In defending the use of fake subpoenas that threatened fines and jail, Orleans Parish District Attorney Leon Cannizzaro said he doesn’t know of anyone who’s been locked up for ignoring one.
That’s not for lack of trying. In January, a prosecutor sought to arrest a victim of alleged domestic violence in part because she had failed to obey a fake subpoena.
A judge issued the arrest warrant, but she soon recalled it after the DA’s office decided to drop charges against the victim’s ex-boyfriend.
In an interview, Cannizzaro acknowledged his office issued the fake subpoena and the prosecutor cited it when seeking the arrest warrant.
He defended those actions, noting that the victim had gone to police twice but had stopped cooperating with prosecutors.
“The law is designed so that, if you make a complaint, there should be some responsibility on your part to follow up with that complaint,” Cannizzaro said. “This criminal justice process is not like an invitation to a party, where you have the right to decline to show up.”
An expert in prosecutorial misconduct has said it’s improper for prosecutors to mislead people by sending them fake subpoenas.
Obtaining an arrest warrant based partly on a fake subpoena “raises the level of misconduct,” said Bennett Gershman, a Pace University law professor.
“Now there are real consequences,” he said. “That’s a huge difference. You’re no longer in this sort of hypothetical realm of no harm, no foul.”
The day The Lens reported on the use of fake subpoenas, Cannizzaro’s office announced it would stop.
Those agencies also said they’d stop immediately.
The notices sent by Cannizzaro’s office threatened fines and imprisonment if people didn’t show up for questioning. But they were not authorized by a judge or issued by the Clerk of Court, as the law requires.
Those were empty threats — or so it appeared until we saw an arrest warrant in a file at the courthouse.
New Orleans cop charged with domestic violence
James Cunningham, an officer with the New Orleans Police Department, was arrested twice in 2015 on allegations of domestic violence.
In January 2015, Cunningham’s girlfriend said he kicked in her door and injured her as she fought him off, according to a police report. In August 2015, he allegedly grabbed her and stopped her from leaving her house, according to NOLA.com/The Times-Picayune.
Cunningham was charged with home invasion, domestic abuse battery and false imprisonment. The NOPD fired him in 2016.
In January of this year, a prosecutor was preparing to take the cases to trial after several delays. But the victim wasn’t cooperating.
She didn’t respond to a subpoena to appear at a trial on Jan. 25, according to a court filing by Assistant District Attorney William Dieters.
The victim declined to comment for this story. The Lens has decided not to identify her because of the nature of the charges.
The clerk’s office had issued a subpoena — a real one — to the victim for that trial. It was delivered by a sheriff’s deputy the day after Christmas.
Cannizzaro acknowledged that. He said deputies typically try several times to serve subpoenas properly before they leave them at someone’s door, though he’s not sure if that happened in this case.
Phil Stelly, spokesman for the Orleans Parish Sheriff’s Office, said in a written statement that deputies “make every effort” to serve court papers to the people named or someone who lives with them.
DA’s office delivers fake subpoena
The trial was rescheduled for Jan. 27. In the meantime, according to Dieters, a victim counselor with the DA’s office called the woman several times. She didn’t answer.
So the DA’s office tried another subpoena.
“The Assistant District Attorney attempted to serve the victim with a subpoena through an investigator,” Dieters wrote in the court filing requesting the victim’s arrest. “No one answered at the address provided to the District Attorney’s Office.”
That document summoning her on Jan. 27 is identical to the fake subpoenas The Lens has found in other cases.
The victim received it Jan. 26, according to a court filing by the victim’s attorney, Anthony Ibert.
Like other fake subpoenas sent by the Orleans DA’s office, the notice threatened punishment if it was ignored and purported to have been authorized by a specific part of state law.
Cannizzaro’s office would have been authorized to deliver a real subpoena ordering the victim to appear at the rescheduled trial.
Cannizzaro said Dieters decided to use the fake one — the office calls them “DA subpoenas” — because he needed the victim to come to the DA’s office to prepare her first.
Jan. 25 trial
Real subpoena, served improperly, ordered victim to court
Jan. 27 trial
Fake subpoena ordered her to come to DA’s office
Dieters asked Criminal District Court Judge Laurie White to issue an arrest warrant for the victim with a $50,000 bond.
That’s called a material witness bond. The DA’s office can use them to jail reluctant witnesses until they testify.
To get one, a prosecutor has to demonstrate that the witness is essential to a case and that it may be too difficult to get the person to show up in court with a subpoena.
“Her testimony about what occurred is essential for the State to meet its burden,” Dieters wrote. ”The State has reason to fear [the victim] will not appear in Court pursuant to a subpoena.”
Cannizzaro’s office has been criticized for jailing witnesses and victims. In April, the watchdog group Court Watch NOLA identified 30 arrest warrants sought by his office for victims and witnesses in 2016.
