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CRIMINAL DISTRICT COURT FOR THE PARISH OF
ORLEANS
STATE OF LOUISIANA CASE NUMBER: 523-930
VERSUS SECTION 

MATTHEW TOTARO

Transcript of the Motion to Quash ArticTe
66 Subpoena in the above entitTed Matter,
as Heard before the HonorabTe Darry1 A.
Derbigny, Judge presiding under the date of
September 15, 2016.

APPEARANCES:

FOR THE STATE

Iain Dover, Esq., ADA

FOR THE DEFENSE:

David Anderson, Esq.

REPORTED BY:
Linda B. Legaux,
Certified Court Reporter

 

 

 

 

 

 

 

Linda Legaux
Certified Court Reporter

 

 

I IX
TYPE OF EXAMINATION
Proceedings

Court?s Ru1ing

Reporter?s certificate

PAGE 

18/20

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. ginda Legaux
Cert1f1ed Court Reporter

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MR. DOVER:

Gued merning, sir. This is an eff?
dpcketed Matter, Judge, that to protect
the identity at the parties invpived, I

wiH refer te as "letters?

Judge, in regards tu this Matter, I
have been cummunicating with an atturnev
in Caiifurnia. Hewever, this merning, I
was advised that 1eca1 ceunsei has been
retained, and is present befdre Yeur
Hunur with a Metidn te Quash the ArticIe
66 Subpeena issued yesterday. Judge, I
am prepared to gd en the Recerd with
that.

MR. ANDERSDN:
afterneun, Judge. David Andersen en

(phdneticaiiy) and the juveniIe referred
te as- This is actuaHy the case
State versus Matthew Tetaru, 523~930.
And these witnesses are the victims
in this case. I have been enruiied to
represent them an -
THE COURT:

are we taiking abuut aiieged
victims, er ene?
MR. DDVER:

Just ene, Judge. We have 
THE CUURT:



 

 

 

tinda Legaux
Certified Ceurt Reporter

Ln!

 

 

That's what I thought.
MR. DOVER:

The other one was not served.
THE COURT:

Thank you. okay.
MR. ANDERSON:

I have a record of an articie 66

subpoena being issued to as
we11as - but it?s the victim and

her mother. So I have moved to quash
both subpoenas.
THE COURT:
on what basis, sir?
MR. ANDERSON:
we11, there are several reasons.

First of a'H, _ca11ed me 1ast

night and infor that a police

 
 

officer puiied out of schoo] at

  
  

and gave the subpoena to
her directiy. so there?s a mechanicai
defect because you can?t serve a chiid
with a subpoena. You have to serve the
parents.

The second is. these subpoenas were
app1ied for vesterdav and they were
served yesterday afternoon, returnabTe

at 9:00 a.m. That?s 1ess than 18 hours.

the subpoena went into the juveniie?s

hand, which is defective service, from
when they were supposed to show up at

the office.

tinda 
Certified Court Reporter




by my ca1cu1ation, from the time that 
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The State was aware that these
peopie had counsei in CaiiFornia, but
rather than contact their 1awver, they
pu11 this giri out of schoo]. which is
incredibiv disruptive.

The first time that we can determine
that the State attempted to contact
Counse] of Record was this morning when
the State 1eft a message with the Tawver
saying ?If -'is not in my office by
11:00 I arrest her.?

I have directed the Court in a
written Motion to State versus Derrick
Todd see, where the Louisiana Supreme
Court direct1v addressed Articie 66
Subpoenas, and the Supreme Court said
that this Court can grant relief
whenever a person applies. From
hardship, abusive process, unreasonabie
or oppressive subpoenas.

I wouid argue that pu11ing the
juveniie out of schoo1 on a less than 24
hour turnaround is abusive process.
However, we don?t have to prove abusive
process. we can prove any hardship,
unreasonabie nature of the subpoena. or
its oppressive nature.

Frank1y, there is no emergency in
this case. It?s set for triai on
September 26?. And when I checked the
docket master at 11:00 p.m. 1ast night,
it 1ooked as though it were Stayed for

tinda Legaux
Cert1fied Court Reporter

 

 

 

 

 

an appe11ate proceeding.

If the State wants to interview
these witnesses, and beiieve me, they?re
cooperative, they?re showing up through
counse] today, they can simpiy ca11 and
schedule a time.

