NO: MMX-CR14-0675616T : SUPERIOR COURT STATE OF CONNECTICUT : JUDICIAL DISTRICT OF MIDDLESEX v. : AT MIDDLETOWN, CONNECTICUT EDWARD F. TAUPIER : OCTOBER 17, 2014

BEFORE THE HONORABLE DAVID P. GOLD, JUDGE A P P E A R A N C E S : Representing the State of Connecticut: ATTORNEY BRENDA L. HANS Assistant States Attorney One Court Street Middletown, CT 06457 Representing the Defendant: ATTORNEY RACHEL M. BAIRD Rachel M. Baird & Associate 8 Church Street #3b Torrington, CT 06790 Recorded By:

2 Carrie Bogdan Transcribed By: Carrie Bogdan Court Recording Monitor 1 Court Street Middletown, CT 06457

1

THE COURT: I just want to, kind of, set an 1

order now as to how were going to proceed here. 2

As I understand it, in the Taupier case, todays 3

hearing is under the provisions of State v. Fernando 4

A., and it concerns the protective order that the 5

Court entered in one of the files. And perhaps 6

its -- what is the docket number, Attorney Hans, of 7

what it sometimes has been called the voyeurism file? 8

ATTY. HANS: Yes, Your Honor. 9

THE COURT: But whats the docket number of 10

that? 11

ATTY. HANS: Docket Number CR13-0200821-T. 12

THE COURT: So thats what we could call the 13

voyeurism file. And Attorney Baird, its my 14

understanding that you have asked, or adopted prior 15

counsels request, that there be a Fernando A. 16

Hearing concerning the continued need for that 17

protective order that was entered in that voyeurism 18

file? 19

ATTY. BAIRD: Right. The voyeurism file is from 20

May of 2013 and the protective order issued on 21

September 4th, 2014. 22

THE COURT: Correct. Are we in agreement on 23

that? The protective order was entered, by this 24

court, on 9-4 of this year, which was, I believe, the 25

first date on which Mr. Taupier had appeared here 26

after he had been arrested in what is, we could call 27

2

the threatening file, and after the, a number of guns 1

had been seized in the firearm, pursuant to the 2

firearm risk warrant, 9-4 was your clients first 3

date here after appearances in Hartford? 4

ATTY. BAIRD: Yes. 5

THE COURT: Okay. All right. And Ms. Hans, 6

you agree thats sort of where we stand? Because 7

what I did is I put together a chronology, and I 8

wanted to make sure that I understood it correctly. 9

Its my understanding that the defendant was 10

arrested on August 29th -- 11

ATTY. BAIRD: Yes. 12

THE COURT: -- which was a Friday, for 13

threatening -- 14

ATTY. BAIRD: Yes. 15

THE COURT: -- in an incident -- and correct me, 16

Attorney Baird, stop me if Im wrong on this -- 17

ATTY. BAIRD: I have it -- 18

THE COURT: -- but he was arrested on the 19

29th -- 20

ATTY. BAIRD: -- right here. 21

THE COURT: -- for threatening. On that same 22

date -- he was arrested by warrant, incidentally, for 23

threatening. On that same date police had sought and 24

had obtained what is commonly referred to as a 25

firearms risk warrant that was executed at the 26

defendants address at 6 Douglas Drive, Cromwell. 27

3

I believe he may have, simultaneously, been arrested, 1

pursuant to the arrest warrant, for threatening. 2

The defendant then, on that warrant of arrest, 3

was held, perhaps for a day or so, on a cash only 4

bond. I dont know, but he apparently was able to 5

post that bond in fairly quick order. 6

ATTY. BAIRD: The same day. 7

THE COURT: The same day. All right, thank you. 8

And the firearms risk warrant was executed by 9

the police and certain firearms and ammunition were 10

seized, that was Friday, the 29th, the 30th and the 11

31st were the weekend, that Monday was Labor Day. 12

So on the 2nd the defendant, I believe, made his 13

first court appearance in Hartford in connection with 14

the threatening case. 15

ATTY. BAIRD: And just to clarify, on the 16

uniform arrest report he was originally told by 17

Trooper Dejesus (phonetically) that he needed to 18

appear on September 12th. So the date was moved up. 19

THE COURT: Okay. All right. But he did appear 20

on the 2nd -- 21

ATTY. BAIRD: He did. 22

THE COURT: -- which would be the Tuesday. 23

ATTY. BAIRD: And the two conditions on the 24

arrest warrant, signed by Judge Mullarkey, were 25

35,000 cash bond and mental health. 26

THE COURT: Okay. Thank you. 27

4

On 9-2 the defendant appeared before Judge 1

Alexander -- 2

ATTY. BAIRD: Yes. 3

THE COURT: -- in Hartford. And Judge Alexander 4

issued, at that time, additional -- well, first she 5

raised the defendants bond by an additional 6

$40,000.00 cash and set forth a number of additional 7

conditions on the defendants bond, I believe -- 8

ATTY. BAIRD: Yes. 9

THE COURT: -- which of record appear. One of 10

which ordered the defendant to possess no weapons. 11

ATTY. BAIRD: Right. And her reasoning for 12

those additional conditions of bond, and increased 13

bond, were a violation of a family civil court order. 14

THE COURT: All right. And I guess we maybe 15

then, given that youve brought that up, let me then 16

kind of cover that aspect of the case as well, which 17

Attorney Baird, I think, properly brings up. 18

It is the Courts understanding, based on its 19

review and judicial notice that its taken of another 20

file in which there is a dissolution action pending, 21

that back on March 6th of 2013 the family court that 22

was then participating in the dissolution of marriage 23

action entered an order that, I believe, adopted the 24

parties agreement. And that order required the 25

defendant to surrender any and all guns that he 26

possessed to the custody of a named individual, 27

5

furthermore, prohibited the defendant from retrieving 1

those guns from that identified individual and 2

prohibited the defendant from obtaining any new guns 3

during the pendency of the dissolution action or 4

until further order of the court. Am I correct? 5

ATTY. BAIRD: Youre correct that that was an 6

agreement. It was not under a restraining order, 7

there was no restraining order. 8

THE COURT: Yeah. But that agreement then 9

became adopted by a court order entered by the family 10

court. Am I correct in my understanding? 11

ATTY. BAIRD: Yes. A family court order subject 12

to a motion for contempt if not followed, correct. 13

THE COURT: All right. So -- now jumping 14

forward again to September 2nd of 14, the defendant 15

made his first court appearance on the threatening 16

charge before Judge Alexander. And Her Honor then, 17

in addition to raising the defendants bond, imposed 18

a possess no weapons condition. Counsel is 19

representing that Judge Alexanders decision was 20

based on the fact that she viewed the defendant to be 21

in noncompliance with the family court order from 22

March 6th, 2013. 23

The defendant, at that point, on 9-2, had a few 24

days earlier, I believe, about 12 or 13 guns taken 25

from his home -- 26

ATTY. HANS: Thats correct, Your Honor. 27

6

THE COURT: -- and it was Judge Alexanders 1

opinion, at that point, that the defendants 2

continued possession of those guns would have been in 3

violation of the family court order entered back in 4

March of 13. 5

The defendants increased bond, as set by Judge 6

Alexander, was then posted by the defendant -- 7

ATTY. BAIRD: The next day. 8

THE COURT: -- on 9-3, I guess. 9

ATTY. BAIRD: Yes. 10

THE COURT: And then the defendant had been 11

ordered to appear here on 9-4, and he appeared, 12

having already posted bond, before this court on 9-4. 13

ATTY. BAIRD: Yes. 14

THE COURT: Okay. On 9-4 the State moved for me 15

to set -- or issue an order of protection, a 16

protective order in the -- 17

ATTY. HANS: Voyeurism case. 18

THE COURT: -- the voyeurism case. 19

ATTY. HANS: Thats correct, Your Honor. 20

THE COURT: And either on that day when the 21

court issued the order, or sometime shortly 22

thereafter, prior counsel, I believe Mr. Donovan, who 23

had been counsel of record in the voyeurism case 24

until recently, had put the State on notice that the 25

defense wished to challenge the continued necessity 26

for the protective order under the case of State v. 27

7

Fernando A. at 294 Conn. 1, correct? 1

ATTY. HANS: Yes, Your Honor, Im just 2

addressing that issue. I just would point out that 3

State v. Fernando A., the case that you just cited, 4

said that a request for a Fernando Hearing must be 5

made at the outset when the request for a protective 6

order was made. 7

That request was weighed by -- well not weighed, 8

but Mr. Jelly posed, Jeff Jelly, former counsel, 9

posed no opposition, whatsoever, on the 9-4 request 10

of a protective order. So now we have -- 11

THE COURT: Oh, was Mr. Jelly here on 9-4 or was 12

it Mr. Donovan who was here on 9-4? 13

ATTY. HANS: Well Jeff Jelly is the -- my 14

distinct recollection is that counsel, who indicated 15

that he took no position on the protective order at 16

that time, procedurally, he should have requested his 17

Fernando Hearing under the case law 46b-38c. 18

And so I think, at this point, you know, the 19

ship has sailed. If they were going to contest the 20

protective order, they should have at least said, 21

