Criminal Justice
 

DA’s office says it can’t be held responsible for sending fake subpoenas, jailing people for ignoring them

Orleans Parish District Attorney Leon Cannizzaro on Thursday asked a federal judge to dismiss a civil rights suit over his office’s use of fake subpoenas and arrest warrants for crime witnesses and victims.

The lawsuit was filed in October by the ACLU and the Civil Rights Corps on behalf of six crime victims and witnesses, as well as the victims advocacy group Silence is Violence.

Five of the plaintiffs received fake subpoenas, according to the suit; three were arrested for allegedly failing to cooperate with prosecutors. The suit alleges that prosecutors’ actions violated plaintiffs’ constitutional rights in a few different ways.

Matthew Paul represents Cannizzaro and nine assistant district attorneys named as defendants in the suit. He argues in his response that no harm ensued when plaintiffs received fake subpoenas but were not arrested.

And for cases in which a plaintiff was arrested — even when the arrest warrant was based on false information — prosecutors are immune from liability, Paul argues.

“This lawsuit alleges that District Attorney Leon Cannizzaro and nine Assistant District Attorneys, in their efforts to aggressively prosecute those who commit serious crimes in Orleans Parish—such as murder, child molestation, child pornography, and domestic violence—have violated the rights of six witnesses and one organization,” Paul wrote. “All of these claims are fatally flawed for multiple reasons.”

The Lens first reported on Orleans Parish prosecutors’ use of fake subpoenas, which they called “DA subpoenas,” in April. They used the documents to pressure witnesses to come in for private interviews at the DA’s office.

Prosecutors can force witnesses to attend such interviews, but state law requires them to first get approval from a judge. In the cases found by The Lens and plaintiffs’ attorneys, that did not happen. The “subpoenas” were not real subpoenas.

The day The Lens published its story, Cannizzaro’s office announced it would stop using the misleading notices.

The civil rights groups allege the DA’s office violated plaintiffs’ free speech rights by using hardball tactics — including phony subpoenas — in retaliation for their refusal to speak to prosecutors. The DA’s office argues that refusing to speak to prosecutors is not a constitutionally protected activity.

The fake subpoenas themselves, which threatened arrest if recipients didn’t obey them, amounted to unconstitutional seizures, the plaintiffs’ lawyers argue. Three plaintiffs received fake subpoenas but weren’t arrested for failing to obey them.

The suit raises other cases in which prosecutors allegedly lied, omitted information and offered weak justifications to judges in order to arrest witnesses. Those were also unlawful seizures, the civil rights groups argue.

But Paul argues that the DA’s office and its employees are immune from liability for actions undertaken in the course of its judicial duties, a well-established legal doctrine called absolute prosecutorial immunity. The fake subpoenas are covered by that, he argues, because they were used to help prosecutors prepare for trial.

For actions that aren’t covered by absolute immunity, Paul argues, prosecutors enjoy qualified immunity. To overcome that defense, the plaintiffs would have to show that prosecutors violated their rights and knew, or should have known, they were breaking the law.

Cannizzaro’s response also says many of the allegations in the suit are past a one-year statute of limitations for federal civil rights claims.

Three of the plaintiffs in the case — Renata Singleton, Marc Mitchell and Lazonia Baham — were arrested for allegedly failing to cooperate with prosecutors, according to the lawsuit.

Singleton and Baham received fake subpoenas, according to the lawsuit. In Singleton’s case, the complaint says, prosecutor Arthur Mitchell misled a judge by simply calling the documents “subpoenas” when he asked for an arrest warrant.

Singleton spent five days in jail for allegedly failing to cooperate in a domestic dispute case against her boyfriend, who had damaged her phone during an argument, according to the lawsuit. Her bond was initially set at $100,000, which she could not afford. She was released after it was reduced to $5,000.

According to the defendants’ response, prosecutors are immune from being sued for allegedly false statements in applications for these types of arrest warrants.

Paul doesn’t defend or explain prosecutors’ use of fake subpoenas, but he does argue no one was harmed simply by receiving them. He notes that three of the named plaintiffs — Tiffany LaCroix, Fayona Bailey and “Jane Doe,” an unnamed victim of alleged child molestation — didn’t obey them and were not arrested.

Simply being threatened with arrest doesn’t violate someone’s civil rights, he argues.

“Receiving an allegedly fraudulent subpoena that threatens fines or imprisonment if the recipient does not appear, without more, does not give rise to a constitutionally adequately ‘injury,’” the response says. “Notably, neither Ms. Doe, Ms. Bailey, nor Ms. LaCroix felt sufficiently ‘chilled’ or threatened to actually comply with the subpoenas.”

All three of them, however, hired lawyers who objected to the DA’s actions, as The Lens has previously reported. Since they were witnesses, not defendants facing prison time, they were not legally entitled to counsel and had to hire private attorneys.

LaCroix and Bailey’s lawyer, Anthony Ibert, argued that the “DA subpoenas” were not properly issued. Only then did prosecutors drop them.

In Doe’s case, prosecutor Iain Dover sought and received a legitimate subpoena after her lawyer, Louisa Pensanti, pushed back against the phony “DA subpoena.”

The lawsuit also alleges the DA’s office violated state laws, including one against fraud.

The fraud allegation falls flat because none of the plaintiffs actually obeyed the fake subpoenas, according to Paul.

“Thus, even assuming for the sake of argument that the subpoenas included statements that were intentionally deceptive,” he argues, “the Plaintiffs clearly sustained no injuries in reliance on the truthfulness of such statements.”

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