It?s manifest1y unnecessary, and
it?s far more disruptive than reasonab1e
to pu11 this gir] out of schoo] and
serve her without her mother there, and
to show up at the house, and then
threaten to arrest the witnesses when
there is no evidence that they have been
uncooperative.

So I have moved to Quash because of
the mechanica] defect, and a1so because
these witnesses have Constitutiona]
Rights. They are entit1ed to the
regu1arity and dignity of the
proceedings, just 1ike any witness, but
they have additionai Rights because
they?re registered victims in Matter,
the juveni1e and her mother.

They have a Right that the crimina1
proceeding wi11 move forward in a way
that it is it?s a genera] ob1igation
of the State, 1east disruptive to their
dai1y 1ives. And they have disregarded
that ob1igation here.

So in connection with the Motion to
Quash, I have further moved in the

written motion that the State contact

 

tinda Legaux
Certified court Reporter

 

Ithese witnesses through their attorney
oniy. I'm present here today. I?ve
given the State a copy of my Motion to
enro11, which has my office number, and
I?m going to give them, a1so, my direct
line and my ce11 phone. They?ve got my
emai]. And 1'11 be giad to scheduie an
interview at the District attorney's
office.

I?m moving the Court to instruct the

contacting them directiy.
Elias said that the District

Attorney's office and a representative
of their office not on1y had gone to the
high schooi, but aiso opened her front
door in order to 1eave a subpoena in her
foyer, which is a 1itt1e excessive,
given that there is no exigent reason
why they wouid need to deiiver the
subpoena by hand. They simpiy could
have maiied it.

There was never a reason why they
wouid need to open her front door.
They're demoiishing their reiationship
with their own witnesses. And I am here
to interpose myseif as an advocate for
the victims, and to make sure that the
case can proceed in an orderiy and
dignified fashion.

That's why the Motion has two

separate orders, and those are the

grounds on which we base it.

 

 

 

 

 

Linda Legaux
certified Court Reporter

 

 

 

 

 

1'11 conclude my argument, but I
just want the Record to refiect I'm
giving over my business card. I'm going
to write my cell phone on the back, even
though it aiso has my direct 1ine.

MR. DDVER:

Yes, sir. Thank you. So, Judge,
Counsei's own argument is seif?
defeating. Counse] argued that we had
not made sufficient attempts to contact
the victim, but then does articuiate,
Judge, that as of Friday, the State went
out to the house to attempt to contact
the victim, short of issuing an articie
66 Subpoena.

And 1et me just c1arify a few
things, Judge, ?cause I was one of the
parties that actuaiiy went out to the

house on that Friday. The victim, Ms.

?<phonema1m. was -

THE CDURT:

 

MR. DOVER:

I?m sow-m 

 

was and aiso, Judge, on that same note
and I apoiogiae, and Defense Counsei
didn't mean anything by it either may

we redact out the re1ationship between

-and the other named party,

because that wouid then show the
reiationship, because 
THE COURT:

 

 

 

 

 

tinda Legaua
Certified Court Reporter

wiTi so order. and aiso
redact out the name of the a11eged
victim's name that was previousiy piaced
on the Record.

MR. DOVER:
Thank you.

THE COURT:
Thank you.

MR. ANDERSON:

No objection. But, aTSo, I was
informed by the Minute Cierk, I noticed
that the State was referring to the
oner indiuiduai by her fui] name. I
be1ieve that an argument can be made
that she faTTs under the victim
protection Taw as weTT.

THE COURT:

Sure.

MR. ANDERSON:

And, so perhaps we can go forward by
referring to both individuals by their
initiaTs rather than their foil name in
order to afford them the protection of
the Taw.

MR. DOVER:

No probiem. No probiem.

THE COURT:
Very we11.
MR. DOVER:
so I was one of the individuais that

The

 

went to the residence of

door was not open. It was ajar, but

 

 

 

 

 

 

 

tinda Legaun
Certified Court Reporter

 

 

 

 

within the frame. And at no time
did the State of Louisiana or any
representative, any 1aw enforcement
manipuiate, open the door. or whatever.
The door remained ciosed the whoie time.
we mereiy just stuck the subpoena in the
crack. So at no time did we touch the
door or open it 1ike that. I just want
to make that perfectiy c1ear.

But. I?d 1ike to taik about the

procedurai history. So we went out,

   
 

attempted to make service on
That was not successfui. wouid
not come to the door.

we 'Iater confirmed that -was
present at the time when I spoke with
counsei that was previousiy retained out
of Caiifornia. but 1'17 get to that in a
moment.

