Criminal Justice
 

Transcript shows judge didn’t know about fake subpoena when she issued arrest warrant

An Orleans Parish judge didn’t know a prosecutor used a fake subpoena when he asked her to issue an arrest warrant for a domestic violence victim in January, according to a transcript of the hearing.

The transcript contradicts a claim Orleans Parish District Attorney Leon Cannizzaro made last week in an interview with The Lens. He said Criminal District Judge Laurie White knew when she issued the arrest warrant that the prosecutor had used a “DA subpoena,” the office’s term for a fake subpoena.

Until The Lens revealed the practice in April, the DA’s office used those notices to pressure witnesses to come in for private interviews with prosecutors.

They were marked “subpoena” and threatened fines and jail if the witnesses didn’t cooperate. None of that was true. They had not been approved by a judge and were not issued by the Clerk of Court, as the law requires.

Cannizzaro’s office announced it would stop using them the same day The Lens published a story in which legal experts and defense attorneys said the notices were misleading, unethical and possibly illegal.

According to the transcript of the January hearing, White learned a few hours after issuing the arrest warrant that something was wrong with a subpoena in the case. She later said the “DA’s subpoena” used in the case “really doesn’t have any authority.”

But she recalled the arrest warrant only after the DA’s office decided to drop its charges against the victim’s ex-boyfriend.

Chris Bowman, Cannizzaro’s spokesman, said the transcript shows “Judge White was well aware of the legal significance of the DA’s subpoena but, nevertheless, chose not to recall the material witness warrant until after the case was dismissed.”

In an interview, White said she knew the DA’s office sent notices to witnesses to get them to come in for interviews. But she didn’t know they claimed to have the force of law and threatened fines or imprisonment if people ignored them.

“No one had talked about it being a fake subpoena at that point,” she said.

DA has said fake subpoenas carried no consequences

Cannizzaro has said it was improper to send documents falsely called subpoenas, but he has characterized them as relatively harmless.

“There are no legal consequences for the person who is the subject of that notice if they do not show up,” he told WWL-TV in April.

The Lens later learned that a prosecutor had tried to jail a victim of alleged domestic violence in part because she had not obeyed a fake subpoena.

The woman, whom The Lens is not identifying because of the nature of the charges, had accused her boyfriend at the time, New Orleans police officer James Cunningham, of breaking into her house, injuring her and holding her against her will in two separate incidents in 2015.

She later decided she didn’t want to pursue the charges and stopped responding to the DA’s office, according to the transcript.

After the trial was delayed because the victim didn’t come to court, Assistant District Attorney William Dieters asked White for a material witness warrant, which the DA’s office uses to arrest key witnesses who it believes will not show up to testify.

White issued the warrant, but woman was never arrested.

In an interview last week about the case, Cannizzaro admitted that Dieters sent a fake subpoena and cited it in the motion for the victim’s arrest.

But he defended Dieters’ actions, saying victims have a responsibility to follow through on criminal complaints. He claimed White knew the subpoena was fake before she issued the warrant and said as much in court.

“The judge made a statement on the record that the DA subpoena, it’s not a valid subpoena,” Cannizzaro said.

The Lens requested a transcript before publishing our story, but it was not immediately available. We got it this week.

The transcript shows that White’s remarks about the validity of the “DA subpoena” came hours after she issued the warrant.

Prosecutor asks for arrest warrant on morning of trial

After repeated delays, Cunningham’s trial was scheduled for Jan. 27. About 10 a.m. that day, Dieters asked for the woman to be arrested.

He said that the DA’s office had not been in contact with her since the previous trial date two days before.

“At that time she decided that she didn’t want to have any more contact with my office,” Dieters told White. Her phone had gone dead, he added.

He said that he sent an investigator to the woman’s apartment building to serve a subpoena for that day.

The subpoena the investigator served was fake. Cannizzaro said Dieters used the fake subpoena, which directed her to come to his office rather than court, because he wanted to prepare her for trial.

