State of Louisiana Versus Timothy P. Roussel

STATE OF LOUISIANA NO. 19-K-189

VERSUS FIFTH CIRCUIT

TIMOTHY P. ROUSSEL COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 75,23, DIVISION "A"
HONORABLE JASON VERDIGETS, JUDGE PRESIDING

July 15, 2019

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.

WRIT GRANTED; MOTION TO QUASH
INDICTMENT GRANTED
HJL
SJW
JJM

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Ricky L. Babin
Charles S. Long
Robin C. O'Bannon

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Jeffrey M. Landry
Grant L. Willis
Barry D. Milligan

COUNSEL FOR DEFENDANT/RELATOR,
TIMOTHY P. ROUSSEL
Ralph Capitelli
Brian J. Capitelli
Justine G. Daniel

LILJEBERG, J.

Defendant/relator, Timothy P. Roussel, seeks review of the trial court’s

March 13, 2019 Judgment, which denied his Motion to Quash the Indictment for

Violation of Grand Jury Secrecy. Defendant argues that during the grand jury

proceedings which led to his indictment, assistant district attorneys for the Parish

of St. James (“ADA”) disclosed the testimony of prior grand jury witnesses to

subsequent witnesses while appearing before the grand jury. Defendant contends

these disclosures violated laws governing grand jury secrecy and provided a basis

to quash his indictment pursuant to State v. Gutweiler, 06-2596 (La. 4/8/08), 979

So.2d 469. For the following reasons, we grant defendant’s writ application and

quash his indictment based on our finding that the State violated grand jury

secrecy.

FACTUAL AND PROCEDURAL BACKGROUND

On September 28, 2016, a St. James Parish grand jury indicted defendant,

Timothy P. Roussel, with six counts of malfeasance in office in violation of La.

R.S. 14:134. The indictment states that, in his capacity as the St. James Parish

President, defendant committed six counts of malfeasance of office when he

improperly “gave/donated/loaned” the resources of St. James Parish for the benefit

of a private business and several individuals all in violation of La. Const. Art. 7 §

14 and La. R.S. 42:1461. In Count 1, the indictment states defendant

“gave/donated/loaned” a gas line, meter and labor costs to Millennium Galvanizing

“without a contract with Millenium Galvanizing for the payment of the gas line,

meter and labor costs, for the cost of the gas, or the use of or transportation of gas

through parish lines.”

Count 2 alleges that defendant authorized St. James Parish to pay $9,100.00

to drive 24 piles on private property. In Counts 3, 4 and 5, respectively, the State

alleges that defendant authorized Blaise Gravois, St. James Parish Director of

Operations and Public Works, to use public employees and equipment on private

properties to remove a shed (Count 3), demolish a mobile home (Count 4) and

remove a playhouse and debris (Count 5). Finally, in Count 6, the State alleges

that defendant authorized the use of public employees and public equipment to

enhance and/or improve private property for the sole benefit of the private property

owner at a cost to St. James Parish in the amount of $25,000. The indictment

alleges that the work provided by the Parish in each of these instances served no

legitimate public purpose.

In his writ application, defendant indicates that on August 22, 2018, the

State, though the Office of the Louisiana Attorney General, filed a sealed Motion

for In Camera Inspection of Grand Jury Transcripts.1 Defendant contends he was

not notified that the State filed this motion until several months later. In the

motion for in camera inspection, the Attorney General’s Office indicated it had

recently received the transcripts from the grand jury proceedings conducted by

assistant district attorneys in the St. James Parish District Attorney’s Office, which

included testimony from 36 witnesses presented to the grand jury on several

different dates starting in June 2016 and continuing through September 2016.

Upon receipt, the Attorney General’s Office immediately reviewed the materials

for “potential exculpatory information or other grand jury irregularities that would

require reporting to the Court and/or opposing counsel in accordance with

Louisiana Code of Criminal Procedure Article 434.1(B).”2

The Attorney General’s Office further explained that it completed “review

sheets” for each of the 36 witnesses. On these review sheets, the Attorney

General’s Office noted “numerous situations where the questioning ADA refers

back to grand jury testimony of other witness [sic].” On the review sheet for each