Then. Judge that was on the 9?
of September. 0n the 10? of September,
we received a fax at 3 o'ciock in the
morning from counsei that had been
retained in Caiifornia. and Stated that
at no time did either represented party

-..-

be contacted by any representative of

wish to speak with or

 

the District Attorney's office.
THE COURT:
Is that in written communication.
sir?
MR. 

 

 

 

 

 

 

Linda Legaua
Certified court Reporter



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That was a written communication.

It was faxed to us, Judge.

THE COURT:
Very well.
MR. DOVER:

And then, we understood that. And
Counsei out of Caiifornia cited the
Louisiana victim's Rights Act to boister
that resoecting the wishes of the
parties.

what was not cited, Judge, was the
part of the victims Rights Act and
subsequent code articies that compei the
State to interview victims, require the
State to interview victims prior to
triai. That is a Right that must be
heid. The Counsei 1eft that out.

So what did, Judge, is, yesterday we
came before Your Honor and asked that an
Article 66 Subpoena be drafted to compei
the presence of -in court - I?m
sorry, at our office, today by 9:00 a.m.

After Your Honor signed that, I then

furnished a copy, on both counsei for

Totaro and counse'l for - and

-counse1 being the representative

in Caiifornia.

I then foiiowed up and actuaiiy
spoke with counsei in Caiifornia
yesterday, informing her of same. Her

finai response was ?Weii, okay?. es of

9 o?c'lock this morning, -had not

 

tinda Legaus
Certified Court Reporter


 

 

 

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appeared. I then centacted ceunse1, in

Caiifernia again, and said give
y'aii 11. My next remedy be
a materia] witness warrant?.

That message was reiayed te ceunsei
by her assistant. I speke te a 1ive
persen; her assistant. as ef 11:00
-had net shewn up, se I came
te Yeur Hener?s ceurt.

New, I?d iike te address the Metien
te Quash the suhpeena that Ceunsei has
fiied. Ceunsei cites that the case is
currentiy Stayed, pending appeiiate
review, se that there is ne exigency.

First ef a11, Judge, exigency is net
a requirement fer the issuing ef an
Articie 66 Subpeena. Further, the case
is net Stayed. It?s set fer tria], net
this week, but next week. aise, Judge,
there's a subtie and nuance case.

New, these are the decumented
efferts te centact- This dees
net acceunt fer the numereus phene
caiis, te geing te famiiy members in
different parishes trying te find this
witness. This is what we've decumented
se far. Se certainiy, Judge, time is ef
the essence.

Aise, Judge, as it says here,
?Rather than attempt service threugh
ceunsei ef recerd?. weii, Judge, at the
time that the Articie 66 Subpeena was

tinda Legaus
Certified ceurt Reperter

 

 

 

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signed, ceunsei ef recerd was an
atterney in Caiifernia. whe has net
practiced. by her ewn admissien, net
practiced te 1icense (sic) in the State
ef Leuisiana. Se, ebvieusiv effecting
service threugh the atterney in
Caiifernia is net pessibie. Aise.
Judge, it?s net practicaeie. Aise, it
deesn't have the effect ef 1aw.

Secend, Judge, -is net a
juveniie. She has reached the age ef
majerity in the State ef Leuisiana. She
is in high scheei. She has
reached the age ef majerity.

An efficiai fer the scheei caiied
her inte that efficiai?s effice. At
which time she was handed a subpeena.
Present were 1eca1 1aw enfercement frem
that jurisdictien, as weii as a pest?
certified district atterney
investigater, James D'Hearn, whe is
autherized under the cede te serve
subpeenas fer the district atterney's
effice.

Se again. persenai service was
effected en a persen whe has reached the
age ef majeritv in the State ef
Leuisiana.

New, Judge, what they're saying is
that it is unfair and un?eurdenseme, er
everiy burdenseme te cempei this persen
te appear the next day. and they cite

 

 

 

 

 

tinda Legaus
Certified Ceurt 

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State Lee, it's Derrick Todd Lee?s
case, his capital murder case. And what
the Louisiana Supreme Court uitimately
took up in Derrick Todd Lee as it
reTates to the Articie 66 Subpoena
powers is not a subpoena Atestafacatum
(phonetica11y), but another provision in
Articie 66 that a11ows for a Subpoena
ouces Tecum.