hey, were contesting this protective order lets 22

hold a Fernando Hearing and that wasnt done back on 23

9-4. 24

THE COURT: All right. 25

ATTY. HANS: The latest motion by Counsel Baird 26

is dated September 15th, 2014. 27

8

THE COURT: Let me correct something that I said 1

concerning what was, or who was counsel of record on 2

9-4, the date the protective order issued. On 9-4 I 3

think that Attorney Hans is right, and Im directing 4

this to you, Attorney Baird, if I could, I believe at 5

that time on 9-4 Mr. Taupier had two attorneys of 6

record in the voyeurism case. 7

And I believe counsel for the State is correct 8

that it was not only Attorney John Donovan that 9

represented Mr. Taupier at the time, but also 10

Attorney Jeff Jelly had filed, in addition to Mr. 11

Donovan. So that on 9-4, in fact, Mr. Taupier had 12

two attorneys of record on the voyeurism case. 13

Now, I think in my comments a moment ago I said 14

that on 9-4 Mr. Donovan was here with his client. 15

But as I search my memory I dont recall whether it 16

was Attorney Donovan or Attorney Jelly, it may have 17

been Attorney Jelly, because I have some 18

recollection, I dont recall exactly who was here 19

that day but counsel, Mr. Taupier was represented by 20

counsel that day on 9-4. And I have not seen a 21

transcript of the 9-4 hearing, but I do not recall 22

that on that date that the protective order issued 23

that Mr. Taupiers attorney, or attorneys, did 24

request, on that date, that a Fernando A. Hearing be 25

scheduled. 26

And Ill ask for your input on this because in 27

9

reviewing State v. Fernando A. the holding of that 1

case, and its -- the holding appears two or three 2

times, but Im looking at the one at 294 Conn. at 3

page 25 the court says that after a criminal 4

protective order has been issued at arraignment a 5

defendant is entitled upon his request made at that 6

time to a more extensive hearing to be held within a 7

reasonable period. 8

And that same holding appears at page 30 where 9

the Supreme Court held the trial court is required 10

to hold, at the defendants request made at 11

arraignment, a subsequent hearing within a reasonable 12

period of time wherein the State will be required to 13

prove the continued necessity of the order. 14

Now, admittedly, the defendants appearance here 15

on 9-4 would not have been his arraignment on the 16

voyeurism charge, because that case had been already 17

pending for a considerable time, but it was the 18

appearance at which the protective order issued. 19

So, to the extent that the spirit of Fernando A. 20

is that the request for a Fernando A. Hearing must be 21

made at the time, at the time that the protective 22

order is issued. 23

How, Attorney Baird, do you respond to Ms. Hans 24

claim that not having indicated on 9-4 a desire to 25

have a Fernando A. Hearing that he cannot now seek 26

one? 27

10

ATTY. BAIRD: My understanding of the case is 1

that Attorney Donovan did request such a hearing, in 2

very short form, on September 4th. And maybe the 3

clerks file would represent when it was requested 4

or? 5

THE COURT: Well, there is a written motion for 6

a Fernando Hearing filed by Attorney Donovan on 9-15. 7

And again, have the parties looked at the transcript 8

of 9-4? 9

ATTY. BAIRD: I have, and I dont have it in 10

this notebook right here, but my memory is that 11

theres a very short little clip in the middle of it 12

where he just says Fernando Hearing and the Court 13

says okay. 14

THE COURT: Well, I mean is that -- 15

ATTY. BAIRD: And then it follows up from there. 16

THE COURT: -- something that you can access? 17

ATTY. BAIRD: I can access it, yes. 18

THE COURT: Now or is it available to you? 19

ATTY. BAIRD: Its available, yes. I would have 20

to look in the box under there because I dont have 21

the transcript -- 22

Preliminarily, Your Honor, can I also argue, at 23

this point, that the voyeurism case involves 24

voyeurism and distribution of voyeuristic material 25

arising from a May, 2013 arrest. And then in 26

September of 2014 a protective order enters. And a 27

11

protective order applicable to a family violence case 1

and that the voyeurism case was not a family violence 2

case. I dont know if its marked in the file as a 3

family violence case, but if I could check with the 4

clerk but it just, it seemed inapplicable -- so it 5

was void from the start, one might say, and never 6

existed because it was -- 7

THE COURT: Well, youll certainly be able -- I 8

mean, youll be able to raise that claim. Whether or 9

not thats to be raised as a Fernando claim or as 10

something, I guess, something else. 11

ATTY. HANS: Your Honor, I believe that would be 12

a motion to vacate the Courts order. 13

But it is the States position that under 46b-14

38a(1) family violence means any incident resulting 15

in physical harm, bodily harm or assault or an act of 16

threatened violence that constitutes fear of imminent 17

physical harm. It doesnt say that we have to have 18

underlying charges of assault or threatening for this 19

particular victim. 20

The Court made findings, based upon the 21

armaments that the defendant had in his possession 22

and other things, and based upon family violences 23

recommendation that a protective order should ensue 24

for the wife and her two young children. 25

So, I dont think that theres any statutory 26

prohibition of issuing a protective order when the 27

12

circumstances, obviously, warrant it just because 1

there is not a violent case charged. The statute 2

doesnt say that, Your Honor. 3

ATTY. BAIRD: Well -- 4

THE COURT: Let me just -- Ill hear from you in 5

just a second. What was the statute that you had 6

said? 7

ATTY. HANS: Im looking at the definition of 8

family violence. 9

THE COURT: Yeah. 10

ATTY. HANS: 46b-38a(1). 11

THE COURT: All right. So, youre claiming that 12

the Court didnt, given the nature of the voyeurism 13

charge, that theres no basis for a court to issue a 14

protective order period. 15

ATTY. BAIRD: Right. And I think what the 16

prosecutor just argued supports that theory because 17

everything that shes arguing happened in the 2014 18

case, not the 2013 case. 19

In the 2014 case the threatening and harassment, 20

the family services report even says this is a threat 21

against the judge. 22

THE COURT: Right. 23

ATTY. BAIRD: Its not a family violence case 24

and so protective order couldnt issue in the 2014 25

case. So, to circumvent that, she went back to the 26

2013 case. 27

13

But the problem is thats not a family violence 1

case either. And so we have two cases that are not 2

family violence and a protective order issued. 3

ATTY. HANS: And Your Honor I would just respond 4

to that, under 46b-38c it says there shall be family 5

violence response and intervention units in the 6

Connecticut Judicial system to respond to cases 7

involving family violence. It doesnt say regarding 8

charges involving family violence. 9

Obviously gray circumstances arose during the 10

voyeurism case which may, which compelled the State 11

to protect the victim in the voyeurism case, and her 12

two children, to seek a full protective order. It 13

doesnt say charges, Your Honor. 14

And I would also submit to you, in the 15

alternative, that the threatening in the first degree 16

case involving divorce, the divorce -- the judge who 17

presided over the divorce proceedings wasnt a 18

violent -- well, was a threaten violence case that 19

also had ramifications for the victim because all the 20

armaments were found in his house, there were 21

statements made during these acrimonious divorce 22

proceedings. 23

Certainly the law is not so narrow as to not 24

allow a victim, and her two children, to have the 25

courts protection when someone retrieves weapons in 26

violation, direct violation of the family court 27

14

order. 1

THE COURT: Thats the States position that the 2

court could have issued a protective order in the 3

threatening case? 4

ATTY. HANS: Well, Your Honor, because -- I mean 5

if shes claimed to the charges I know that the 6

threatening involved the judge who presided over the 7

divorce proceedings, thats just a charge that 8

emanated because the divorce proceedings have been so 9

acrimonious and volatile. 10

Certainly I dont think I could have issued an 11

order as to Ms. -- well, actually I think, I think 12

that the clerk initially put them under both cases, 13

Your Honor, because this is a divorce proceeding 14

involving Ms. Taupier. So, in the commencement of 15

the divorce proceedings all of the armament issues 16

arose, the threats and the volatile situation quickly 17

came to head. So, I dont see why she would be 18

prohibited, I dont see anything in the statute that 19

would prohibit me from doing it. 20

ATTY. BAIRD: I just want to clarify, for the 21

record, there are words being bandied about, such as 22

armaments, and I know in certain motions arsenal, 23 theres no allegation here that there was an armament 24