1
The St. James Parish District Attorney’s Office and Office of the Louisiana Attorney General are both enrolled as
counsel for the State of Louisiana in these proceedings. According to the parties, the Attorney General is serving as
lead counsel.
2
La. C.Cr.P. art. 434.1(B) provides that “[t]he district attorney shall also disclose to the defendant material evidence
favorable to the defendant that was presented to the grand jury.”
2

witness, the Attorney General’s Office noted the page number of the questioning

and testimony at issue and coded the interaction as either “G” or “PG,” which is

short for “Gutweiler/Potential Gutweiler,” respectively.3 The Assistant Attorney

General’s Office also noted testimony that it considered “potential Brady”4

material and coded each of these instances as “‘PB’ with an explanation as to why

it might be exculpatory in brackets.”5

The Attorney General Office’s motion for in camera inspection also

provided the trial court with the following discussion of the Louisiana Supreme

Court rulings regarding grand jury secrecy in Gutweiler, supra, and State v.

Gourgues, 16-2255 (La. 10/16/17), 226 So.3d 1116:

As recently as last year, the Louisiana Supreme Court upheld the
principle from Gutweiler when they stated La. Code of Criminal
Procedure Article 434 ‘prohibits the divulgence of testimony and
other matters occurring during grand jury meetings.’ State v.
Gourgues, 2016-2255 (La. 10/16/17) 226 So.3d 1116.

III.

In State v. Gutweiler, 06-2596 (La. 04/08/08) 979 So.2d 469,
the Court held a defendant is not required to show prejudice or injury
in order to have an indictment quashed for the State’s violation of
grand jury secrecy because it would be impossible for the accused to
prove the injury before the trial. It is not the fact whether prejudice
actually resulted that is of primary and vital concern, but that an
opportunity was made possible to exert prejudice and influence on
members of the grand jury that must be guarded against. The
disclosure of the transcript of a witness’s grand jury testimony to
another witness, prior to his testimony, is a violation of grand jury
secrecy no different than that of the presence of an unauthorized
person in the grand jury room, and can require quashal of the
indictment without the necessity of the accused showing prejudice or
injury thereby. Gutweiler at id.

On October 29, 2018, the trial court issued a judgment with written reasons

on the State’s motion for an in camera inspection of the grand jury materials. In

3
As discussed more fully below, the Attorney General’s Office noted 26 Gutweiler violations and 6 potential
Gutweiler violations on review sheets for 13 of the grand jury witnesses.
4
Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).
5
Defendant does not raise any issues relating to potential Brady materials in the instant writ application. However,
defendant does have a pending writ before this Court in Case No. 19-K-143, wherein he seeks review of the trial
court’s decision that the State did not have to disclose any of the materials presented for in camera inspection to the
trial court by the Attorney General’s Office. Based on our decision below to grant the instant writ application, we
issued a ruling on July 15, 2019, in Case No. 19-K-143 finding the matter moot.
3

the judgment, the trial court stated it examined the grand jury material “searching

for any evidence that would appear to be exculpatory or favorable to the

Defendant, Timothy Roussel, as is required under the Brady standard.” The trial

court further noted “instances in which there were references to prior grand jury

testimony.” However, the trial court did not discuss the issue raised by the State as

to whether these “references” violated grand jury secrecy pursuant to Gutweiler.

Rather, the trial court concluded that after its in-camera review, “there was no

evidence of material that would qualify for disclosure under the standards laid out

in Brady or its progeny at this time.”

On or about November 16, 2018, defendant filed the motion to quash the

indictment at issue before this Court. In his motion, defendant noted that the State

admitted to disclosing grand jury witness testimony to other grand jury witnesses.

Defendant argued that these disclosures violated La. C.Cr.P. art. 434 and

Gutweiler, supra, and that the release of prior grand jury testimony to another

grand jury witness is sufficient by itself to quash the indictment.

The State, in its opposition, conceded that “there were instances where prior

grand jury witness testimony was shared with subsequent testifying grand jury

witnesses during their questioning under oath before the grand jury.” However, it

argued that in this case, unlike Gutweiler, all the disclosures took place during the

meeting of the grand jury, at which both the grand jurors and the witnesses were

sworn to secrecy such that they could not disclose what occurred at the meeting.

The State distinguished Gutweiler, noting that in that case, the prosecution gave

transcripts of one of the witness’ grand jury testimony to two subsequent grand

jury witnesses prior to their testimony and outside of the grand jury proceedings.