Specificaiiy. in that case, the
State was trying to do an aiternative
mechanism, 1?11 cail it. for getting a
person?s bTood and DNA sampie. They
wanted to do an articie 66 Subpoena
Duces Tecum1 and the Supreme Court nixed
that idea.

The Supreme Court was silent as to
the power to compei a person to appear
at the district attorney?s office. which
is that First person of ArticTe 66.

That first paragraph. and what they?re
saying is, Judge, that but sti11 the

articIe 66 Subpoena was improper because

-cou1d not arrange chi1d care.

-does not have a chi?ld. That

counsel couid not be made avai1ab1e or
retained.

we know that's not true because she
has counseT in Caiifornia, and was abie
to retain counse1. who is here this
morning, so we know that?s not a grounds

or an undue burden. And. Judge, that it

 

tinda Legaux
certified Court Reporter

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Id

La:

 

 

was unable to arrange transportation.

Long story short. Jud e, this is
what I'm proposing: iis current'lv

enroiied in schooi. That schooi 1ets

  

 

out eariv this afternoon. It lets out
at 2:30. I usuaiiy satay at the office
unti1 about 7:00 or 7:30. but I'ii stay
as iong as I need to. I stay here
tonight unti1 this Counse] can bring
-in to my office this evening so
we can conduct this interview.

MR. ANDERSON:

 

That's not 
MR. DOVER:

That?s what I'm asking, Judge.
.THE COURT:

Mr. Anderson?
MR. DOVER:

I?m sorry. That?s not what we

 

agreed upon. That's what I?m asking.
THE COURT:

I understand.
MR. ANDERSON:

 

First of a1], point in ciaritv,

Judge. the State argues that - has

attained the age of majority. therefore.

 

presumptively, it is appropriate for 
them to puTi her out of schooi and serve 
her with a poiice officer. She's 
She has achieved the age of criminal

but not the age where

she?s competent to receive service of

 

 

tinda Legaua
Certified Court Reporter

I5

 

Id



 

 

process.

Second; obviousiy, I?m a Tittie Tate
to the game. I?m enroTTing as TocaT
counse], and I?m right in the thick of
it. The State indicated that the prior
Tawyer sent a Tetter saying that the
witnesses did not want to speak with the
State. That?s true. And this
highTights the reason why it?s important
to have Tocai counseT, because the
CaTifornia Tawyer did not know about the
ArticTe 66 Subpoena issue.

The argument here is not that the
State has not made reasonabie efforts.
The argument is that the State has been
extremeiy forcefu], and what they are
doing is trying to strong?arm the
witnesses. They give an 18?hour return
date on the subpoena.

THE COURT:

CounseT, Tet?s cut through the chase
here. You?re not, based upon your
entire presentation this morning,
cha11enging the suggestion as to the
materiaiity of this particuTar witness,
are you?

MR. ANDERSON:

NC).

THE COURT:

Okay.

MR. ANDERSON:

They want to cooperate, but they are

 

. tinda Legaux
certified Court Reporter

 



LIIvery upset with the D.A.

THE COURT:
what I also understand is that I
beiieve I believe that based upon

the State?s - the Court?s rather,
with the efforts of the

State to secure the resence, or obtain
the presence ofi that they, the

State, were under the impression, up to

 

your appearance, that was, in fact,
represented by Caiifornia counsei, and
a1] efforts to secure her presence, in
networking, if you toward that
end were conducted with Caiifornia
counse]. Untii your appearance 
MR. ANDERSON:

That makes sense.
THE COURT:

Sir, 1et me cut to the chase: Now
that you?re here, what about the
overture made by the State just a moment
ago, to have you - to set a time. I'm
not going to hoid the The Court has no
interest in disrupting this person?s
school, or another activity.

I agree with you. I don?t want to
go so far as to victimize any aiieged
victim here. I don?t want to do that.
By the same token, the Court is
concerned, and does endorse the Motion
of the State?s to contact

and interview, and do what it needs to

 

tinda Legaux
Certified Court Reporter



 

 

 

 

 

in order to be abTe to move this case
forward responsibTy. I think those aims
are not mutuaTTy echusive.
MR. ANDERSON:

Agreed.
THE COURT:

And what I?m ordering you a11 to do
right now, is if the date and the
arrangement proposed just a moment ago
by the State is unsatisfactory, Mr.
Anderson, that you simpTy give the State
a date, a time, a Tocation by which this
can be achieved.