Cannizzaro said his office does that as a last resort.
In this case, he said, Cunningham had allegedly attacked the victim twice. Cunningham was a police officer, and Cannizzaro said the prosecutor didn’t want Cunningham to intimidate the woman into abandoning her case.
If another incident had occurred, “I want to say that we did everything that we could to prevent this person from going out and hurting her a third or subsequent time,” Cannizzaro said. “We are attempting to make sure that we can keep the violent offender from hurting the victim again or hurting some other innocent person.”
Dieters’ request to arrest the victim did not offer the subpoena itself as evidence. Instead, he provided a printout from the court’s electronic witness roster, which should only include records of genuine subpoenas.
According to a court filing by Ibert, the victim’s lawyer, the victim only received a fake subpoena for Jan. 27.
The computer system has an entry for a Jan. 27 subpoena. But the court clerk’s office has no corresponding record of a genuine subpoena or a return, which is what a deputy or an investigator brings back to the clerk’s office to demonstrate a subpoena was served.
Clerk of Criminal Court Arthur Morrell said the DA’s office should have records of the subpoena and the return. The Lens has submitted a public records request for them.
Judge issues arrest warrant, then recalls it
White initially granted Dieters’ request, signing an order to arrest the victim.
Cannizzaro said that according to Dieters, White knew the “subpoena” cited in his motion was invalid. But she granted the order, Cannizzaro said, because Dieters described the repeated efforts to reach the victim.
“The judge made a statement on the record that the DA subpoena, it’s not a valid subpoena. It’s not an Article 66 subpoena,” Cannizzaro said, referring to the part of state law that spells out how prosecutors can force people to come talk to them.
White denied that.
“Of course I would never issue a warrant for any victim based on a fake subpoena,” she said in an interview.
The Lens was not immediately able to obtain a transcript of the hearing.
After that, Dieters asked to reschedule the case. White refused, saying it had been delayed too many times, according to a clerk’s notes in the court file.
So the DA’s office decided to drop the charges against Cunningham, and White recalled the order granting the arrest warrant, according to the clerk’s notes.
The judge then considered Ibert’s motion to throw out the fake subpoena and the arrest warrant for his client. But the issue was moot because she had already recalled the warrant.
Lawyer says victim had heeded prior subpoenas
Ibert’s motion included a copy of the fake subpoena and described why it was invalid.
He wrote that his client had received “what appears to be an Art. 66 subpoena” from a neighbor who lives in the same apartment building.
Under Article 66 of the Code of Criminal Procedure, a prosecutor must ask a judge in writing and explain why he needs to speak with the person. If the judge approves the request, the Clerk of Court issues the subpoena.
None of that happened, Ibert wrote.
Moreover, he wrote, his client never received anything telling her to appear for a trial on Jan. 27.
The victim had appeared in court for previously scheduled trials, Ibert wrote. “Clearly, her repeated presence at court in response to a properly issued and served subpoena demonstrates her willingness to comply with the law.”
He declined comment for this story because he didn’t have permission from his client to discuss the case.
The woman had told the DA’s office that she didn’t want to pursue charges against Cunningham, Ibert wrote.
“She has been told that she will be jailed if she does not cooperate without being told what entails cooperation,” he wrote.
‘No legal consequences’ for fake subpoenas?
“There are no legal consequences for the person who is the subject of that notice if they do not show up,” he said.
Gershman, the expert in prosecutorial misconduct, took issue with that.Dieters threatened “real consequences that can have a huge impact on a person’s liberty, their reputation.”
—Bennett Gershman, Pace University
Until he saw this court file, Gershman said, it appeared prosecutors were just trying to bully witnesses.
“Now they’re asking a judge to issue an arrest warrant based in part on a fake subpoena,” he said.
Gershman said Dieters threatened “real consequences that can have a huge impact on a person’s liberty, their reputation.”
Loyola University Law Professor Dane Ciolino, a legal ethics expert, said prosecutors seeking a material witness bond can give any reason for believing the person won’t show up in court. If a witness ignores a subpoena, doesn’t answer phone calls from the DA’s office or simply says he won’t show up, that’s all relevant.
“It’s really up to the judge to evaluate whether that’s sufficient evidence,” he said.
But everything in the motion has to be true. Referring to a fake subpoena as a “subpoena” in a motion is not OK, he said.
“First of all, it’s not a subpoena,” he said. “If they’ve described it as a subpoena and it’s not, that’s not proper.”
Asked about the wording his prosecutor used, Cannizzaro cited the Latin definition of the word subpoena. Literally, it means “under penalty.”
“Essentially,” he said, “the term says, listen, if you don’t respond, there may be a consequence for your failure to respond.”