Criminal Justice
 

Will prosecutors who sent fake subpoenas face any consequences?

Last week, the district attorneys in Orleans and Jefferson parishes admitted their prosecutors had sent fake subpoenas to witnesses in criminal cases to pressure them to talk.

Legal experts say the practice was unethical, if not illegal. In an interview with WWL-TV, Orleans Parish District Attorney Leon Cannizzaro acknowledged the practice was “improper.”

What, if any, consequences will be faced by the prosecutors who sent the bogus subpoenas?

We spoke with a former U.S. Department of Justice attorney, a former U.S. Attorney and a former prosecutor turned public-corruption watchdog. The possible consequences range from federal prosecution to discipline by the state board that oversees attorney conduct.

But it’s not at all certain that anything will happen — even though many people, including the Louisiana District Attorneys Association, now acknowledge prosecutors shouldn’t have sent the false notices.

“Obviously it was inappropriate and I think those practices have been discontinued,” said Pete Adams, the group’s executive director. He had declined to comment for The Lens’ initial story detailing what was going on.

The U.S. Attorney’s Office, the Louisiana Attorney General’s Office and the Office of Disciplinary Counsel all declined to confirm or deny any investigations.

In both parishes, prosecutors delivered notices labeled “SUBPOENA” to witnesses, telling them they had to show up at the DA’s office for questioning. Those so-called subpoenas were sent without a judge’s approval, which is required by state law. So they had no legal authority.

The notices sent from the Orleans Parish DA’s office threatened fines or jail time if the recipient ignored them. The ones from the Jefferson Parish DA’s office didn’t.

Late Wednesday afternoon, North Shore District Attorney Warren Montgomery said in a written statement that “documents that look like subpoenas” had been issued without his knowledge under his watch and his predecessor’s.

His district includes St. Tammany and Washington parishes.

“While the documents did not mention the word ‘subpoena,’ I consider this misleading and unacceptable, and it has been discontinued,” Montgomery said.

Last week, after we informed the Orleans Parish DA’s office that experts had told us its notices could be illegal, the office abruptly announced it would stop using them. The Jefferson Parish DA’s office said its prosecutors used similar notices and would also stop.

Locally and nationally, public reaction was swift and sharp. Defense attorney and New Orleans City Councilman Jason Williams said if a defense attorney had done something similar, “I guarantee you this DA would try to prosecute that defense attorney.”

Could that sort of thing happen? Here’s what we’ve learned.

Did fake subpoenas violate federal civil rights law?

Chiraag Bains, a former Department of Justice civil rights attorney and a senior fellow at Harvard Law School, told The Lens prosecutors’ use of fake subpoenas may be a criminal civil rights violation.

Bains served as a senior counsel to the Assistant Attorney General for the Justice Department’s Civil Rights Division under President Barack Obama.

He said the practice “raises potential constitutional issues.”

The U.S. Supreme Court has held that compelling a witness to appear through a lawful subpoena isn’t a type of seizure under the Fourth Amendment. But an unlawful subpoena may be a different story, he said.

“A person might well be able to argue that being unlawfully compelled to appear and testify at a prosecutor’s office, on threat of a fine and imprisonment, is an unreasonable seizure under the Fourth Amendment,” Bains said in an email.

And forcing defense witnesses to appear before prosecutors in advance of a trial “could raise due process issues,” he said. He cited a 1976 federal appeals court decision overturning a guilty verdict in a drug case. In that case, a prosecutor used an invalid subpoena to bring a defense witness in for questioning, then tried to intimidate her not to testify.

“The appeals court held that the prosecutor’s conduct deprived the defendant of his right to call witnesses on his behalf,” Bains said.

The misuse of the subpoena was clearly a factor in the decision, he said.

“If it could be proven that a prosecutor knew that a certain course of action would be unlawful and took that action anyway, the prosecutor would have criminal exposure,” Bains said.

State law spells out how these types of subpoenas can be issued. Prosecutors must file a written motion with a judge presenting “reasonable grounds” for why they need to meet with the witness. The judge can order the court clerk to issue the subpoena.

A former U.S. attorney in New Orleans, however, said federal charges are unlikely.

“It does not appear that they were seeking to harm anyone, as opposed to gathering the facts,” Harry Rosenberg said.

“What I could see reading your articles, prosecutors in both parishes were well-intentioned in terms of trying to develop their cases against their defendants, and obviously stepped outside the boundaries,” he said.

Bains said the criminal statute on civil rights violations is typically used to prosecute police officers for excessive force. The law was used to prosecute New Orleans police officers in the Danziger Bridge shootings and the killing of Henry Glover after Hurricane Katrina.

But the Department of Justice “has charged prosecutors and judges under this provision for unlawful conduct,” he said.

In one case last year, a federal immigration prosecutor in Seattle was sentenced to a month in prison and banned from practicing law for 10 years after he pleaded guilty to falsifying records in a case.

But to pursue such a case, Rosenberg said, federal prosecutors would have to prove not only that assistant district attorneys knew the fake subpoenas were illegal, but that they intentionally used them to harm witnesses — and that the witnesses were harmed.

