testify.
Therefore, the State has not met the requirements of
subsections (A)(1) and (A)(4).
the subpoena, its states that Ms. Murphy is called to testify
"as to her observations of the incident" and is
"not being called to disclose privileged
communications." A request simply for
"observations" and nothing more is insufficient to
meet the requirements of La. C.E. art. 507(A)(3).
Cf., State v. Gates, 08-0006, p. 10
(La.App. 1 Cir. 5/15/09), 17 So.3d 41, 48 (finding a
subpoena, which sought testimony regarding what prosecutors
did and said during specific conversations with the
sheriff's attorney and defense counsel, met requirements
of subsection (A)(3)); See also State v. Bright,
96-0280 (La.App. 4 Cir. 6/12/96), 676 So.2d 189 (holding a
subpoena for defendant's diary, portions of which were
previously published in the newspaper, satisfied subsection
(A)(3)). In contrast to the cited cases, the State does ...