Criminal Justice
 

DA can’t say how often fake subpoenas were used, and it’s too hard to look

After learning last month that Orleans Parish District Attorney Leon Cannizzaro’s office was serving witnesses with fake subpoenas to pressure them into talking to prosecutors, one of the first questions The Lens asked was, how often does this happen?

In an interview for an earlier story, Assistant District Attorney Chris Bowman, who serves as a spokesman for the office, said he didn’t know.

That question remains unanswered this week. Tuesday, the DA’s office denied The Lens’ public-records request for all so-called “DA subpoenas” since the beginning of last year. The reason for the denial was that the DA’s office does not know where the fake subpoenas are and believes it would be too difficult to find them.

According to a response letter The Lens received this week signed by Assistant District Attorney Donna Andrieu, finding the fake subpoenas would require a manual “review of literally thousands of closed files, a substantial number of which are stored off-site.”

That makes the request “unreasonably burdensome,” she wrote. “Accordingly, your request is denied at this time.”

Real subpoenas leave real paper trails

In effect, the response uses the unusual, unlawful nature of the subpoenas to shield them from the state Public Records Act.

If the DA’s office had issued subpoenas properly, “There would be a very clear record,” Councilman Jason Williams, a defense attorney, told The Lens in an interview. Criminal Court Clerk Arthur Morrell, whose office is responsible for keeping court records, confirmed that properly authorized subpoenas would be available through clerks’ offices.

“It’s hard for a government agency to hide behind informality and inefficiency as a way to keep public documents from disclosure,” said Robert Scott, president of the Public Affairs Research Council of Louisiana.

Andrieu could not be reached for comment, and Bowman declined an interview request.

As The Lens previously reported, the DA’s office used the fake subpoenas to pressure witnesses to come to private meetings with prosecutors. The documents threatened fines or imprisonment for anyone who didn’t comply. Such meetings are allowed under Louisiana law, but prosecutors first have to make a formal request to a judge. Cannizzaro’s staffers didn’t do that, meaning the “subpoenas” were invalid and the threats were empty.

Jefferson Parish District Attorney Paul Connick later admitted that his office used a similar tactic. Unlike Orleans, Jefferson Parish’s fake subpoena did not threaten criminal penalties. North Shore District Attorney Warren Montgomery, whose district includes St. Tammany and Washington parishes, said his prosecutors sent out documents that “look like subpoenas”  — though they were not marked “subpoena” — to summon witnesses for meetings. They did not threaten jail or fines, Montgomery said.

All three offices said they would end the practice immediately. This week, The Lens filed public records requests seeking those documents from those offices. Montgomery’s office provided the records on Friday, and The Lens is reviewing them. Connick’s office has yet to respond.

Asked about the response to the records request, Williams said he suspects something else: Cannizzaro’s office doesn’t want the witnesses who received them to tell their stories.

“If you turn over the public records, you get to talk to those people, I can talk to these people, the Department of Justice may want to talk to these people, the Disciplinary Counsel might talk to those people,” he said.

Without the records, the public has no way of finding out what went on in the meetings. Williams said the practice could easily lead to abusive conduct by prosecutors. Chiraag Bains, a senior Harvard Law School fellow and former civil rights attorney for the Department of Justice, previously told The Lens that the practice may constitute a criminal civil rights violation, though former U.S. Attorney Harry Rosenberg said that was unlikely.

“There’s a really sort of fine line between building your case and constructing a fiction using that sort of direct intimidation,” Williams said. “If they used those subpoenas to sort of scare people away from the case, then that’s another problem.”

Only paper records in the digital age?

Williams said the response to the records request also raises troubling questions about how Cannizzaro keeps records.

“They are doing everything via paper files. If that’s the case, that certainly is concerning,” he said. “It’s less expensive and it takes less man-hours and people to keep digital records.”

Carl Redman, former editor of The Advocate, said the District Attorney’s Office should have the files digitized, or at least have digital guides to its paper files.

“They’re basically admitting that they have such a crummy filing system they can’t get their hands on it,” Redman said.

He said that could be a problem for an office that handles a large number of criminal cases.

“If he has a very sensitive criminal prosecution going, and he can’t get his hands on those files without leafing through paper records, that’s just nuts,” he said, noting that the Lens’ request dated back only to January 2016. “You’re not going back and asking them to look for records from 1957.”

Scott said that because criminal case files contain so much sensitive information, it’s understandable that handling public records requests could be difficult for prosecutors. The Public Records Act provides broad exceptions for records of criminal investigations, shielding most of them from disclosure at least until cases are closed.

“They’re going to have agency needs that are probably going to complicate the open records process,” he said. “I think their system is obviously going to be a lot more complicated, and they need to have structures in place that protects individuals and the integrity of the process.”

Still, Scott said it’s best if those records subject to disclosure are easy to find.

“Once those documents do reach a point when they do become public records, I think it’s in the agency’s interest to give some forethought as to how those records can be released,” he said.

The rejection letter also says the office does not maintain a list of “DA subpoenas,” and is not required to create one for The Lens.

“Rather, the custodian need only make the record available in the particular format in which it is maintained,” Andrieu wrote, citing case law.

But as Redman pointed out, The Lens asked for the subpoenas themselves, not a list.

“I think all this business about creating a list is a smokescreen. You didn’t ask for a list. You asked for a document,” Redman said.

Like Williams, Redman said he wonders if the difficulty of obtaining the records is the only reason Cannizzaro’s office is keeping them private.

He could think of two.

One is, “They don’t know how often these fake subpoenas were used, and they don’t want to admit that,” he said. “Either that or they do know, and it’s a practice that’s so rife and so abusive that they don’t want the public to know.”

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