MR. ANDERSON:

And that?s fine, Judge. I have ton
the State, I?m on a fTight to Chicago at
3:00, and I?m back Monday afternoon.
I?m set for triaT in Covington next
week, but based upon the text I just
received, I?m expecting a11 the triaTs
to wash. So I can be here Tuesday
afternoon and do an interview,
tentativeTy.
THE COURT:

Mr. Dover?
MR. DOVER:

I?d prefer Monday, Judge, if
possibie, Tate evening.
MR. ANDERSON:

10:00 

MR. DOVER:
That?s fine.

 

tinda Legaux
Certified Court Reporter

 

 

 

MR. ANDERSON:

I?d have to ask my c1ients. But
I?m f1ying in Monday evening and I can
ta1k to them about that. I?m not this
is spTitting hairs, if we?re going to
meet ear1y next week, it seems fine.

THE COURT:

Look, you?ve got the Court in the
middTe of this hair-spTitting.
MR. Anderson:

And I don?t want that, Judge.
THE COURT:

And I don?t want to be here. It?s
unnecessary.
MR. ANDERSON:

Wei], I don?t want them to arrest my
c1ients, and they?ve issued materia]
witness warrants, and I think that?s 
THE COURT:

That?s CounseT?s responsibiTity to
make your c1ient avaiTabTe; right, in
order for the State to discharge its
responsibiTity in connection with this
prosecution.

MR. ANDERSON:

of course, Your Honor. And 
THE COURT:

And I understand your position as
we11. I understand that. Once again, I
think reasonabTe accommodations can be
made to accommodate both interests. I?m

ordering you to do so, okay.

 

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Certified Court Reporter

 



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MR. DOVER:

Yes, Judge.
THE COURT:

We do have a triai date scheduied in
this case. es to the issue: I?m going
to deny the Motion to Quash the Subpoena
at this point in time. So that wi11
give you the opportunity, simpiy,
simpiy, to come to terms with the State
on how you want to produce your witness.

I wi11 take no action adverse to

-un1ess and untii I receive

notification that there?s been some kind
of breakdown in communication which has

aiiowed this thing to become staiemated.
once again. I don't see any reason for

that to happen.

MR. ANDERSON:

My understanding is the Court is
aiiowing us to reschedule the subpoena
by consent. No objection.

THE COURT:

That wouid be the proper way of

putting it. Thank you. Counsei.

 

 

 

 

 

 

 

 

tinda Legaux
Certified Court Reporter

 

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PAGE

I, Linda B. Legaux, Certified Court
Reporter, in and for the State of Louisiana,
the officer, as defined in Ruie 28 of the
Federai Ruies of Civii Procedure and/or Articie
1434 of the Louisiana Code of Civii
Procedure, before whom these proceedings were
heid, do hereby state for the Record:

That due to the interaction in the
spontaneous discourse of the proceedings,
dashes have been used to indicate pauses,
changes in thought, and/or taik?overs; that
same is the proper method of a court reporter?s
transcription of proceedings, and that the
dashes do not indicate that words or
phrases have been 1eft out of this transcript;

That any words and/or names which cou1d
not be verified through reference materiai have
been denoted with the phrase ?Cphonetic).?

mampwg

Lin a B. Legaux,

Certified Court Reporter

 

. Linda Legaux
Certified Court Reporter

 

IQ

Lo.)

 

 

I I .A 

This certificate is vaiid on1y for a transcript
accompanied by my originai signature and
originai required sea] on this page.

I, Linda B. Legaux, Officiai Court
Reporter in and for the State of Louisiana,
empioyed as an officiai Court Reporter by the
0r1eans Parish Criminai District Court, for the
State of Louisiana, as the officer before whom
this testimony was taken, do hereby certify
that this testimony was reported by me in the
steno mask reporting method, was prepared and
transcribed by me or under my direction and
supervision, and is a true and correct
transcript to the best of my and
understanding, that the transcript has been
prepared in compiiance with transcript format
guideiines required by statute or by ruies of
the board or by the Supreme Court of Louisiana,
and that I am not reiated to counse] or to the
parties herein, nor am I otherwise interested

in the outcome of this Matter.

  

fludLM__/6L__ 21

Linda B. Legaux (912 4)
Certified Court Reporter
Criminai District Court
Parish of Orieans

State of Louisiana

 

Linda Legaux
Certified Court Reporter