CRIMINAL DISTRICT COURT srA'rE or LOUISIANA PARISH or ORLEANS :2 vmzsus I CASE N0.: szs-mANn 525-991 a mans CUNNINGHAM SEC. mREccnrAm'sesunronNA AND MATERIAL WITNESS BOND 5 3 mm l0" T0 Now into court, cox-nu - through undersigned counsel, moves that this Hononble Court quuh the ruhpam issued by the District Attorney in the above entitled case based upon the knowing: The subpoena does not confirm to the sututory requirements of LI. Art. 66; The subpoena does not meet the 'hemnable mounds" threshold required by Le. Art 66. The subpoena we: not issued by the Clerk of Criminal District Court contrary to the statutory requiremaus of La. (10d). Art. 66; The material witness bond was issued bored upon the that the witness had received service. No service with a subpoena was attempted. Rather, a document purporting to be a La. Art 66 subpoena was lefi at a neighbor's home, - m: winters does not shenahmnewiththeresidentof tlivesinnsepenteunitinlhe 1119 District Attorney has not met the requirements ofh. R.S. 15:257. in that he has not shown that the witness is essmtill to the prosecution and that it may become impracticable to secure the presence ofthe person by subpoena No ananpt to request that the court issue a subpoena has been mode. Yoga 1 of5 Respectfully submitted, J.C. LAWRENCE, ASSOCIATES. L.L.C. 303 South Broad Street New Orleans, LA 70119 Telephone: (504)822-1359 Facsimile: (504) 822-3861 I HEREBY CERTIFY that a copy of the above and foregoing pleading has been forwarded to all cbunsel of record by facsimile, by hand delivery this day, or by depositing a copy thereof, postage prepaid, in the United States mail, addressed to them on this 73?3? of 2017. Page 2 of5 STATE OF LOUISIANA CRIMINAL DISTRICT COURT VERSUS PARISH OF ORLEANS JAMES CUNNINGHAM CASE NO.: 523-272 AND 525-991 SEC. IN RE CCRP ART 66 SUBPOENA AND MATERIAL WITNESS BOND HEARINGORDER IT IS ORDERED, based on the above showing and for other good cause, that the Motion to Quash is to be heard on the day of 2017, at am in Section A of the Criminal District Court. New Orleans, Louisiana, this day of 2017. JUDGE Page 3 of 5 STATE OF LOUISIANA CRIMINAL DISTRICT COURT VERSUS PARISH OF ORLEANS JAMES CUNNINGHAM CASE N04 523-272 I SEC. IN RE CCRP ART 66 AND MATERIAL WITNESS BOND 2 In support to quash_ ofi'ers the following: . Facts: I On January 26, 20mm": uppurs to be an Art. 66 - . aubpoenaby a neighbor who lives a at her home. (Ex. 1). The subpoena I- does not eppeerto have been issued by the Clerk at" Court as required by Art. 66. 1 Upon infionnation and belief, on Innulry 27, 2017, when did not appear at the District Attorney's Dfice as directed by the subpoena. the Stale nt'Louisrana moved that this Court a material witness bond The material wine-s bond is improperly issued given the requirements otLa. RS. 15:257. Reasons: u. The subpoena does not meet the statutory requirements of Art. 66. La 1' Art. 66 states in pertinent part: - Upon written motion of the attorney general or district attorney setting forth' . . reasonable grounds therefor, the court may order the clerk to issue subpoenas directed to the persons named in the motion, ordering them 3 to appear at a time and place designated in the order for questioning I by the attorney general or district attorney respectively, cunceming any ofiense under investignu'on by him. The court may also order the issuance ofa subpoena duces tecum. Service of a subpoena or subpoena duces tecum issued pursuant to this Article upon motion of the anomey general may be mode by any commissioned investigator firm: the attorney general's ofice, or in conformity with Article 734 of this Code. (Emphasis Added) In the instant case the subpoena dues not appear on its face to be issued by the clerk of court. 11. The subpoena fails to meet the "reasonable cause" requirements established by Art. 66 subpoenas The subpoena does not appear to have been issued in connection with the above case number as there is no entry upon the Court's Dockeunaster System indicating the request or order. (Ex. 2). Such request would need to be accompanied facts reciting reasonable grounds to issue the subpoena. In State v. Lu the Louisiana Supreme Court held that when an Art. 66 subpoena is issued the issuing party must be held to the same probable cause standards as a warrant if the subpoena is to gather physical evidence. State v. 1.22, 97:6 So. 2d 109, 125. The court went so far as to say with respect to physical evidence from '11 person, "Regardless, even assuming a subpoena duces tecum may constinrte the functional equivalent of a search warrant in some circumstances, the application II a minimum must rest upon a showing of probable cause, not simply the . :1 "reasonable grounds" required by art 66. Thus the application must contain within its four comers th'e fleets establishing the exiatmce of probable cause. Id. Here, the State . . has commanded the preset-ice (if-without any reason and "reasonable grounds" which' In this instance could be less than probable cause. Page 4 of5 c. The material witness warrant application does not demonstrate service for any proceeding scheduled for January 27, 2017. has appeared for trial on the merits sev after receiving proper service. instance no attempt was made to serveflseor the January 27, 2017, trial on the meri has also communicate of the District Attomey's Office that she does notwish the prosecution ofthe matter to continue. She has been told that she will bejailed if she does not cooperate without being told what entails cooperation. Clearly, her repealed presence at oourt in response to a properly issued and served subpoena demonstrates hr: willinylels to comply with the law. No cooperation other than to appear and answer questions from the wimess stand is required by law. . THEREFORE, given does not appear to have issued a request with supporting "reasonable grounds" prays that the Court quash the subpoena. and recall the material witness warrant 303 South Broad Street New Orleans, LA 70119 Telephone: 822-1359 Fluimllo: (504) 8224861 Page50f5 SUBPOENA A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE. You Are Hmhy Notified pursuant ISA-CERF an. as Iurm (II: Dismcx AImmey fur Ihe high of OrIuns, Io Ianry truth mnIIngjm your such matters as may be requimd ofyau. on W7 3! (1Q to Assistant DIsIrict Allurne'y: aI 5:9 mm WhIte 5mm} In the case mi: Sum of LA vs. ltem# fl'qu'KJ" Ci Case I: - 3'1 Chargets): 25, I'll InsIruuiuns: Comm the above named Assistan: Dislriu mummy upon Im-ipI of ms subpoena. Bring Inis subpoena with you In [he nIsInn Attorney's Dlfim when ynu appeal In many, THIS IS TO CERTIFY that an RETURN OF PERSONAL SERVICE Office ofthe Orleans Parish District Attorney CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS I received the plutess of (our! 0' {his Is a dupIIcaIe, THIS IS To CERTIFY mm on 0/ Sum I made due Persanal Servlce thereof by leaving same in (he hands of [he anreslgned Reciplem {phase write chlpizm's name). Inn person to whom (he nmcess Is nirmem RETURN OF DOMICILIARY SERVICE Sum of Pm sass THIS IS TO CERTIFY Ihat an lttelved (he mates of Court which {Ms Is a duplkafe. THIS IS To CERTIFY (th an of Service I made dug puspnaI Servire Ihcieniby leavIng 5am: in me hands of [he Raliviem (please wrile name), a persun nI suilahle age and discretinnp lesIding at the damitila cth: person to Wham (he said protess pr cm was issued. who was absenI at [he llmc. Ian I leamed by inluvagaIing persun in whuse hands the sald process was EX. 1 Saw" a] Prams