As Justice Louis Brandeis wrote, "Our government ... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
New Orleans Prosecutors Accused of Using Fake Subpoenas
By ALAN BLINDEROCT. 17, 2017
Leon A. Cannizzaro Jr., the district attorney for Orleans Parish, walked past protesters during the trial in the shooting death of Will Smith, a former New Orleans Saints player, last December. Credit Matthew Hinton/The Advocate, via Associated Press
Topped with the word “subpoena” and the seal of the district attorney in New Orleans, the documents carried an air of authority. They instructed people to appear before prosecutors “to testify to the truth,” and they warned that “failure to obey” the missive could lead to a fine and imprisonment.
But the personalized documents were never endorsed by any court. Instead, according to a federal civil rights lawsuit brought on Tuesday in New Orleans, the papers that were disguised as subpoenas were central to a sustained and fraudulent effort by local prosecutors to coerce witnesses.
The lawsuit is an escalation of a controversy that emerged this year in Louisiana’s most populous city, but it also brings new scrutiny to the bare-knuckled tactics that officials across the country sometimes use to build cases.
The lawsuit, filed by seven plaintiffs, accused local prosecutors of menacing prospective witnesses with what were supposedly subpoenas. Sometimes, the lawsuit said, officials asked judges that people be jailed as material witnesses after they balked at the demands for private meetings with prosecutors.
The approach, the lawsuit said, intended “to create a culture of fear and intimidation that chills crime victims and witnesses from asserting their constitutional rights.” It added, “As a result of these policies, crime victims and witnesses in Orleans Parish know that if they exercise their right not to speak with an investigating prosecutor, they will face harassment, threats, arrest and jail.”
The suit contends that prosecutors repeatedly deceived witnesses and judges, and abused a provision of Louisiana law that allows, in some circumstances, for the detention of witnesses whose testimony is “essential.”
In one instance, according to the lawsuit, a woman was jailed for eight days after she refused to meet with the authorities about a murder case. In another episode, a victim of domestic violence was held for five days after defying the district attorney’s request; the man who abused her ultimately pleaded guilty but was not sentenced to jail.
“Creating their own templates that are purported to be valid legal documents to secure private meetings with witnesses is really on another level,” said Anna Arceneaux, an American Civil Liberties Union lawyer who is involved in the case that was filed Tuesday.
DOCUMENT
‘Subpoena’ From New Orleans Prosecutors
A document from the district attorney's office demanding testimony from a witness. The American Civil Liberties Union has filed a lawsuit saying that this and other documents were falsely labeled "subpoenas" to trick witnesses.
Leon A. Cannizzaro Jr., the district attorney for Orleans Parish, said in a statement on Tuesday that “no individual who alleges that they were aggrieved by my office’s policies and practices has contacted me,” and that he expected his office and its employees to be “completely vindicated.”
In federal court, he said, “naked allegations must be supported by substantive proof.”
The behavior of Mr. Cannizzaro’s prosecutors has been the subject of outrage and frustration since his office’s use of fraudulent documents became public this year.
“It was improper,” Mr. Cannizzaro told a television station in the spring, when he moved to quell an uproar by substituting “notice to appear” for “subpoena.”
“That was incorrect,” he said. “I take responsibility for that.”
On Tuesday, Ms. Arceneaux said that even changing the label to “notice to appear” would be insufficient. “Those documents have the same purpose,” she said, “and that is to coerce and mislead witnesses into believing that they are required to appear at the district attorney’s office.”
It is not unusual for law enforcement officials to struggle to gather testimony, often because witnesses fear retaliation or do not trust the authorities. Officials typically try to overcome such reluctance with incentives, like relocation or immunity, or long conversations that prove persuasive.
“Really good detectives can really make a huge difference,” said Glenn F. Ivey, a defense lawyer in Washington who was the state’s attorney for Prince George’s County, Md. “They can talk to people and convince them to testify.”
Like several other lawyers, Mr. Ivey said he had never heard of allegations like the ones in New Orleans, where prosecutors have long used written correspondence to try to secure testimony.
According to records provided by lawyers involved in the litigation against Mr. Cannizzaro’s office, prosecutors have been sending what critics call “fake subpoenas” since at least 1999. Lawyers in New Orleans, though, said they believed the practice had intensified since Mr. Cannizzaro, who was elected in 2008, became district attorney.
Defense lawyers are already discussing whether old cases might be susceptible to challenges if they involved witnesses who received documents that were improperly marked as subpoenas.
“The possible negative impact of this is limited only by your imagination, I think,” Mr. Ivey said. “This is such an affirmative abuse of state power that is really shocking to me that they would do this.”
RELATED COVERAGE
A version of this article appears in print on October 18, 2017, on Page A20 of the New York edition with the headline: Lawsuit Says Sham Subpoenas Were Used to Coerce Testimony.
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