The State further argued that there can be no violation of grand jury secrecy

during a meeting of the grand jury. It hypothesized that if a grand juror asked a

4

question about another grand juror’s testimony, then an indictment would be

immediately subject to quashal and “turn grand jury proceedings on their head.”

Defendant filed a response, maintaining that the indictment should be

quashed. He argued the State did not contend the disclosures they acknowledged

were authorized by any exception set forth in La. C.Cr.P. art. 434, nor did it claim

that it had a “compelling necessity” for divulging secret grand jury testimony to

other witnesses. He argued that since these are the only situations in which

disclosure is allowed, the State’s argument that the disclosures were permissible

because they took place during the meeting of the grand jury has no legal basis.

He further argued that no statutory or constitutional exception to grand jury

secrecy authorizes a prosecutor to examine one grand jury witness by disclosing

the testimony of another grand jury witness.

After holding a hearing on the motion to quash the indictment on February

19, 2019, the trial court took the matter under advisement. On March 13, 2019, the

trial court issued a judgment with reasons denying the motion to quash. In its

judgment, the trial court reasoned the present matter was distinguishable from

Gutweiler, because in that matter the prosecutor provided transcripts of a prior

grand jury witness to an expert who would testify before the grand jury at a later

time. The trial court also noted that it previously reviewed the grand jury

transcripts, “did not find any impropriety on the part of the prosecution,” and

concluded that defendant “made no showing that there was a violation of grand

jury secrecy.” The trial court also mentioned this Court’s decision in a related

case, State v. Gravois, 18-615 (La. App. 5 Cir. 2/26/2019) (unpublished writ

disposition) (JJ. Chaisson, Johnson, Windhorst), where after reviewing the grand

jury transcripts, the Court “found no information contained therein that would

warrant under applicable law and jurisprudence, the production of any portion of

5

the grand jury transcripts.”6 In denying the motion to quash, the trial court

determined that “after a review of the record the Gutweiler disclosure factors were

not met.”

DISCUSSION

In his writ application, defendant delineates two assignments of error:

(1) The District Court abused its discretion in determining that the
State’s unauthorized divulgence of grand jury testimony did not
violate grand jury secrecy.

(2) The District Court abused its discretion by finding that the State’s
unauthorized disclosure of grand jury testimony did not warrant
quashal of the indictment under Gutweiler.

Defendant first argues that Louisiana’s grand jury secrecy laws generally

prohibit all persons having confidential access to grand jury information from

divulging the testimony of witnesses and all other matters occurring at, or directly

connected with, a meeting of the grand jury. He argues that the only exceptions

permitting disclosure are set forth in La. C.Cr.P. arts. 434 and 434.1, and there is

no exception to grand jury secrecy that authorizes the disclosure of a grand jury

witness’ testimony to another grand jury witness at any time before, during, or

after the grand jury proceedings. He avers that if the legislature wanted to create

an exception allowing the State to reveal secret grand jury testimony to other grand

jury witnesses, it would have done so. He notes that following the Gutweiler

decision, the legislature enacted a statutory exception specifically allowing the

State to disclose “information and documents provided to a grand jury” to its

expert witnesses and investigators. He further maintains that the State did not

obtain or seek judicial authorization before making such disclosures of grand jury

testimony to subsequent grand jury witnesses.

6
As discussed more fully below, the State did not file a motion for in camera inspection and did not provide review
sheets noting Gutweiler and potential Brady issues in the related matter, State v. Gravois, 18-615 (La. App. 5 Cir.
2/26/2019). Furthermore, the defendant in the related matter, Blaise Gravois, did not raise any issues relating to
Gutweiler in his writ application.
6

He finally argues that he is not required to establish any impropriety on the

part of the prosecution in order to have the indictment quashed; he contends the

release of the materials themselves should be sufficient by itself to quash the

indictment.

This Court applies an abuse of discretion standard when reviewing a trial

court’s determination on a motion to quash. State v. Whitley, 14-737 (La. App. 5

Cir. 03/25/15), 169 So.3d 658, 661; State v. Lommasson, 11-536, 11-538 (La. App.

5 Cir. 11/29/11), 81 So.3d 796, 799. A trial court abuses its discretion by denying

a motion to quash if its ruling is based on an erroneous view or application of the

law. State v. Hayes, 10-1538 (La. App. 4 Cir. 9/1/11), 75 So.3d 8, 15, writ denied,

11-2144 (La. 3/2/12), 83 So.3d 1043 (citing Cooter & Gell v. Hartmarx Corp., 496

U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)).