or theres nothing of the sort. And I just want to 25

clarify the record for that and not just ramp this up 26

into something its not. 27

15

THE COURT: What was seized is of record. 1

ATTY. BAIRD: Exactly. For guns. 2

THE COURT: And 42 high caliber ammunitions that 3

had to be registered with the State of Connecticut 4

for assault rifles. 5

ATTY. BAIRD: I believe theyre called -- 6

THE COURT: Okay -- 7

ATTY. BAIRD: -- high capacity -- 8

THE COURT: -- counsel please -- 9

ATTY. BAIRD: -- magazines. 10

ATTY. HANS: Yeah. 11

THE COURT: Whats important is what the record 12

shows. So, items were seized from the defendant, it 13

includes guns, ammunition and so forth, Im aware of 14

what was seized so Im not going to make rulings 15

based on who classifies it or characterizes it as one 16

thing or another. Ill make my decision based on 17

what was seized. 18

All right. So your point is that, the defenses 19

point is that the court did not have the authority to 20

issue a protective order. 21

ATTY. BAIRD: Right. And in tandem with that is 22

the motion to dismiss that we just filed regarding 23

the voyeurism and the distribution of voyeurism 24

relying on a case from April of this year finding 25

that plain view is an element of the statute. 26

THE COURT: Well, but thats -- to me thats 27

16

neither here nor there at this point. There is a 1

pending case. So, if there is a pending case, if it 2

is a case that would support a protective order, the 3

issue now is whether the protective order is going to 4

remain in effect. 5

ATTY. BAIRD: I mean I did review the statute 6

that the prosecution has referenced. The voyeurism 7

charge does not meet the elements of that statute 8

because if it had then it would have been referred to 9

family violence at the arraignment or it would have 10

been treated as a family violence case, it wasnt. 11

The protective order that issued on 9-4 of 2014 12

has one docket number on it, 2013; it does not have 13

the threatening case docket number on it. So, it 14

comes out of that case, it wasnt a family violence 15

case, so a protective order couldnt have issued in 16

that case. 17

THE COURT: So, it seems to me that the first 18

issue is whether or not the court has the authority 19

to issue a protective order in, I guess, either of 20

these pending cases. 21

ATTY. HANS: Well, Your Honor, thats a 22

different animal, I mean, were here on a Fernando 23

Hearing that was not requested. So that would be 24

akin to a motion to vacate the courts order with an 25

accompanying memorandum of law, I mean thats -- 26

THE COURT: Well, thats true but -- well does 27

17

the State want to go ahead then with the, its your 1

burden so do you want to begin now, the Fernando 2

Hearing, even if I end up determining that either 3

(a) I didnt have the authority to issue a protective 4

order in the first instance, or (b) that the 5

defendant has waived his right to make a Fernando 6

Hearing. I mean, I see no reason to go ahead with 7

the evidence of the, relevant to the Fernando issues, 8

if there are procedural bars either to the issuance 9

of the order in the first instance, or the challenge 10

to it after the fact. 11

ATTY. HANS: And Im in complete agreement in 12

the interest of judicial economy that those are 13

threshold issues. 14

THE COURT: Right. 15

ATTY. HANS: What I do want to alert the Court 16

to that there are three motions to quash that have 17

been filed. 18

THE COURT: Im going to turn my attention to 19

that. It seems to me that these procedural matters 20

have to be adjudicated first, which would involve a 21

claim which -- Attorney Baird, have you previously 22

argued that the Court was without authority to grant 23

the protective order? 24

ATTY. BAIRD: I first appeared in this court on 25

October 9th -- 26

THE COURT: Right. 27

18

ATTY. BAIRD: -- and I filed my appearance a 1

couple days previous. At the same time that these 2

have been going on I was called into trial in 3

Waterbury. 4

THE COURT: No, Im not challenging you -- 5

ATTY. BAIRD: So -- 6

THE COURT: Its the first time -- 7

ATTY. BAIRD: Right. 8

THE COURT: -- Ive been reviewing whats been 9

submitted but things are coming in fast and furious 10

so I cant say Ive read every single filing. 11

ATTY. BAIRD: It is the first time I -- 12

THE COURT: So this is a new claim which is one 13

that Id like to hear from the parties on and it 14

seems to me to be a threshold issue. 15

ATTY. HANS: I agree. 16

THE COURT: And I see no reason to conduct an 17

evidentiary hearing if there is a statutory 18

procedural issue that has to be addressed first. 19

But I will say that I would look at this issue 20

now as whether or not I had the authority to issue a 21

protective order in either of the criminal cases. 22

So, Im going to need the parties to examine that and 23

Im going to have to do it as well. 24

If I had the authority to grant an order in 25

either of the docket numbers, a protective order, 26

then the next question, it seems to me, is whether or 27

19

not the challenge to it and the election -- or the 1

effort to trigger a Fernando Hearing was timely made 2

and whether or not the language in the Fernando A. 3

holding is mandatory. In other words that the 4

request for Fernando A. Hearing has to be made at the 5

time of the issuance of the order. So thats the 6

second issue. 7

You say it may even be in the transcript. So, 8

youll have a chance to -- 9

ATTY. BAIRD: It is in a transcript. I just 10

have to find the date. 11

THE COURT: Well, you know, it will be in a 12

transcript because I remember Attorney Donovan saying 13

one day -- 14

ATTY. BAIRD: Yes. 15

THE COURT: -- in court I want a Fernando A. 16

Hearing. Now, again, I havent read the transcript 17

of 9-4, is it possible someone said something then? 18

I recall it happening later at a subsequent hearing 19

before, Attorney Baird, you were involved. My 20

recollection is that it didnt come up on the 4th, 21

but I could be mistaken, and maybe theres a passing 22

reference to it that has slipped my mind. So, but 23

that seems to be issue number two. Its only if 24

those two issues are resolved in a certain way that 25

we get to the actual Fernando A. Hearing itself. 26

ATTY. BAIRD: And as a caveat I would argue that 27

20

if it turns out the Fernando A. Hearing was not 1

requested timely that -- well, let me not get 2

ahead -- I would argue that because this is in the 3

2014 case and that the family protective order, the 4

protective order doesnt apply to the 2013 case. If 5

an order issued in this case he could, again, make 6

that timely election. 7

THE COURT: So, if the order goes into the other 8

file then you would want that done on the record so 9

that you could timely raise the Fernando claim. 10

ATTY. BAIRD: Right. 11

THE COURT: I understand, okay. 12

ATTY. HANS: But, Your Honor, I would just point 13

out to the Court that if there had been a request for 14

a Fernando Hearing, as pursuant to the case, one 15

would have been scheduled on 9-4 because its a due 16

process claim. And I think the Court immediately -- 17

if a request is made the Court Ive never known not 18

to honor it. So, I just -- 19

THE COURT: Well, Im not -- 20

ATTY. HANS: -- dispute that a -- 21

THE COURT: -- Ive already -- 22

ATTY. HANS: -- dispute that a request was made 23

on 9-4. 24

THE COURT: -- said its my recollection that it 25

wasnt made at that time. But, am I correct in my 26

understanding that on that date the order entered 27

21

only in the voyeurism case? 1

I know you made a comment that initially it was 2

going to be in both but Im asking the question in 3

point of fact it issued only in the voyeurism case, 4

as I understand it? Is there any protective order 5

that appears in the threatening case? 6

The clerk is indicating, I guess, the original 7