Prosecutors are allowed to use subpoenas to compel witnesses to come in for such meetings; the process is spelled out in Article 66 of the Code of Criminal Procedure. But they have to request it in writing, a judge must sign off on it, and the clerk’s office must issue the subpoena. None of that happened in this case.

Defense lawyer tells judge subpoena was improper

White signed the order for the warrant.  She did not indicate she knew about a fake subpoena at the time.

It didn’t come up until a few hours later when John Fuller, the lawyer for the defendant, showed up for the trial.

“The subpoena that they issued for her, if what I’ve seen is correct, is an improper subpoena,” Fuller told White. “Well, it’s not even a subpoena. It’s a letter that they issued to her on the DA’s letterhead.”

When Dieters responded, he did not appear to know the practice was improper. He insisted the document was a genuine “DA subpoena.”

“What I did serve her with was, in fact, a DA subpoena under Article 66 for her to appear today; and that is a subpoena,” he said.

Fuller knew the law. He pointed out that Article 66 subpoenas must be issued by a clerk and require a judge’s approval.

“That was a letter that they put on her door,” Fuller said. “So if she was not properly served, then certainly the State is out of line in requesting the Court to issue a material witness bond.”

White responded, “Well, I already did. I guess we should have waited on you.”

Fuller said, “You can always recall it, Judge.”

She didn’t. Asked why, White told The Lens that all she knew at the time was that Fuller had alleged the subpoena was improper.

“John basically says it’s an improper subpoena. I didn’t know what he meant by improper, and he didn’t go on,” White said in an interview. “Lawyers say things to me all day long. An invalid subpoena could mean anything,” including a genuine subpoena that had been served improperly.

In court, White asked Dieters for an update on whether the DA’s office had been able to bring the woman to court. Dieters told her the warrant had to be entered into the National Crime Information Center database before police could arrest her.

“Without the NCIC having that document, we can’t just grab her out of her house,” Dieters said.

Fuller interjected, saying the woman could sue the DA’s office for using an improper subpoena to arrest her.

“Are you representing her already?” White responded. “I thought you represented the defendant.”

Soon after, Dieters quoted from Article 66, reading aloud the requirements for a written request from the prosecutor and for a judge’s order to issue a subpoena.

White responded, “It doesn’t support your argument.”

She continued, saying the so-called “subpoena” at issue was a meaningless piece of paper.

“Wait, this is the first of you learning that that really doesn’t have any authority?” she said to Dieters. “That’s what happens when you’ve been in the building a long time versus a little time. That’s just a DA’s subpoena.”

She still did not recall the arrest warrant.

White said in an interview she did not know the notices sent by the DA’s office were falsely marked “subpoena” or that they falsely threatened criminal penalties.

“I thought it was just the DA’s letter with the letterhead,” she said. In the hearing, “I’m asking them if it’s an Article 66 or not. But I don’t know it’s a fake subpoena.”

Lawyer files motion to throw out fake subpoena

Soon after, the fake subpoena was again brought to White’s attention by the victim’s lawyer, Anthony Ibert.

He stepped forward and asked White to quash the fake subpoena and the arrest warrant. White asked him to wait while she dealt with the prosecutors, who were asking for the trial to be rescheduled.

White denied the request to reschedule the case because it had been delayed too many times. According to Fuller, it had been set for trial 13 times.

Dieters didn’t have a case without the victim’s testimony. So he decided to drop the charges against Cunningham, warning that he could later reopen the case.

At that point, White recalled the warrant against the woman.

“Now, I’m going to dismiss the material witness bond inasmuch as you’ve nol prossed the two charges,” she said, using a legal term referring to a decision to drop charges.

She then dismissed Ibert’s motion to throw out the fake subpoena and the arrest warrant, saying there was no longer a need for it.

White told The Lens she never took a good look at Ibert’s motion. As she said during the hearing at one point, the case was just one of dozens before her that day.

“I never saw a fake subpoena,” she said. “[Ibert] stands in court with the pleading, and he tells me later that if I would have looked at it, I would have seen that it was a fake subpoena.”

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