Criminal Justice
 

Notices sent to witnesses on North Shore weren’t called subpoenas, but they looked real enough

A week after The Lens reported that prosecutors in Orleans and Jefferson parishes used fake subpoenas to pressure witnesses to meet with them privately, North Shore District Attorney Warren Montgomery revealed his staff employed a similar tactic.

His office has handed over copies of 33 notices sent since 2015.

Unlike the ones in Orleans and Jefferson parishes, they did not say “subpoena.” But they looked real enough:

  • They resembled genuine legal documents, with “Criminal District Court for the Parish of St. Tammany” printed near the top.
  • They bore the name of the clerk of court, whose office summons people for trials.
  • They told recipients they were “hereby notified” to come to the DA’s office to “testify.”

That could have led people to believe these were court orders and they had no choice but to talk to prosecutors  — neither of which was true.

“This is a sham. It’s fraudulent. It’s invalid,” said Bennett Gershman, a Pace University law professor and an expert on prosecutorial misconduct. He said there’s little difference between these notices and the fake subpoenas sent by the Orleans and Jefferson DAs.

Montgomery said he didn’t know his staff used the notices, and he acknowledged they were misleading.

“I think a layperson receiving this document could reasonably believe it was a legal document,” he said in an hourlong interview last week at the courthouse in Covington. His office deals with criminal cases in St. Tammany and Washington parishes.

However, Montgomery said there’s nothing inappropriate about prosecutors contacting witnesses — indeed, they should.

“It was not a subpoena. It was a notice,” he said. “To the best of our knowledge, they were not abused. And they were used in furtherance of prosecutions in a legitimate and fair way.”

State law allows prosecutors to compel witnesses to attend such meetings, but prosecutors must first ask a judge in writing. The judge then instructs a clerk of court to issue a subpoena.

In these cases, prosecutors in Montgomery’s office didn’t seek a judge’s approval and just sent the notices.

Loyola University law professor Dane Ciolino, a legal ethics expert, agreed the notices were misleading. But he said they were far less deceptive than the fake subpoenas issued by the Orleans and Jefferson DAs.

“It doesn’t say subpoena,” Ciolino noted. “It doesn’t say, under penalty of contempt of court.”

The notices sent by Orleans Parish DA Leon Cannizzaro’s office were falsely marked “SUBPOENA.” They threatened fines or imprisonment if the witness didn’t show up for an interview with prosecutors.

Cannizzaro has come under fire for his aggressive tactics. In April, the watchdog group Court Watch NOLA reported that his office has obtained arrest warrants for crime victims — including rape and domestic violence — who were reluctant to testify.

His prosecutors have pursued criminal charges against attorneys and investigators in the public defender’s office. And they have charged witnesses with perjury for recanting their testimony.

Cannizzaro now faces multiple lawsuits and an effort to recall him from office.

Jefferson Parish DA Paul Connick has admitted his office used documents falsely labeled as subpoenas, too, although they didn’t threaten criminal penalties.

All three DAs have discontinued the practice since The Lens began reporting on it.

Montgomery provided The Lens with 33 witness notices in response to a public records request.

Cannizzaro denied a similar request; the Lens has filed a lawsuit to force him to hand them over. Connick’s office is still working on its response.

Language, clerk’s name add to false impression of legal authority

The notices sent by Montgomery’s office resembled real witness summonses, which the court clerk sends to people to make them testify in a hearing or a trial.

The language was forceful: “YOU ARE HEREBY NOTIFIED to appear before the District Attorney in the Criminal District Court for the Parish of St. Tammany … to testify to the truth according to your knowledge in such matters as may be required of you.”

They bore the name of the clerk of court, just like a real summons. But the clerk, Melissa Henry, had nothing to do with them, Montgomery said. Henry has not responded to repeated requests for comment.

Deputy clerks working in the DA’s office signed their names instead, according to Montgomery. The printouts provided to The Lens were not signed.

Here’s what North Shore prosecutors sent to some witnesses



Here’s a real witness subpoena



 

Montgomery said the listing of Henry’s name was a mistake. Some of the notices bore the name of the prior clerk.

Several notices instructed witnesses to meet with Montgomery himself, which he said was another error.

“It refers to me as ‘ADA Warren Montgomery.’ Well, I’m not an assistant district attorney. And I never met with any of these people,” he said.

However, he couldn’t say whether the notices were intended to be deceptive because he doesn’t know who created them, why they were crafted the way they were, or when the office started using them.