Grand Jury Secrecy

Regarding grand jury secrecy, La. Const. Art. V, § 34(A) states:

There shall be a grand jury or grand juries in each parish, whose
qualifications, duties, and responsibilities shall be provided by law.
The secrecy of the proceedings, including the identity of witnesses,
shall be provided by law. [Emphasis added.]

The Louisiana Legislature permits the disclosure of grand jury testimony in

limited circumstances. La. C.Cr.P. art. 434, governing the secrecy of grand jury

proceedings, was enacted in 1972 and remains unchanged to date:

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

7

B. Whenever 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. The district attorney or the
attorney general may direct to the district attorney of another parish
any and all evidence, testimony, and transcripts thereof, received or
prepared by the grand jury of the former parish, concerning any
offense that may have been committed in the latter parish, for use in
such latter parish.

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

Therefore, La. C.Cr.P. art. 434 permits the disclosure of grand jury

information in four instances: (1) after the indictment, persons present may reveal

statutory irregularities occurring during grand jury proceedings to defense counsel,

the attorney general, the district attorney, or the court; (2) a court may permit

disclosure of grand jury testimony to show a grand jury witness committed perjury;

(3) a witness may discuss his testimony with the court, attorney general, district

attorney, or counsel for the person under investigation or indicted; and (4) after

notification to his district attorney, the foreman of a grand jury who discovers a

crime may have been committed in another parish shall make that discovery

known to the attorney general, and the district attorney or attorney general may

direct any relevant evidence and testimony to the district attorney of another

parish. See State v. Ross, 13-175 (La. 3/25/14), 144 So.3d 932, 938-39.

In State v. Peters, 406 So.2d 189, 190-91 (La. 1981), the Louisiana Supreme

Court recognized an exception to grand jury secrecy by determining that Brady,

supra, required a prosecutor to disclose a witness’s grand jury testimony to a

defendant when the testimony contained material exculpatory evidence. See Ross,

supra.

In 2012, the Louisiana legislature codified this exception, as well as two

additional exceptions, by enacting La. C.Cr.P. art. 434.1, which provides as

follows:

8

A. Notwithstanding the provisions of Article 434, the state may disclose
to state or federal prosecutors or law enforcement officers, or to
investigators on the staff of the district attorney or attorney general, or
to expert witnesses, information and documents provided to a grand
jury. Any person to whom such disclosure is made shall not engage in
further disclosure of the material and shall use the disclosed material
solely for purposes of investigation of criminal offenses and
enforcement of criminal laws.7

B. The district attorney shall also disclose to the defendant material
evidence favorable to the defendant that was presented to the grand
jury.

C. The district attorney may also disclose to a witness at trial, including
the defendant if the defendant testifies, any statement of the witness
before the grand jury that is inconsistent with the testimony of that
witness.

Accordingly, these three additional exceptions: 1) permit the State to

disclose information and documents provided to the grand jury to state and federal

prosecutors and law enforcement, as well as expert witnesses and investigators on

its staff; 2) require the district attorney to disclose to a defendant material evidence

favorable to the defendant; and 3) permit a district attorney to disclose to a trial

witness his grand jury testimony that is inconsistent with his trial testimony.

The Louisiana Supreme Court has recognized that La. C.Cr.P. art. 434

prohibits the divulgence of testimony and other matters occurring during grand

jury proceedings. Gutweiler, 979 So.2d at 479; State v. Gourgues, 16-2255 (La.

10/16/17), 226 So.3d 1116. In Ross, supra, the Supreme Court further declared

that outside of the specific statutory exceptions allowing for the disclosure of grand

jury testimony, “a party seeking disclosure of state grand jury materials must show

a compelling necessity for the materials.” Id. at 938. The Ross court further noted

that “the required showing of compelling necessity for the release of grand jury

information applies to government attorneys as well as private litigants.” Id.; see

also In Re Grand Jury, 98-2277 (La. 4/13/99), 737 So.2d 1, 10.