protective order that was prepared, I guess by 8

family, didnt bear one docket number or the other. 9

One was typed in, the second one was written on. So 10

it may be unclear unless the 9-4 transcript says it. 11

So, you have a copy of the 9-4 transcript? Im not 12

suggesting Im going to read it now, but. 13

ATTY. BAIRD: I do. And I have a copy of an 14

order of protection here with a docket number on it, 15

but. 16

THE COURT: Is it a single number or is there a 17

handwritten number beneath it or just one docket 18

number? 19

ATTY. BAIRD: Its just one docket number. 20

ATTY. HANS: And I have the same -- 21

THE COURT: Thats the voyeurism one? 22

ATTY. BAIRD: Yes. 23

ATTY. HANS: CR-13. 24

THE COURT: Well, it appears as though the clerk 25

maybe -- does the actual order appear in only one of 26

the files or does it appear in both? All right. The 27

22

order, apparently, appears in both. But it would 1

seem to me, Im going to have to look at what was 2

said on 9-4. 3

ATTY. BAIRD: I can get that. 4

THE COURT: Thank you. Then the thing that I 5

think needs to be covered today is, in fairness to 6

the many people that have been subpoenaed here, are 7

the motions to quash. Because in the first incident 8

Fernando A. allows the Court to determine the manner 9

in which this hearing is going to be conducted. And 10

hearsay evidence, at least reliable hearsay evidence, 11

would be permitted; the Rules of Evidence need not be 12

strictly applied. And actually insofar as the 13

defendants case is concerned the court, at page 29 14

says, the court suggests that the defendant should 15

initially be required to make a proffer of relevant 16

evidence. And then upon that proffer being made, and 17

I suspect the proffer would be in an effort to show 18

that there was no continued necessity of the 19

protective order, but I see that as a proffer by 20

counsel which the Court could hear without evidence 21

initially but just on the proffer itself. 22

If the Court would hear that proffer and say 23

even if all that was supported by reliable evidence 24

it would not, in the Courts opinion, lead the Court 25

to vacate the protective order, then there wouldnt 26

be the need for that evidence to be formally 27

23

presented. I would essentially accept your proffer 1

as true and provable to determine whether it would 2

make a difference in my mind. 3

So, it seems to me that we should, before 4

concluding today, address the three or four motions 5

to quash. I know that Attorney Peck is here, having 6

filed a motion to quash on behalf of an attorney that 7

Ms. Baird subpoenaed. I understand that Mr. Palmer 8

is here, having filed a motion to quash, also filed 9

on behalf of an attorney that you subpoenaed, Ms. 10

Baird. I believe theres also representatives here 11

who I was, I didnt speak to but who identified 12

themselves from the Judicial Branch perhaps? 13

ATTY. HANS: Legal Aid, Ms. Shay from Legal Aid. 14

THE COURT: And Legal Aid is here. I only see 15

that now. I didnt meet the legal aid attorney, but 16

apparently there is -- are you Attorney Shay? 17

ATTY. SHAY: I am. 18

THE COURT: All right. Attorney Giovanna Shay 19

from Legal Aid is here to quash the subpoena of -- 20

ATTY. HANS: It would be Linda Allard. 21

THE COURT: Attorney Allard. And I guess that 22

subpoena perhaps because it was duces tecum also 23

directed certain demands on Ms. Allards employer, 24

which is Legal Aid Greater Hartford. 25

And are there attorneys here from the Branch? 26

ATTY. SHEY: The Judicial Branch attorney. 27

24

ATTY. HANS: Yes, Adam -- 1

THE COURT: Mauriello I think. 2

ATTY. HANS: Yes, sir. Mauriello has also, has 3

brought a motion to quash. There are four. 4

THE COURT: Hes moving to quash I think a 5

subpoena that was directed to a family relations 6

officer, that was all that I heard. 7

ATTY. BAIRD: Yes. Keeper of records, family 8

services. And I believe it was a Andrew Spurrier 9

that may have responded to that. 10

THE COURT: All right. So, I dont want to make 11

these parties appear again if it is for the sole 12

purpose of me announcing that your motion -- or their 13

motions to quash are granted. 14

So, Ill invite suggestions on how we should 15

proceed. I mean, I could ask you to make a proffer 16

as to why this would all be relevant, if we get to 17

the Fernando Hearing. Because we may never get to 18

the Fernando Hearing I have, some of me thinks it 19

might make more sense to excuse everyone, not require 20

them to come back at all until I rule on the 21

procedural matters. They would not be required to 22

disclose any records that have been subpoenaed in 23

addition to, I know, seeking the testimony of 24

witnesses, none of these individuals would be 25

required to disclose any information, will resolve 26

the procedural threshold issues if in fact we get to 27

25

the point where there is going to be a Fernando A. 1

Hearing then well have it. 2

But at that point Ill require you, Attorney 3

Baird, to make a proffer as to the relevance and if 4

Im satisfied that there could be relevant evidence 5

then Ill hear from the lawyers on their respective 6

motions to quash. 7

But, because if I find that even if everything 8

you say is true it doesnt matter then that would end 9

it, wouldnt it? Mr. Peck, I dont know if you -- 10

ATTY. PECK: I did, Your Honor, I wanted to 11

address that issue, that housekeeping issue. 12

THE COURT: All right. So, let me -- and if any 13

of the other attorneys here on the motions to quash 14

want to be heard Ill hear from you now. And Ill 15

let Attorney Baird think of what Im proposing, hows 16

that? 17

ATTY. PECK: May it please the Court. 18

THE COURT: Yes. 19

ATTY. PECK: Attorney Michael Ruben Peck for 20

Attorney Ficarra who is in the courtroom, Your Honor. 21

We havent, the other quash attorneys have not 22

met. I think it would be an advantage if the quash 23

lawyers could caucus and decide on how to respond to 24

your suggestion. As it pertains to my thoughts on 25

the subject, a written proffer, Your Honor, in short 26

order, notwithstanding where the procedural aspects 27

26

go, would help us, at least help me, you know, frame 1

the kind of response that I want on my quash. I just 2

dont know where shes going with her proffer. 3

THE COURT: All right. Then why dont we do 4

this, the lawyers that are here in support of motions 5

to quash, does anybody have objection to getting 6

together for a minute or two and seeing if you share 7

common interest, it can then be represented to me. 8

Attorney Baird you can, kind of, see how you see this 9

going. 10

ATTY. BAIRD: Your Honor, also I faxed in a 11

request this morning, Im not sure if the Court has 12

gotten it. But it was a request for an immediate 13

jury trial to avoid all this as well. So I just want 14

to throw that into the mix. 15

THE COURT: Well, I did get a copy of it, at 16

some point today -- 17

ATTY. BAIRD: Okay. 18

THE COURT: -- but honestly I havent read it. 19

ATTY. BAIRD: But thats pretty much its 20

essence. 21

THE COURT: Well, Ill read through it. But I 22

dont know if Im in a position to rule on that right 23

now. 24

So why dont we take 15 minutes. The lawyers 25

that are here representing witnesses, who are the 26

subject of subpoenas, or agencies, can discuss their 27

27

shared interest, if any exists. Attorney Baird, you 1

can take a look maybe for that 9-4 transcript -- 2

ATTY. BAIRD: Yes. 3

THE COURT: -- and see if there is a -- because 4

if thats taken care of, if there is a mention of it 5

on 9-4 that does eliminate that concern. And then it 6

also will give Attorney Hans and Attorney Baird an 7

opportunity to see how they feel we should proceed. 8

My immediate concern now is not to inconvenience 9

those, the attorneys and the witnesses who have been 10