He said he doesn’t believe prosecutors did that.

The Lens has found three cases in Orleans Parish in which fake subpoenas were delivered to witnesses. All three were connected to the defendants. The subpoenas were sent out within weeks or days of trial.

In one case, a woman told The Lens that people with the Orleans Parish DA’s office verbally threatened her with jail twice, including once after her lawyer had gone to court to quash the so-called subpoena.

Rosenberg said the DA’s decision to stop sending the fake subpoenas helps them.

“Given that both district attorneys offices immediately ceased what they were doing, I think it mitigates to their favor that this is not going to rise to a violation of the Civil Rights Act,” he said. “Once it was brought to their attention, it ceased immediately.”

Chris Bowman, an assistant district attorney and spokesman for Cannizzaro, has told The Lens he didn’t know how often the notices were sent out, but they had been used for decades.

He declined an interview request for this article. The assistant district attorneys whose names we’ve seen on fake subpoenas declined to comment or didn’t respond to phone calls.

In a written statement Wednesday night, the Jefferson Parish DA’s office said that the law requires only a request, not a hearing with prosecutors and defense attorneys. The motion is “generally considered to be a perfunctory step,” the statement said.

“We strongly believe that any subpoena that may have been issued without such a motion would have been signed and ordered issued by a court, had such a motion been presented,” the statement continued.

“As such, we do not believe that any ‘DA subpoenas’ that may have been delivered by this office to a reluctant witness without going through the court process resulted in any undue advantage to the state.”

What about state charges?

Defense lawyers and a nationally known expert in legal ethics have said the fake subpoenas may be a state crime.

Colin Reingold, a lawyer with Orleans Public Defenders, told The Lens last week the practice “borders on fraud or forgery.”

The so-called subpoenas don’t include a judge’s name or signature. But Louisiana’s law on forgery includes “to alter, make, complete, execute, or authenticate any writing so that it purports … to be the act of another who did not authorize that act.”

Rafael Goyeneche, a former Orleans Parish prosecutor and now president of the Metropolitan Crime Commission, said he doesn’t think the fake subpoenas were criminal.

He said prosecutors used them when he was with the office in the 1980s. “No one knows when it started and who started it,” he said.

Unlike the cases The Lens has found, Goyeneche said he remembers they were mainly used in white-collar cases, not street crime.

“Upon reflection, it was inappropriate,” he said. “Do I believe that’s a prosecutable offense? I’m not sure what statute you could prosecute it under.”

Attorney discipline

Attorneys must uphold certain rules of conduct. If they break the rules, they can be disciplined by the Louisiana Attorney Disciplinary Board or the Louisiana Supreme Court.

Punishment could range from reprimand to disbarment.

Loyola University law professor and legal ethics expert Dane Ciolino said the use of fake subpoenas may violate a rule requiring lawyers to be truthful to third parties such as witnesses and victims.

The disciplinary process begins with an investigation by the Office of Disciplinary Counsel. It decides whether to refer a case to the board. Anyone can file a complaint.

Even if the office hasn’t received a complaint, Rosenberg said, the Office of Disciplinary Counsel probably is monitoring news coverage of the fake subpoenas.

In a phone interview, Chief Disciplinary Counsel Charles Plattsmier said he has seen the news coverage. But under state Supreme Court rules, he is not allowed to reveal the existence of an investigation or comment on an ongoing one.

The Lens found two cases in other states in which similar practices resulted in discipline for the attorneys involved.

In 2013, the Oklahoma Supreme Court suspended former prosecutor Brad Miller for six months for prosecutorial misconduct. The discipline was related to a 20-year-old murder case he had prosecuted; the convictions were overturned in 2009.

Miller used fake subpoenas to pressure three girls — potential witnesses aged 9, 12 and 14 — to meet with prosecutors about the case. He used the fake subpoenas to obtain arrest warrants for the girls.

The use of fake subpoenas was just one of a number of charges against Miller.

In its opinion, the Oklahoma Supreme Court called the conduct “reprehensible.”

Earlier this year, the New Mexico Supreme Court reprimanded district attorney Donald Gallegos and his deputy Emilio Chavez after finding that Chavez had sent 94 fake subpoenas to obtain phone records from mobile phone companies.

Unlike Orleans Parish, where the fake subpoenas don’t appear in court records, Chavez filed the documents in court and had them assigned to “miscellaneous case files,” according to the Supreme Court opinion.

Gallegos authorized some of the subpoenas but said he was not aware of most of them.

Supreme Court justices noted the wording on the fake subpoenas, which was similar to the wording that Orleans prosecutors used.  The template for the documents, they wrote, “contains a stern warning to its addressees: ‘IF YOU DO NOT COMPLY WITH THIS SUBPOENA you may be held in contempt of court and punished by fine or imprisonment.’”

“In this case,” the justices continued, “sending subpoenas that implied court authority, but lacked it, affected the rights of the subpoena recipients and third parties.”

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