7
In Gutweiler, supra, the Louisiana Supreme Court determined the State violated grand jury secrecy because La.
C.Cr.P. art 434 did not allow the State to provide grand jury materials to its expert witness and investigator without
prior court approval. The Louisiana Legislature enacted La. C.Cr.P. art. 434.1(A), which now permits disclosure of
information and documents provided to the grand jury to State experts and witnesses.
9

The Ross court also outlined the many reasons for maintaining grand jury

secrecy, including the promotion of free and open disclosure of information by

witnesses and acting as a shield to protect innocent people under investigation

from sustaining injury to their reputations:

Secrecy helps to prevent the escape of prospective indictees by
providing no forewarning to them of the investigation in progress; it
insures that the grand jury investigation can proceed freely by
protecting the grand jurors from outside influences and threats of
reprisal; it serves to prevent the subordination of perjury and
tampering of witnesses by targets of the investigation; it promotes free
and open disclosure of information by witnesses without fear of
retaliation; and it acts as a shield by protecting innocent people under
investigation from the injury to their reputations that could be caused
by the disclosure of baseless accusations. However, the secrecy of
grand jury proceedings is not absolute. This court has stated that in
some situations, justice may demand that discrete portions of
transcripts be made available for use in subsequent proceedings.

Id. at 937; see also In re Grand Jury, 737 So.2d 11.

As discussed above, the State in the instant matter asked the trial court to

conduct an in camera review of the grand jury testimony for Gutweiler and Brady

material. In Gutweiler, supra, the Louisiana Supreme Court determined that the

State violated grand jury secrecy by providing a transcript of a prior witness’ grand

jury testimony to witnesses the State planned to bring before the grand jury at a

later date and quashed the defendant’s indictment. Id. at 477-78. In that case, the

State provided the transcript to its chief forensic arson expert witness without

obtaining prior court approval. The expert later testified before the grand jury.

The State also provided grand jury transcripts to its lead investigator in order to

facilitate his investigation of perjury by certain grand jury witnesses, also without

court approval. The trial court found the State violated grand jury secrecy laws by

providing transcripts to these individuals without prior court approval and granted

the defendant’s motion to quash the indictment against him. The appellate court

affirmed. Id. at 483-84.

10

In its writ application to the Supreme Court, the State argued that La. C.Cr.P.

art. 434 permitted disclosure of grand jury proceedings to law enforcement

investigators and experts hired by the State, contending they should be considered

as part “all persons having access to grand jury proceedings,” under Article

434(A). However, following a discussion of the law governing statutory

interpretation and after reviewing the laws governing grand jury secrecy as a

whole, the Supreme Court found that the State’s interpretation was not supported

by the language of the statute and did not conform to the purpose of the law, that

is, to mandate the secrecy of witness testimony and all other matters occurring at a

convening of the grand jury. Id. at 477.

In the present matter, the State does not dispute that it disclosed prior grand

jury testimony to subsequent grand jury witnesses during the grand jury sessions.

In the review sheets provided with its motion for in camera inspection, the State

noted 32 “Gutweiler” and “Potential Gutweiler” violations. In most instances

noted on the review sheets, the ADA informed the witness that a document or

testimony was provided by a certain individual during their prior testimony before

the grand jury. We note that the ADA disclosed the identity and content of the

testimony of one particular grand jury witness to two subsequent witnesses in a

manner that clearly indicated the ADA believed the testimony provided by the

prior witness was evasive and unbelievable.8 In another instance, the ADAs

disclosed a prior witness’ testimony regarding the pile driving services provided by

the Parish on private property as alleged in Count 2 and provided commentary to

the subsequent witness indicating that the prior witness engaged in criminal

activity. During this exchange, the ADA also mischaracterized the substance of

another witness’ testimony regarding requests to the Parish to provide assistance

with the pile driving services.

8
The content of this witness’ testimony related to Count 1 involving the gas line and meter provided by the Parish to
Millenium Galvanizing.
11

In its opposition to the motion to quash, the State argued the present situation

is distinguishable from Gutweiler because the State’s disclosures of prior grand

jury testimony to subsequent witnesses took place during a grand jury session. The

State argued that it cannot violate grand jury secrecy during a meeting of the grand

jury. The State noted that unlike the investigator and expert in Gutweiler, the

grand jury witnesses to whom the State disclosed prior grand jury testimony were

sworn to secrecy and cannot disclose what occurs or what they learn at the

meeting. The State pointed out that La. C.Cr.P. art. 434(A) requires all persons

present at a grand jury proceeding, including a witness under examination, to keep

the testimony of witnesses and all other matters occurring during the grand jury

proceedings secret. The State further argues that La. C.Cr.P. art. 440 requires a

grand jury witness to take an oath “to keep secret, except as authorized by law,

matters which he learns at a grand jury meeting.”