subject to subpoena, any more than I need to. But, 11

my initial thought is that its unnecessary, at this 12

point, to rule on motions to quash because we havent 13

yet determined whether a Fernando A. Hearing is going 14

to be heard. 15

And maybe I should, before I let you all caucus, 16

are you suggesting that in lieu of the Fernando A. 17

Hearing that you want a trial? 18

ATTY. BAIRD: The first case has been pending 19

for 18 months, hes locked up in his house, he cannot 20

do anything. He needs a trial to determine his 21

future. 22

THE COURT: Well, my concern about that is if 23

the orders enter in the other file, in the 24

threatening file, arent you still going to need a 25

Fernando A.? 26

ATTY. BAIRD: Not if we have a trial. The trial 27

28

would do away with all this. 1

THE COURT: A trial on which file, both? 2

ATTY. BAIRD: Well, I mean, our position is the 3

first case should be dismissed. 4

THE COURT: Well, the first case meaning the 5

voyeurism case? 6

ATTY. BAIRD: Yes. 7

THE COURT: And arent you making -- isnt there 8

a claim to dismiss the second one too? 9

ATTY. BAIRD: I have not yet had a chance to 10

file that, but Im working on that. 11

THE COURT: Well, I thought, did Mr. Shonhorn 12

(phonetically) file that? 13

ATTY. HANS: Yes, sir. 14

THE COURT: And I thought you had filed a motion 15

that said you adopted all the other motions. 16

ATTY. BAIRD: Okay. 17

THE COURT: So, I mean, I dont know whether, I 18

would suspect there is going to still be considerable 19

pretrial pleadings, responses, briefing, arguments 20

and so forth before the actual trials, assuming that 21

the motions to dismiss are denied. I mean, I cant 22

say that those are going to be, theyre going to be 23

trials in the immediate future. If you move to 24

dismiss the voyeurism case, whats the basis of the 25

motion to dismiss the voyeurism case? 26

ATTY. BAIRD: Because, I have to look at the 27

29

motion because you can get it backwards very easily. 1

But basically theres a case out of Stamford, Norwalk 2

by Judge Wenzel called State v. John Panek. 3

THE COURT: Im familiar with it. 4

ATTY. BAIRD: And this case is just like that 5

one, exactly. 6

THE COURT: So that the -- 7

ATTY. BAIRD: So we rely on his reasoning and 8

his conclusions for this case. 9

THE COURT: And then youre not yet at a point 10

where you can say what the motion is -- what the 11

grounds are for the motion to dismiss the threatening 12

case, at least at this point. 13

ATTY. BAIRD: Its going to cite the recent 14

Supreme Court case of September 4th, 2014 State v. 15

Klijger, K-l-i-j-g-e-r, it could be the other way 16

around, but regarding true threats. 17

THE COURT: True threats. 18

ATTY. BAIRD: Yes. 19

THE COURT: All right. Well lets take 15 20

minutes and Ill see everybody back at a quarter to 21

12. 22

ATTY. HANS: Thank you, Your Honor. 23

We can stand in a brief recess. 24

(COURT RESUMED FOR STATE V. TAUPIER AT 12:04 25

P.M.) 26

THE COURT: So, why dont we address first the 27

30

motions to quash? Mr. Peck, do you want to be the 1

representative of the -- 2

ATTY. PECK: No, sir, we caucused and each of 3

us, I think, in turn wants to present a point, Your 4

Honor. 5

THE COURT: All right. Well, Mr. Peck, do you 6

want to go first or there an order agreed to among 7

the members of the caucus? 8

ATTY. PECK: Thank you, Your Honor. Well, with 9

regard to my position, Your Honor, were asking for a 10

written proffer. At some point that gives us a 11

chance to respond to the written proffer. And in 12

the, besides the timing issue of the proffer, 13

specificity as to what she wants out of my clients 14

file. I can go through the subpoena now, Your Honor, 15

but the specificity in the proffer would be an 16

advantage to us. I did not discuss this with brother 17

and sister counsel, I only have an appearance in the 18

voyeurism case. So, Ill refile an appearance in the 19

threatening case. I understood the Court -- 20

THE COURT: Well, I guess if the motion to -- if 21

the Court ends up issuing the protective order in the 22

other file I suspect that counsel is still going to 23

be seeking the same information. So, I appreciate 24

your willingness to file the appearance on behalf of 25

your client even if it gets shifted to a different 26

docket number. But you want a written proffer 27

31

specifying what it is. 1

Do I understand, you represent an attorney who 2

represents Mrs. Taupier? 3

ATTY. PECK: It may be helpful if each of us 4

establish who we are. For the record, Im Attorney 5

Michael Rubin Peck. My law partner, in the 6

courtroom, is Geraldine Ficarra. We are both counsel 7

of record to Mrs. Taupier in the divorce case. 8

THE COURT: And Attorney Baird has subpoenaed -- 9

ATTY PECK: My clients -- I mean, my law partner 10

and my client. 11

THE COURT: Your law partner, and has sought by 12

way of duces tecum, the production of certain records 13

that are within your clients file? 14

ATTY. PECK: Well, the word is certain is -- I 15

would take exception to the word certain. Certain, 16

she wants everything that we have pertaining to the 17

divorce file. 18

THE COURT: So among the issues that, I suppose, 19

concern you are privilege issues? 20

ATTY. PECK: Yes, sir. 21

THE COURT: All right. So you want a specific 22

list of whats been sought and, I guess, I would want 23

to know why these materials wouldnt be privileged 24

under the attorney/client privilege provisions. 25

ATTY. PALMER: Your Honor, and work product 26

also. 27

32

THE COURT: And work product. Okay. Do you 1

want to be heard next? 2

ATTY. SHAY: Thank you, Your Honor. 3

THE COURT: Youre welcome. 4

ATTY. SHAY: Giovanna Shay on behalf of Attorney 5

Linda Allard in Greater Hartford Legal Aid. And we 6

have not figured, at all, in the voyeurism matter in 7

the threats case certain electronic communications 8

between Mr. Taupier and a third party came to 9

Attorney Allards attention and were forwarded to the 10

state police. 11

I have entered an appearance in both cases on 12

behalf of Attorney Allard and Greater Hartford Legal 13

Aid. As of yesterday when I filed the motion to 14

quash my concern, like Attorney Pecks, relates to 15

the breadth and the generality of the subpoena. 16

I would ask, actually, that the Court quash this 17

subpoena duces tecum because it is simply too broad, 18

too general, seeking any and all information in your 19

possession regarding Edward Taupier, any and all 20

emails communications of whatever kind and nature 21

regarding Edward Taupier received by or sent by 22

yourself to any other person. So I think its 23

premature even to get into relevance. 24

I think, under the case law if it is so broad, 25

lacks specificity, it should be quashed. And that I 26

dont want to be back in the same situation at a 27

33

later date. 1

THE COURT: Mr. Peck, is the subpoena directed 2

to your client equally as broad in its language? 3

ATTY. PECK: Yes, sir. 4

ATTY. SHAY: Further, Your Honor, although our 5

attorney/client privilege and work product privilege 6

issues are different in kind from Attorney Pecks 7

because we dont represent an individual client in 8

this matter. They do exist in the case, and I raise 9

them in the motion in that this is so broad that it 10

could, in fact, infringe on communications between 11

Attorney Allard and her supervisors and GHLA, sort of 12

organizational attorney/client privilege response to 13

prior subpoenas in these matters, preparation of this 14

motion to quash, its that broad. So we also have 15

privilege issues as well. 16

THE COURT: Thank you. 17

ATTY. HANS: Your Honor, if I can interject with 18

Ms. Allards attorney, a lot of materials were 19

actually the States Attorneys work product. In 20

preparation for the risk hearing I had sent emails 21 and a list of questions I would be asking Attorney 22