He doesn’t know how the notices were delivered or even if all 33 notices were in fact delivered. He only knows, from a review of the office’s computer system, that they had been created.

If his office had obtained a subpoena through the regular process, the court clerk would have a record of each one and when it was delivered.

His prosecutors apparently have not sought any real witness subpoenas, which are called Article 66 subpoenas. His staff was unable to find that form in their computer system.

“There’s nothing wrong with the DA’s office communicating with witnesses and victims,” Montgomery said. “In fact, it’s our obligation to prepare for a trial. And so certainly we’re going to communicate with them.

“What was inappropriate in this case,” he said, “was to send a mistaken form which could mislead anyone.”

Ciolino said the notices were misleading because “it resembles a subpoena even though it doesn’t claim to be one.” But “it’s not as egregious as the Orleans Parish document.”

Gershman said it doesn’t matter that the notices didn’t have the word “subpoena.”

“This is a prosecutor using an oppressive, phony document. A person looking at this is going to believe he is required by the law to come into the prosecutor’s office,” he said. “I don’t see any difference in removing certain words.”

Defense lawyers have suggested the fake subpoenas sent by Orleans prosecutors could constitute forgery, defined in state law as an effort “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.”

Considering that these documents bore the clerk’s name, we asked Montgomery if these notices amounted to forgery. “Not that I’m aware of,” he said. Ciolino agreed.

How long were they used?

Montgomery said the practice dates back at least four years, when the office’s current computer system was installed. He didn’t know if it went back further.

That would mean the notices were used under former District Attorney Walter Reed, who was sentenced to four years in prison on corruption charges. The Lens attempted to contact him through his lawyer, but he didn’t respond.

There was no policy on using these notices because they weren’t part of the office’s standard procedure, said Collin Sims, the prosecutor in charge of the criminal division. Some assistant district attorneys who worked under Reed knew about the form and used it in certain cases, he said.

Given that the office turned over 33 notices spanning two and a half years, they don’t appear to have been used often.

Notices used in domestic violence, sex crimes

The 33 notices were for 23 cases, some of which are still open.

Most of the charges were for violent crimes and domestic violence, Montgomery said. The Lens found several notices used in child molestation, rape and child pornography cases.

Some of the people who received the notices were the victims, Montgomery said. One was a juvenile.

The Lens has decided not to publish the notices until we learn more about the cases and how the witnesses were tied to the alleged crimes.

Seven notices were used in Slidell City Court cases, all but one to defendants. Montgomery said they were used to tell people their court date had been changed or to discuss a pretrial diversion program. That’s when the DA drops a charge if the defendant takes steps such as completing anger management classes or passing drug tests.

Our review showed that in most of the Slidell cases, trial dates had been changed or defendants entered a diversion program.

John Lindner, the chief public defender for St. Tammany and Washington parishes, said it was “mind-boggling” that the DA’s office felt the need to use these notices. Witnesses in St. Tammany Parish, he said, are usually happy to cooperate with prosecutors.

“In Orleans — I’m not justifying it — I think in Orleans they have a lot more trouble getting witnesses to cooperate,” he said. On the North Shore, “I can’t see why they would have to do that.”

At least one of the notices was for a case handled by a public defender. The Lens provided Lindner with copies of the notices, and he is checking them against his case files.

Defense attorney Roy Burns, who ran against Montgomery for DA and later supported him, said he was not at all troubled to learn witnesses in two of his cases appear to have received these notices.

“I have no heartburn” about the practice, he said, and he doesn’t believe prosecutors used them for anything improper.

Montgomery said his office is reviewing its files to learn how the notices were used. Defense attorneys and legal experts have said they’re concerned fake subpoenas — and on the North Shore, misleading notices — could be used to bully witnesses or gain an advantage in prosecution.

Montgomery said his prosecutors knows they’re obligated to inform a defendant’s attorney if they obtain information that could help him.

“I have no evidence that the accused was prejudiced,” Montgomery said. “Prejudiced in the sense that it impacted them receiving a fair trial. I have no evidence of that.”

But “I can’t say for certain” it hasn’t happened

Although he said he would expect prosecutors to keep notes from witness interviews, that apparently didn’t happen.

The Lens asked his office for notes or recordings of the meetings. Some of the files are not public because the cases are still open or involve juveniles. In the 12 closed cases, an assistant district attorney said they couldn’t find anything.

Shannon Sims and Michael Stein contributed to this report.

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