Criminal Justice
 

The Lens sues District Attorney Leon Cannizzaro to force him to turn over fake subpoenas

The Lens’ attorney filed a lawsuit Monday on behalf of reporter Charles Maldonado to force Orleans Parish District Attorney Leon Cannizzaro to hand over copies of fake subpoenas his office sent to witnesses in criminal cases.

The ACLU of Louisiana filed a similar suit Monday as well.

The Lens revealed in late April that prosecutors were sending the phony subpoenas to people to pressure them to come into the DA’s office for interviews. A spokesman for Cannizzaro’s office defended the practice, but the day we published our story, the office abruptly said it would stop using them.

The notices said “SUBPOENA” at the top, cited state law and threatened jail or fines if the recipient ignored them. But they had never been authorized by a judge. Legal experts have said the misleading notices were unethical and possibly illegal.

The day after we published that story, Maldonado filed a public records request with the office seeking copies of all “D.A. subpoenas,” which is what the office calls them, that had been issued since January 2016.

The office denied his request, saying someone would have to manually search thousands of case files to find all of them.

The Lens’ lawsuit, filed by Scott Sternberg of Sternberg, Naccari & White, asks a judge to force the DA’s office to provide the records.

“These records are integral to the public’s concern about how our community is kept safe,” Sternberg said. “The public’s interest in them is of the highest order and The Lens is going to make sure that the public gets to see them.”

Chris Bowman, an assistant district attorney and spokesman for the Orleans Parish DA, said he would decide whether he would comment on the suit after reading it.

When we were reporting the initial story, Bowman told The Lens he didn’t know how often the notices had been sent out.

Representatives of the DA’s office have told The Lens and other media the so-called “D.A. subpoenas” weren’t stored in a central location, which would force them to look through individual case files to find them.

“These are documents created by the government and transmitted to third parties — the fact that they might be kept in separate case files is irrelevant,” Sternberg said.

If a government agency could avoid public access to records “by simply placing public records in separate files, it would defeat the purpose that they collect the records and produce them for inspection or copying,” he said.

Maldonado asked for the documents to help answer key questions about the practice: Who received the notices, and what types of cases were they used in?

Without the official records, The Lens has decided to go directly to the public to get those answers. Friday, we dropped off 10,000 postcards to be sent to households and businesses in New Orleans.

The ACLU’s suit also seeks to force Cannizzaro’s office to turn over records. It’s based on a request Executive Director Marjorie Esman made earlier this month seeking records with the names of all lawyers with the Orleans Parish DA’s office who “authorized or sent” these notices. The request was denied on similar grounds.

District attorneys for Jefferson Parish, as well as St. Tammany and Washington parishes (one DA handles both), have acknowledged sending similar notices to witnesses. Jefferson’s were also falsely labeled “subpoena”; the ones on the North Shore were not. They, too, said they would end the practice.

We asked for these records from those offices, too. We’ve received them from the DA on the North Shore and are reviewing them.

The suits follow one filed Friday by the Roderick and Solange MacArthur Justice Center, which also represents inmates in the city jail in an ongoing federal lawsuit.

That suit argues that the DA misled MacArthur back in 2015 when it asked for all copies of subpoenas issued under Article 66 of the Louisiana Code of Criminal Procedure, which allows prosecutors to ask a judge to tell a witness to come in for an interview.

That’s the law that the fake subpoenas cited.

The DA’s office responded that it didn’t keep records of Article 66 subpoenas in a single place and directed them to the court clerk’s office.

That would be the place to find these subpoenas — if they had been properly issued.

“Due to recent reporting by investigative online media outlet The Lens, Plaintiff has now learned that the District Attorney’s response directing her to contact the court for records was knowingly false and intentionally misleading,” the MacArthur center wrote in the suit.

MacArthur’s suit also questions the constitutionality of Article 66 subpoenas, which prosecutors have used for obtaining documents and physical evidence, because prosecutors must meet a lower standard than for a search warrant.

A hearing in The Lens’ case has been set for 9:30 a.m. Monday before Civil District Court Judge Kern Reese.

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