Allard. So I am also seeking to quash, in joining in 23

that, because I feel that I have a legitimate work 24

product exception and interest. 25

THE COURT: Thank you. Mr. Palmer. 26

ATTY. PALMER: I think everyones pretty much 27

34

covered it, Your Honor. If she could just address 1

5-1 of the Code of Evidence, the privileges regarding 2

work product, attorney/client privilege and the over-3

broadness we would be happy. 4

THE COURT: And you represent Attorney Morano? 5

ATTY. PALMER: Yes, Your Honor, Attorney Morano 6

represents the wife as a victim of crime in this 7

case, Your Honor, as is defined by 1-1k of the 8

statutes. So he is an attorney, he was subpoenaed as 9

an attorney. 10

THE COURT: And I know -- 11

ATTY. MAURIELLO: Good afternoon, Your Honor. 12

THE COURT: Good afternoon. 13

ATTY. MAURIELLO: Adam Mauriello for the 14

Judicial Branch Legal Services Unit for the three 15

family relations counselors under subpoena. 16

Just briefly, by way of background, the 17

defendant was also a defendant in the dissolution 18

proceeding. The counselors Lauer and Rosario 19

conducted comprehensive evaluations regarding child 20

custody and access, in the course of that proceeding, 21

one of which was, is over a year old and one remains 22

pending. 23

Our position is consistent with, as stated by 24

counsel, I just wanted to make a couple of specific 25

points. Our motion to quash with regard to the 26

counselors, excuse me, Rosario and Lauer, based on 27

35

Practice Book Section 25-60 provides that the 1

information in the family relations file is 2

confidential unless the court orders otherwise. 3

In regard to the overbreadth of the subpoena, 4

the specific concern we have is if there is 5

information in there regarding third parties that may 6

be sensitive, specifically the two minor children and 7

the defendants wife, who I would like a specific 8

proffer on those items if disclosure on that is 9

sought. 10

With regard to Counsel Spurrier, who is also 11

under subpoena, I have to confess, was not aware 12

until this morning that this was going to a Fernando 13

Hearing. Having learned that Counsel Spurrier is not 14

addressing my motion to quash but I would like to 15

just address orally regarding the proffer. Its our 16

position that with respect to, to the extent this is 17

a domestic violence case, any information taken in by 18

Counsel Spurrier is not subject to subpoena at all. 19

So regardless of the proffer of the general statutes 20

46b-38c(c) we would argue that that information, 21

regardless of the proffer, is not subject to subpoena 22

and cannot be used for any other purpose. 23

Im only, right now, appearing in the voyeurism 24

file, Your Honor. I dont know if its necessary for 25

me to appear on both files, but. 26

THE COURT: I guess if this issue ends up 27

36

getting transferred -- 1

ATTY. MAURIELLO: I probably should, yes. 2

THE COURT: -- to a different docket number. 3

ATTY. MAURIELLO: Ill enter my appearance in 4

the other file as well. 5

THE COURT: Thank you. All right. Attorney -- 6

thank you to the four of you. 7

Attorney Baird, the only, what Id like to hear 8

you on now is Attorney Shays claim, which is, I 9

think, been joined by all of the other attorneys that 10

on their face these subpoenas violate the rule that 11

bars subpoenas from being overbroad. 12

So, Id like to hear you on Attorney Shays 13

claim that these subpoenas, as phrased, which raise 14

everything from work product, attorney/client, they 15

dont exclude those items. Am I correct to the 16

counsel who represents these witnesses? These 17

subpoenas are -- dont even say were not seeking 18

privileged materials. And those privileges would, I 19

guess, extend from attorney/client to work product to 20

Mr. Mauriellos claim of privilege thats statutory 21

and protects certain victim service officers. 22

So, how do you respond to the claim that really 23

what the Court should do on these motions to quash, 24

given the language of the subpoenas, grant the 25

motions to quash and then you would be free to draft 26

what would be an appropriate motion, which would 27

37

specify the information thats been sought so that, 1

first of all, that it would exclude anything thats 2

privileged, unless you have a claim that there should 3

be a breach of these multiple privileges. And I just 4

want to hear your response to that. 5

ATTY. BAIRD: Well, in requesting the 6

information that we requested, Your Honor, of course 7

counsel, if they believe information is privileged, 8

theyre not going to produce it. Maybe they want to, 9

though. Its their clients privilege, maybe their 10

client would waive the privilege, how would I know 11

that. And so its up to them to raise the privilege 12

argument, which they have. 13

But with regard to Ms. Shay I was not under the 14

impression, I did not know that there were voluminous 15

emails involving Mr. Taupier that needed to be 16

classified into different categories. But if there 17

are I could certainly do that. 18

THE COURT: Well, I mean, I think the, kind of 19

the tenor of the claim here is youve essentially 20

filed four subpoenas, three of which are directed to 21

attorneys, of record, in pending cases saying give me 22

everything youve got. And that, at least at first 23

flush strikes me as sort of the poster child for an 24

over -- an overbroad subpoena. I mean, I dont know 25

how it could be any broader than to say give me every 26

piece of paper youve got that pertains to either 27

38

your client -- I dont know if it pertains to your 1

client as well as Mrs. Taupier. So, I just dont 2

know how that could not be deemed overbroad as 3

worded. 4

ATTY. BAIRD: So, in issuing the subpoenas to 5

the attorneys I have to tell them that if the 6

material is privileged dont turn it over. 7

THE COURT: Well, no, I use that as an example 8

and perhaps a poor one. I guess protected materials 9

can be identified by the subpoenaed party or their 10

counsel. 11

But I think generally speaking they would need 12

to be more than just a wholesale demand for 13

everything someone has in their file. 14

I mean am I correct in saying that these 15

subpoenas essentially say give me everything youve 16

got? 17

ATTY. BAIRD: Unless there is a privilege or 18

claim not to. 19

THE COURT: No, but I dont know. So I say that 20

maybe that was a poor example because maybe in 21

thinking about it you may be right that if there is 22

privilege materials then maybe it becomes the burden 23

of the subpoena party to raise that. 24

But, Im just saying that looking at what youve 25

asked for and putting aside the privilege question, 26

it seems to me that the definition of an overbroad 27

39

subpoena is one that is unrestricted, unlimited and I 1

guess because Ive said it before, Ill say it again, 2

it asks for everything youve got. And I think isnt 3

that the definition of a, an overbroad subpoena? 4

ATTY. SHAY: Your Honor, may -- 5

THE COURT: Yes. 6

ATTY. SHAY: I agree. Aside from the privilege 7

issues there is an issue about lack of specificity in 8

the subpoenas on their face. And the Supreme Court 9

has said in State against Montgomery and Three Rivers 10

that that is a valid basis for a motion to quash. 11

That there isnt really even a need to get into the 12

relevance of specific pieces of information or 13

privilege issues regarding specific communications if 14

the subpoena is really sort of a fishing expedition 15

for unlimited discovery. 16

THE COURT: I mean, Attorney Baird, would your 17

request then demand that you would be -- you are now 18

seeking the retainer agreements? 19

ATTY. BAIRD: That would -- 20

THE COURT: Well, no, Im just asking you, would 21

the wording of the subpoena cover the -- would it 22

cover a retaining -- the retainer agreement, would it 23

cover an email that said come to my office next week? 24

Would it cover every single piece of paper? I think 25

that Attorney Shay makes a fair claim that putting 26

aside the question of anything else, and perhaps even 27

40

deferring to you on your claim that the recipient of 1

the subpoena initially bears the burden of raising 2

the privilege question, there still needs to be an 3

effort by the party issuing this subpoena to specify 4

what it is that he or she seeks by the subpoena. 5

Otherwise it is subject to a claim that its a 6

fishing expedition. 7

You havent said, in your subpoena, that you 8

want records that they may have in their file 9

pertaining to Mr. Taupier that deal with the question 10

of such and such. Youve just said give me 11

everything that might pertain to Mr. Taupier and I 12

dont know whether its Mrs. Taupier as well, but 13

certainly Mr. Palmers client is the attorney for 14

Mrs. Taupier in the criminal case. Mr. Peck is here 15

on behalf of the attorney of Mrs. Taupier. 16

So, I am inclined to agree with Ms. Shay, in 17

something that, I think, is joined by her brother and 18

sister counsel on that side of the table, that this 19

is overbroad, regardless of what else may be later 20

raised as a grounds not to disclose what is more 21

narrowly sought. But thats actually now the way I 22

see it. So, while it had initially been my thought 23

that we could, sort of, table this until we see if we 24

ever get to the hearing. 25

I think that parties who have been subpoenaed 26

and who have properly filed motions are entitled, 27

41

perhaps, to a ruling on it and shouldnt be later 1

required, if we ever get to this point, to renew this 2

claim concerning the overbreadth of the subpoenas. 3

ATTY. BAIRD: Well, Ive learned a lot today, 4

Your Honor, because in issuing these subpoenas to 5

people who obviously have privileged information, the 6

attorney/client privilege, assuming there wouldnt be 7

that much more than the privileged information, I did 8

not know the request would be interpreted so over-9

broadly. But it appears that there may be a lot of 10

information thats not privileged if in fact the 11

requests were so overbroad that I will frame the -- 12

THE COURT: Well, yeah, I just cant imagine 13

what -- 14

ATTY. BAIRD: -- next subpoenas better. 15

THE COURT: I just cant imagine what these 16

people, if they were complying to the subpoena, could 17

not turn over from their file. I think it would be 18

foolhardy for the attorneys representing these 19