The question for this Court is whether these laws governing grand jury

secrecy permit a prosecutor to disclose the testimony of a prior grand jury witness

to another grand jury witness while under examination before the grand jury.

When a law is clear and unambiguous and its application does not lead to absurd

consequences, the law shall be applied as written and no further interpretation may

be made in search of the intent of the Legislature. La. C.C. art. 9; Pumphrey v.

City of New Orleans, 05-979 (La. 4/4/06), 925 So.2d 1202, 1209. When the

language of the law is susceptible of different meanings, it must be interpreted as

having the meaning that best conforms to the purpose of the law. La. C.C. art. 10;

Pumphrey, 925 So.2d at 1209. The meaning and intent of a law is determined by

considering the law in its entirety and all other laws on the same subject matter,

and placing a construction on the provision in question that is consistent with the

express terms of the law and with the obvious intent of the Legislature in enacting

it. Pumphrey, 925 So.2d at 1210.

12

Before we begin our analysis of the grand jury secrecy laws, we note that in its

reasons for denying defendant’s motion to quash the indictment, the trial court

relied in part on this Court’s prior decision in a related matter denying defendant

Blaise Gravois’ writ application seeking review of the trial court’s denial of his

motion to compel the production of the same grand jury transcripts. 9 See State v.

Gravois, 18-615 (La. App. 5 Cir. 2/26/2019) (unpublished writ decision). The trial

court noted in its written reasons that this Court determined that it did not find

information in the grand jury transcripts that would warrant providing Mr. Gravois

access to the transcripts. We note, however, that the writ application filed by Mr.

Gravois in the related matter did not raise assignments of error with respect to

alleged violations by the State of grand jury secrecy under Gutweiler or the

applicable grand jury secrecy provisions. Furthermore, the record in the related

matter did not contain the “review sheets” prepared by the Attorney General’s

Office for each witness outlining the proposed questioning and testimony

potentially violating grand jury secrecy laws. Therefore, we find this prior ruling

is not determinative of the issues currently before this Court.

We further acknowledge that the present matter is distinguishable from

Gutweiler, supra, as the disclosures occurred during a grand jury session after the

witness was sworn to maintain secrecy, as opposed to providing transcripts to

prospective grand jury witnesses who have not yet been sworn to secrecy.

However, simply because a grand jury witness is bound by law to maintain secrecy

does not mean he or she is entitled to unfettered access to all prior grand jury

testimony without prior court approval.

Pursuant to La. C.Cr.P. art. 433(A)(1)(c), a “witness under examination”

may be present at grand jury session during his or her own examination. La.

9
Mr. Gravois is the St. James Parish Director of Operations and Public Works. On September 26, 2018, the same
grand jury also returned an indictment against Mr. Gravois, which included five counts of malfeasance in office in
violation of La. R.S. 14:134, identical to Counts 1 through 5 charged against defendant. The District Attorney is
prosecuting Mr. Gravois in separate proceedings before a different trial court.
13

C.Cr.P. art. 434(A) requires “all persons present at a grand jury meeting . . . shall

keep secret the testimony of witnesses and all other matter occurring at, or directly

connected with, a meeting of the grand jury.” Official Revision Comment (b) to

Article 434 provides that “[t]he secrecy required of a witness serves to restrain him

from disclosing matters which he learns 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.” Finally, as noted above, La. C.Cr.P. art. 440 requires a grand jury witness

“to swear to keep secret, except as authorized by law, matters which he learns at a

grand jury meeting.”

These provisions contemplate that a grand jury witness may learn certain

information regarding the grand jury investigation during his or her examination

before the grand jury. However, these provisions do not permit a witness under

examination unfettered access to prior grand jury testimony. Contrary to the

State’s arguments, these provisions do not declare that a prosecutor cannot violate

grand jury secrecy during a grand jury session. Furthermore, these provisions do

not permit a witness to be present during another grand jury witness’ examination,

and they do not permit a prosecutor to inform a subsequent witness about the

content of the testimony provided by another specific grand jury witness.

