Editor’s note: This story has been updated with a report that the District Attorney’s Office has said the practice will end.
The notice Tiffany Lacroix received in November had “SUBPOENA” printed at the top, next to a logo of the Orleans Parish District Attorney’s Office. It ordered her to meet with a prosecutor to discuss the upcoming trial of Cardell Hayes, charged with murdering former Saints player Will Smith.
“A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE,” it declared.
But it wasn’t authorized by a judge. It wasn’t issued by the Clerk of Court, which sends out subpoenas. And Lacroix wouldn’t have gone to jail if she had ignored it. In other words, it was fake.
The notice came from District Attorney Leon Cannizzaro’s office. His prosecutors are using these fake subpoenas to pressure witnesses to talk to them — a tactic that defense lawyers and legal experts said is unethical, if not illegal.
“There’s no question this is improper,” said Pace University law professor Bennett Gershman, a former prosecutor in New York City and an expert in prosecutorial misconduct.
“Clearly, it’s unethical because the prosecutor is engaging in fraudulent conduct,” he said.
Colin Reingold, an attorney with Orleans Public Defenders, said the practice “borders on fraud or forgery, and certainly I see ethical problems with compelling someone to come in under false pretenses.”
Assistant District Attorney Chris Bowman, who serves as Cannizzaro’s spokesman, defended the use of the documents, which he called “notifications” or “notices.”
“The district attorney does not see any legal issues with respect to this policy,” he said.
Cannizzaro’s office deals with “an extraordinary number of cases,” he said, including many in which potentially crucial witnesses are reluctant to talk.
“Maybe in some places if you send a letter on the DA’s letterhead that says, ‘You need to come in and talk to us,’ … that is sufficient. It isn’t here,” he said. “That is why that looks as formal as it does.”
But Wednesday, after The Lens told Bowman that our story would report that legal experts say the practice could be illegal, The New Orleans Advocate reported that the DA’s office had announced it would end the practice. The Lens received no such announcement.
Bowman didn’t know how often these notices are used, but he said the practice predates Cannizzaro’s tenure by decades.
The Lens has found three recent cases in which witnesses received the so-called subpoenas. In two cases, people with ties to the defendant received them days before the trial. A lawyer told us about another instance, but we couldn’t confirm it.
“It’s no different than if we just put a letter out on our letterhead,” Bowman said.
There is one important difference. To the untrained eye, these appear to be legal documents, complete with the threat of arrest.
“It is inappropriate for the District Attorney’s Office to falsely suggest that this document is a ‘subpoena,’” said Dane Ciolino, a Loyola law professor and legal ethics expert, “and to suggest that disregard of the document can be punishable by fine or imprisonment.”
Subpoenas are used to compel someone to testify or produce evidence. They’re typically used for trials and hearings, and they’re issued by the clerk of court.
Louisiana law also allows district attorneys — with a judge’s authorization — to use subpoenas to force witnesses to be questioned outside court. A judge isn’t present at those meetings, and prosecutors can exclude anyone, except a witness’ attorney.
People who ignore a subpoena can be charged with contempt of court and arrested.
To subpoena someone for one of these private interviews, prosecutors have to submit a written application to a judge in which they present “reasonable grounds” to question the person. The judge decides whether to order the court clerk to issue the subpoena.
The point of court approval, Ciolino told The Lens, is to prevent “possible abuse” by the DA’s office.
In these cases, the District Attorney’s Office didn’t go to a judge. Instead, the office sent the notices itself.
Witnesses summoned to talk to prosecutors
After Lacroix got her fake subpoena, her lawyer Anthony Ibert asked a judge to quash it. As he noted in a court filing, the “subpoena” didn’t appear to have been issued by the clerk of court, as the law requires.
After Ibert objected, Bowman said, the DA’s office withdrew it and asked the judge to issue a subpoena for Lacroix to show up in court. Ibert initially refused to provide Lacroix’s address, Bowman said, but the judge insisted.
“These were witnesses; these were not people who were accused of criminal wrongdoing,” he said. “And they’re getting defense attorneys to come in and try to get them from going on the stand.”