clients, subject to a subpoena, to say that anything 20

in the file wouldnt fall within the purview of your 21

requests. So I think thats the definition of 22

overbroad. And in light of that and assuming that 23

all the parties have moved to quash on, among other 24

grounds, on the grounds of overbreadth, that Im 25

going to grant the motions to quash. 26

ATTY. BAIRD: Is that the motions to quash the 27

42

testimony or -- 1

THE COURT: Well, its the motions to quash the 2

subpoenas that were issued. 3

As far as the motion might affect -- it doesnt 4

preclude new subpoenas from being issued. 5

ATTY. BAIRD: No, I know that, but -- 6

THE COURT: And it doesnt say that these 7

witnesses are forever -- that the witnesses whose 8

testimony has been sought are immune from subpoena, I 9

have to -- Ill have to cross that bridge when I get 10

to it. It also isnt the conclusion that none of the 11

materials in the files are, as a matter of law, not 12

discloseable. But, I mean, this is going to be a 13

complex issue should we get to it. 14

I will say, however, Im going to require you to 15

make proffers on this in a manner that might be more 16

taxing on you than might otherwise be the case, 17

because Im working under the Fernando rule which 18

specifically says that you should proceed by proffer. 19

So, before any of these individuals are required 20

(a) to disclose information, (b) even respond to your 21

motion. I dont think they should be burdened with 22

responding to your subpoenas, even with motions to 23

quash, until such time as I believe that the 24

particular materials that youre seeking from them 25

would affect my decision-making under the Fernando 26

ruling. 27

43

ATTY. BAIRD: I can understand that, Your Honor. 1

In fact, Mr. Peck approached me this morning and I 2

began to give him a proffer of exactly why I had 3

called his client. 4

THE COURT: So, I -- 5

ATTY. BAIRD: And I can do that in writing. 6

THE COURT: All right. Then heres -- Im going 7

to grant the motions to quash the existing subpoenas. 8

Are there other -- I dont -- I know of four 9

subpoenas now only because theres four motions to 10

quash. Did other subpoenas issue? 11

ATTY. BAIRD: Yes, there was a subpoena for a 12

Margaret Bozek, the guardian ad litem in the 13

dissolution case. Shes represented by Ray Hassett. 14

He contacted me by phone and said just keep in touch 15

and keep me updated, but he was out of town and 16

couldnt be here today. And so I released her. 17

THE COURT: Would you either, she has not filed 18

a motion or an appearance. Certainly I invite 19

counsel, as a curtesy to Mr. Hassett, if nothing 20

else, to just alert him to whats transpired here 21

today so that he and his client are aware of where 22

were going from here. 23

ATTY. MAURIELLO: If I may, quickly, Your Honor. 24

THE COURT: Yes. 25

ATTY. MAURIELLO: We do have a witness under 26

subpoena, a judicial marshal, we are not contesting 27

44

the subpoena, I just want to make that clear to the 1

Court. 2

THE COURT: That subpoena. So I was asking 3

Attorney Baird, so there was that other motion, 4

theres a motion to a marshal. Is that Marshal 5

Clemens (phonetically) 6

ATTY. BAIRD: Three state troopers. 7

THE COURT: Three troopers? 8

ATTY. BAIRD: Three troopers. 9

THE COURT: Well, all of these -- I havent 10

ruled on anything other than the four motions to 11

quash. Will you release those individuals today from 12

those subpoenas so that they can return to their 13

stations, wherever they may be? Because I think that 14

we have all agreed that it is not appropriate to 15

begin the evidence portion of the Fernando Hearing 16

until the two threshold matters are addressed. And 17

then they can be -- I mean, the subpoenas are good 18

for 60 days I think still? 19

ATTY. BAIRD: Yes. 20

THE COURT: So, I see that Marshal Clemens is 21

here, Im sure hes aware that the subpoena does 22

direct him to appear on such date as we agree, as 23

long its been 60 days, so we have some time. And 24

Im sure hell be willing to accept the subpoena if 25

it comes at a later date. As I suspect the troopers 26

will as well. So, may they be excused though today? 27

45

ATTY. BAIRD: If were not going forward with 1

the evidence, yes. 2

THE COURT: All right. Well, were not going 3

forward with the evidence -- 4

ATTY. BAIRD: Were not. 5

THE COURT: -- because of, I believe, the 6

parties -- 7

ATTY. BAIRD: Yes. 8

THE COURT: -- agreement that these threshold -- 9

I mean, I dont want to -- I feel that these 10

threshold issues need to be addressed, youre 11

advancing one of them today for the first time and 12

that is that regardless of anything else I had no 13

authority to issue protective orders, so that has to 14

be addressed first and thats what were going to do 15

first. 16

So, the witnesses then may be excused if theyre 17

here under subpoena. 18

ATTY. MAURIELLO: If I just, quickly, for the 19

record, Your Honor, briefly -- does Your Honors 20

ruling extend to my verbal motion to quash the 21

subpoena of family relations supervisor, Andrew 22

Spurrier, so I can clarify that for the record? 23

THE COURT: Do you have any objection? Was that 24

a duces tecum order -- 25

ATTY. MAURIELLO: Yes. 26

THE COURT: -- subpoena as well? Well, as far 27

46

as the duces tecum -- I think as far as the subpoena 1

itself, Im going to quash that on the oral motion 2

because counsel didnt know of it extending to Mr. 3

Spurrier so as far as -- 4

Will counsel for the parties here, who have been 5

kind enough to indicate theyll remain in the case 6

and even file on the other case -- 7

ATTY. PECK: I was going to ask that, Your 8

Honor. 9

THE COURT: Should subpoenas go to counsel -- 10

ATTY. PECK: Absolutely. 11

THE COURT: -- rather than to the individuals? 12

ATTY. PECK: Absolutely, Your Honor. 13

Absolutely. 14

THE COURT: Attorney Baird, that may make it 15

even easier in the event we get to that -- 16

ATTY. MAURIELLO: Yes. Ill accept service -- 17

THE COURT: -- so Mr. Mauriello -- 18

ATTY. MAURIELLO: -- on all Judicial Branch 19

employees. 20

THE COURT: -- will accept service. Mr. Peck, 21

Ms. Shay -- 22

ATTY. SHAY: Yes, Your Honor. 23

THE COURT: -- and Mr. Palmer will all accept 24

service in the future. 25

ATTY. BAIRD: Thank you. 26

ATTY. PECK: On the promise I made to file an 27

47

appearance on the threatening case. 1

THE COURT: All right. Well, I do appreciate 2

everyones input. And they may all be excused with 3

the current four motions to quash being granted. 4

ATTY. PECK: May we get a copy of the proffer, 5

Your Honor, so that, assuming we get to that stage, 6

at least we have some idea of what it is? 7

THE COURT: Yeah, well, it certainly -- I dont 8

know if that requires a written proffer. But if I 9

get to the point where I think that evidence from any 10

of the subpoenaed parties may impact on my ultimate 11

decision, should we get to the Fernando Hearing, then 12

I am going to ask Attorney Baird to make a proffer as 13

to what it is -- what it is, generally, that she 14

would seek to offer, and as it pertains to your 15

clients, what particular information she seeks. So 16

that would then be available to you. I dont know if 17

I -- I will then identify anything that I hear 18

that -- if anything I hear conceivably could make a 19

difference, then I suspect that identified 20

information will appear on the subpoena. 21

ATTY. PECK: My issue, Your Honor, is not to 22

wait until they get the subpoena to see the proffer. 23

If she files a written proffer it may be treated as a 24

pleading -- 25

THE COURT: If its a written proffer, then I 26

dont see any -- it would be part of the file. 27

48

ATTY. PECK: Its a pleading, Your Honor, shes 1

duty bound to send it to counsel of record. So we 2

get the written proffer in due course. 3

THE COURT: Yeah, I guess Im not certain 4

whether it requires a written proffer. But, I dont 5

think, Attorney Baird, youd object to it being a 6

written proffer so that counsel could be, at least, 7

prepared to respond rather than getting the subpoena 8

and seeing it for the first time. 9

But well -- I suspect Attorney Baird will try 10

to see that the process runs as smoothly as it can. 11

ATTY. PECK: Thank you, Judge. 12

THE COURT: Anything else? I appreciate your 13

presence here today. Thank you. 14

ATTY. MAURIELLO: Thank you, Your Honor. 15

ATTY. SHAY: Thank you, Your Honor. 16

THE COURT: But Im going to ask Attorney Hans 17

and Attorney Baird and Mr. Taupier to remain as we 18

now set our schedule for the days ahead. 19

All right, now lets -- do you want to file a 20

brief on issue 1? 21

ATTY. BAIRD: Yes. And I do have some 22

clarification on the request for a Fernando Hearing 23

issue. Im glad it was made. 24

THE COURT: All right. Im willing to take this 25

up, you know, step by step, so. 26

But it seems to me the first issue that needs to 27

49

be addressed -- and Attorney Hans, Im going to need 1

law from you, I understand that Attorney Baird is 2

claiming that the -- a protective order can only 3

issue in a so-called family violence crime, which I 4

suspect is alleged by the defense to be a defined 5

term, statutorily. And it is Attorney Bairds claim 6

that neither of the two criminal cases pending 7

against the defendant falls within the definition of 8

a family violence crime. 9

ATTY. BAIRD: Correct. 10

THE COURT: So, that is issue -- to me thats 11

issue 1. Because I think Attorney Baird is right 12

that if I had not, in the first instance, the 13

authority to issue the order then the need for a 14

Fernando Hearing is, I think, eliminated by that. 15

And we dont need to get to the question of the 16

timeliness of the request for the hearing. Because I 17

suspect even the state would agree that if Attorney 18

Baird changed her request for a Fernando Hearing to 19

simply a motion to vacate the order as without a 20

statutory basis that it would have to be addressed. 21

So, thats what I see is the first issue. 22

And youd like an opportunity, Attorney Baird, 23

to brief that. 24

ATTY. BAIRD: Yes. 25

THE COURT: Now I dont know if you want a 26

simultaneously brief the question of timeliness, Id 27

50

invite you to do that. If the desire is, at least 1

pursuant to your other motion to, sort of, move this 2

along then I would urge you to also address in this 3