As outlined above, disclosure by a prosecutor of the content of a particular

witness’ grand jury testimony to another grand jury witness is not a statutory

exception to grand jury secrecy laws set forth in either La. C.Cr.P. arts. 434 or

434.1, unless the subsequent witness is a prosecutor or law enforcement officer, or

state expert or investigator. The State is also permitted to disclose material

evidence favorable to the defendant that was presented to the grand jury and can

disclose to a trial witness, any prior inconsistent statements that witness made

14

before the grand jury. None of these exceptions permit the numerous disclosures

made by the State in the present matter.

Most significantly, if the State believed a compelling need existed to examine

a subsequent grand jury witness about testimony provided by a particular witness,

it could have sought leave from the court prior to the disclosures. See Ross, supra.

However, the State chose not to do this and instead, made numerous disclosures,

which do not seem to rise to the level of a compelling necessity. In fact, in nearly

every instance noted by the State on the review sheets as a Gutweiler or potential

Gutweiler, our review indicates it was unnecessary for the State to disclose the

identity and content of the prior witness’ testimony in order to question the witness

about the particular subject at issue. The State could have simply questioned the

witnesses about information it learned without informing the witness that the

information was obtained from a prior witness during his grand jury testimony.

Unnecessarily informing a subsequent grand jury witness of the content of a

particular witness’ testimony could have influenced the subsequent witness’

testimony and thwart the goal of promoting free and open disclosure of

information by the witness.

We further note that the instances where the ADAs expressed their belief that

a prior witness’ testimony was evasive and unbelievable, mischaracterized prior

testimony, and insinuated that a witness may have engaged in criminal activity also

thwart the reasons for maintaining grand jury secrecy. In addition to potentially

influencing the subsequent witness’ testimony, these actions also potentially

influenced the grand jury’s interpretation of the prior grand jury testimony.

Through their commentary and characterizations of the prior testimony, the ADAs

possibly exerted prejudice and influence on members of the grand jury that grand

jury secrecy laws seek to prevent.

15

Based on the foregoing, we find that the trial court abused its discretion by

failing to conclude that the State violated grand jury secrecy under the facts and

circumstances present in this matter.

Quashing the Indictment

In his second assignment of error, defendant contends the trial court abused

its discretion by failing to quash his indictment.

After confirming that the State violated grand jury secrecy, the Supreme

Court in Gutweiler relied upon State v. Revere, 94 So.2d 25 (La. 1957), as support

for its ruling that the trial court properly quashed the indictment for the State’s

violation. Gutweiler, 979 So.2d at 478. In Revere, the court was presented with a

grand jury secrecy violation: the presence of an unauthorized person in the grand

jury room. 94 So.2d at 27. The Revere court held the defendant was not required

to show prejudice or injury in order to have an indictment quashed for the State’s

violation of grand jury secrecy because it would be impossible for the accused to

prove the injury before the trial. Id. at 33. The court noted that it was not the fact

whether prejudice actually resulted that was of primary and vital concern, but that

an opportunity was made possible to exert prejudice and influence on members of

the grand jury that must be guarded against. Id. The Gutweiler court reasoned that

the disclosure of the transcript of a witness’ grand jury testimony to another

witness, prior to his testimony, is a violation of grand jury secrecy no different than

that of the presence of an unauthorized person in the grand jury room, and can

require quashal of the indictment without the necessity of the accused showing

prejudice or injury thereby. Gutweiler, 979 So.2d at 481.

Because defendant was not required to show prejudice or injury in order to

have the indictment quashed for a violation of grand jury secrecy, we find that that

trial court abused its discretion by declining to grant defendant’s motion to quash

the indictment against him. Based on our finding above that the State violated

16

grand jury secrecy, we vacate the trial court’s March 13, 2019 Judgment denying

defendant’s Motion to Quash for Violation of Grand Jury Secrecy and enter a

judgment quashing the indictment brought against the defendant in this matter.

WRIT GRANTED; MOTION TO QUASH
INDICTMENT GRANTED

17

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 15, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-K-189
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HON. JASON VERDIGETS (DISTRICT JUDGE)
CHARLES S. LONG (RESPONDENT) GRANT L. WILLIS (RESPONDENT) BRIAN J. CAPITELLI (RELATOR)
ROBIN C. O'BANNON (RESPONDENT) JUSTINE G. DANIEL (RELATOR)

MAILED
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ATTORNEY AT LAW (RESPONDENT) ATTORNEY GENERAL
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