He acknowledged it’s their right to do that.
Another client of Ibert’s, Fayona Bailey, received a fake subpoena in a different murder case earlier this year. Ibert objected then, too, and the District Attorney’s Office asked a judge for a real subpoena to show up in court.
Bowman confirmed that the District Attorney’s Office used an invalid subpoena in that case.
Thomas Frampton, a public defender, said it happened in one of his cases. Just days before his client was to be tried on a theft charge in early 2016, a character witness for the defendant got one of these notices.
The witness was Larry Bagneris, a longtime civil rights activist and director of the city’s Human Relations Commission.
Bagneris said he got a call from someone with the District Attorney’s Office. “I said, ‘I don’t think I should be talking to you,’” Bagneris said. “Two days later, I got a subpoena. Two gentlemen came to my office.”
Bagneris said the investigators who delivered the notice insisted he come to the DA’s office. Though he complained to the office about how he was treated, he complied. He said he was questioned about the details of the case.
No witness subpoena for Bagneris appears in the official online case summary. Frampton said he didn’t learn until after the defendant was acquitted that Bagneris had been called in to talk to prosecutors.
Until he was contacted by The Lens, Bagneris believed the subpoena was real and approved by the court.
Bowman said he didn’t have any information about this instance.
Bagneris was not called to testify at the trial. Even so, Gershman said contact between prosecutors and defense witnesses, without a judge’s authorization or the defense attorney’s knowledge, is potentially “fraught with coercion.”
“It’s very possible that this witness, after this meeting, might be scared to testify,” he said. “All of this is fraught with very, very dangerous consequences. For the system. For the defense. And maybe for the prosecutor if he’s caught violating” the Code of Criminal Procedure.
Do fake subpoenas cross an ethical line? A legal one?
Cannizzaro’s office has been accused of overly aggressive tactics. Prosecutors frequently use the state’s habitual offender law to secure long sentences, even for nonviolent crimes. They have charged witnesses with perjury if they recant their testimony.
And earlier this month, the watchdog group Court Watch NOLA found several cases in which the DA’s office obtained arrest warrants for victims of crimes because they did not cooperate with prosecutors.
New Orleans City Councilman and defense attorney Jason Williams said the use of fake witness subpoenas fits into a pattern of overzealous prosecution.
“I can only imagine how dangerous this could potentially be,” he said. “If older assistant district attorneys are encouraging younger, less experienced [assistant district attorneys] to do this, it creates a culture.”
Ibert said he thinks the fake subpoenas may be a type of forgery. The documents don’t include a judge’s name or signature. But Louisiana’s law on forgery includes “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.”
At the very least, Ibert said, the practice violates the rules of conduct for attorneys. One of those rules requires lawyers to be truthful when dealing with third parties such as witnesses and victims.
The fake subpoenas could violate that rule, he said, because “you’ve misrepresented yourself to a third party.”
Bowman responded, “You’re talking to criminal lawyers that do not want the district attorney to get witnesses to come into court. … Criminal lawyers who don’t want witnesses cooperating at all.”
Generally, he said, “I guess the question is, has anyone been fined and imprisoned? Which according to the stuff you’ve showed me so far, they absolutely have not been.”
Pete Adams, the director of the Louisiana District Attorneys Association, declined to comment on the practice.
Ibert, who served as an assistant district attorney under Harry Connick and Eddie Jordan, admitted they used a similar tactic. The office had “preprinted forms that said ‘subpoena,’” he said. “They were normally sent with a letter that said, please meet with me.”
Ibert said those documents did not, however, threaten jail or fines. He stopped using them after he was warned by a magistrate commissioner that they were likely illegal.
Williams said he believes the bar association will look into the matter. “At the end of the day, it’s a ruse.”
If a defense attorney did something similar, Williams said, “I guarantee you this DA would try to prosecute that defense attorney.”
This story was updated after publication to reflect the New Orleans Advocate’s report that the practice will end. (April 26, 2017)