brief the second question, which is, if I determine I 4

have the authority whether or not the failure to have 5

sought a Fernando Hearing on the date that the order 6

issued. Now, of course that gets us into the 7

question if I decide the order could issue but in the 8

other file, then youre now saying that you want to 9

then make an immediate request on the day that I 10

shift it to the other docket number. So, I 11

understand thats there as well. 12

ATTY. BAIRD: What we really want is a trial. 13

But, and if this is holding it up in any way. 14

THE COURT: Well, you know, listen, I can 15

certainly talk to the attorneys about that. And 16

perhaps, if you have a few minutes, were about to 17

conclude on the record, I can talk to both of you in 18

chambers to see what we can do by way of a trial. 19

But, I suggest then -- or Ill direct you to 20

brief both issues. Authority to issue the protective 21

order, timeliness of the request. And how much time 22

would you want to file -- actually I would say it 23

should be simultaneous briefs. I dont see this as a 24

situation where they need to be responsive. 25

So, why dont we agree on a date for 26

simultaneous briefs. Ill then give each side, 27

51

perhaps, if they wish to, maybe an additional couple 1

of weeks to file a response, if they wish to, but I 2

think initial briefs could be simultaneous. 3

ATTY. BAIRD: Tuesday? 4

THE COURT: Suggestions as to how long that you 5

want? 6

ATTY. BAIRD: The 21st, Tuesday? 7

THE COURT: Why dont we, because Im asking for 8

two, why dont we go to maybe the Friday of next 9

week. Because Im going to need to research this 10

myself, obviously. And then once I receive the 11

briefs then Ill have the clerks office notify both 12

of you as to a date. Would you want argument on it 13

then as well, I guess? 14

ATTY. BAIRD: As long as it doesnt hold up 15

anything. 16

THE COURT: Hold it up. All right. Thats 17

fair. 18

All right. Are you able to submit the briefs by 19

10-24? All right, so 10-24 for simultaneous briefs. 20

If either side wants to respond, Ill put that date 21

as 10-21 [sic], thats one week more. Once Ill 22

review the briefs, Ill see if anybody responds. 23

Ill have the clerks office contact you both on or 24

about 10-31 and we will schedule argument on this for 25

the week following. 26

ATTY. BAIRD: Yes, Your Honor. And Mr. 27

52

Taupiers counsel in the family matter has reminded 1

me, graciously, thank you, that this issue does 2

impact his ability to see his children, he has not 3

been able to see his children given this issuance of 4

the protective order. So, if it was improperly 5

granted then that is -- 6

THE COURT: Fair point. 7

ATTY. BAIRD: Yes. 8

THE COURT: Okay. So, to reiterate. 10-24 9

simultaneous briefs on both issues. Issue one, 10

authority of the court to issue a protective order on 11

these cases. Issue two, timeliness of the request 12

for a hearing. 13

Each side will then have one week till 10-31 to 14

file any response. On 10-31, or at the latest, 11-3, 15

which is the Monday, the clerks office will reach 16

out to both sides; theyll be a hearing set during 17

the week of 11-3. And I would hope, having read the 18

briefs and replies if they are filed, and having 19

researched the issue myself I would, after argument, 20

hope that I would be in a position to rule then. 21

If the orders are vacated well take it from 22

there on that course. If the orders are reaffirmed, 23

so to speak, then I suspect what well do then is set 24

a date for the hearing on the Fernando A., unless we 25

come to some agreement on a trial schedule. Okay? 26

Can the lawyers remain in attendance and see me 27

53

in chambers? Is there anything else that we need to 1

take up? Nothing? 2

ATTY. HANS: No, Your Honor. 3

ATTY. BAIRD: We do have a pending motion for 4

modification of the financial and non-financial 5

conditions of bond. So that motion is pending as 6

well. 7

THE COURT: Which one is that? 8

ATTY. BAIRD: Thats the one that was filed, I 9

think, on the 14th or 15th of October, having to do -- 10

it was filed on October 10th when there was all the 11

flurry of activity -- 12

THE COURT: Well that, your associate, Im 13

forgetting Mitchells last name. 14

ATTY. BAIRD: Lake. Attorney Lake. 15

THE COURT: Yes. 16

ATTY. BAIRD: Yes. 17

THE COURT: He was here and there was -- I 18

modified -- what is the relief that this seeks? Was 19

this just dealing with the -- 20

ATTY. BAIRD: Perhaps if that could be heard on 21

the same day as the -- 22

THE COURT: So this will be heard in the first 23

week of November as well? 24

ATTY. BAIRD: Yes. 25

THE COURT: Agreed. Ill read it between now 26

and then. 27

54

ATTY. BAIRD: And I guess I also understand that 1

family court has or requires clarification of whether 2

Mr. Taupier is allowed to be in the presence of his 3

wife under the current protective order in place in 4

this court during proceedings in the family matter. 5

THE COURT: I dont think that was specifically 6

a carve out. But it would -- Attorney Hans, are 7

there scheduled -- Attorney Mathers are there 8

scheduled hearings? 9

ATTY. MATHERS: We have a status on Wednesday of 10

next week here. And its my intention for Mr. 11

Taupier to be here, providing it doesnt violate the 12

protective order should Mrs. Taupier appear. 13

We are also determining whether or not were 14

going to be going forward in the divorce trial 15

scheduled in November, there are other motions that 16

need to be addressed that will require my client, 17

obviously, to appear in court. So I just dont want 18

him to be found in viol -- 19

THE COURT: Would it normally be the practice 20

that the parties would appear in court or would only 21

counsel for a status conference in a dissolution? 22

ATTY. MATHERS: That sometimes depends on what 23

the desired outcome is. I know, for a fact, theres 24

been times when a clients present because were 25

going to be entering orders after the status, after 26

we reach some sort of agreement absent a hearing. 27

55

Sometimes the parties arent required to be here. 1

I prefer him to be here because Id like to deal 2

with the issue, right now, of access with the 3

children, having that transferred as a civil order is 4

that it refers kids stay in Vernon. Understanding 5

the protective order but should this court be 6

inclined to vacate the protective order regarding the 7

children, or at least allow father access to the 8

children either currently at his home, because this 9

is where hes required to stay, I would like to have 10

family court change the location for the visitation. 11

THE COURT: Attorney Hans, whats your position 12

on allowing there to be such contact as is, sort of, 13

likely to occur while both parties are here in the 14

courthouse? I dont know if Mrs. Taupier plans to 15

attend the status conference or not. But I guess 16

Attorney Mathers is concerned that if she invites her 17

client to come to the status conference and counsel 18

for Mrs. Taupier does the same that could be 19

considered a violation of the no contact order. 20

ATTY. HANS: Your Honor, just looking under 21

condition four of the terms and conditions of the 22

protective order issued in CR13-0200821T it says do 23

not contact the protected person, in any manner, 24

including by written, electronic or telephone 25

contact. 26

So, as long as he doesnt speak to her, I dont 27

56

think it -- 1

THE COURT: Well, it would also bar him from 2

being --- 3

ATTY. MATHERS: 100 yards away as well. 4

THE COURT: -- within 100 yards of her -- 5

ATTY. MATHERS: So. 6

THE COURT: -- because I suspect thats page -- 7

ATTY. MATHERS: Two, yes, Your Honor. 8

THE COURT: Is that the second page of the 9

protective order? 10

ATTY. HANS: But, Your Honor, I mean, there are 11

certain proceedings in the civil court where I think 12

its -- 13

ATTY. MATHERS: I would agree with you. I just 14

dont want there to be a problem. 15

ATTY. HANS: Is it fair to say its unavoidable 16

that they are going to have to -- I mean, they have a 17

trial scheduled for November 16th? 18

ATTY. MATHERS: The last week of November. 19

ATTY. HANS: Okay. 20

THE COURT: Well, well be back in court before 21

the last week. 22

ATTY. MATHERS: Right. 23

THE COURT: Im more concerned because Attorney 24

Mathers says theres a hearing next week. 25

ATTY. MATHERS: A status, Your Honor. 26

THE COURT: A status, next week. Heres -- Im 27

57

going to allow Mr. Taupier to be in the courthouse 1

for his status conference. The protective order 2

remains otherwise in full force and effect it doesnt 3

authorize any additional contact. 4

Attorney Hans, I suspect, youre free to contact 5

counsel for Mrs. -- you can contact Mr. Morano, you 6

can contact Mr. Pecks client who I guess is Mrs. 7

Taupiers lawyer and you can indicate to them that if 8

Mrs. Taupier doesnt want to see her husband and 9

theres no requirement from the family court judge 10

that she be here, then she may not -- that Ive given 11

Mr. Taupier permission to be here. 12

ATTY. HANS: Okay. 13

ATTY. MATHERS: Thank you, Your Honor. 14

THE COURT: Okay. The hearing date. 15

ATTY. MATHERS: The status is on -- 16

THE COURT: Or the status. 17

ATTY. MATHERS: -- its Wednesday, the 22nd, I 18

believe, at 2. 19

THE COURT: Wednesday the 22nd. 20

All right. So, Mr. Taupier is permitted to be 21

here on Wednesday the 22nd. 22

ATTY. MATHERS: Thank you. 23

THE COURT: For his status conference. 24

Anything else? 25

ATTY. HANS: No, Your Honor. 26

THE COURT: Now, are any of the cases that you 27

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have, Attorney Baird and Attorney Hans, just give me 1

two minutes, Ill come and see you. 2

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NO: MMX-CR14-0675616T : SUPERIOR COURT STATE OF CONNECTICUT : JUDICIAL DISTRICT OF MIDDLESEX v. : AT MIDDLETOWN, CONNECTICUT EDWARD F. TAUPIER : OCTOBER 17, 2014

C E R T I F I C A T I O N

I hereby certify the foregoing pages are a true and

correct transcription of the audio recording of the above-

referenced case, heard in Superior Court, Judicial District of

Middlesex, Middletown, Connecticut, before the Honorable David P. Gold, Judge, on the 17th day of October, 2014.

Dated this 24th day of October, 2014 in Middletown,

Connecticut.

_______________________________ Carrie Bogdan Court Recording Monitor