District Attorney Leon Cannizzaro’s office has 20 days to give the ACLU of Louisiana records related to its use of fake subpoenas, a judge ruled in a hearing today.
That deadline covers only cases accepted by the DA’s office this year. It will have 15 days to produce records for each prior year, going back five years, ruled Orleans Parish Civil District Court Judge Nakisha Ervin-Knott.
The ACLU filed suit against Cannizzaro in May after the DA’s office denied a public records request related to prosecutors’ use of fake subpoenas. According to the lawsuit, the organization became aware of the practice when The Lens revealed it in April.
The DA’s office used the documents to pressure reluctant witnesses to meet with prosecutors. The documents were marked “SUBPOENA” and threatened fines and jail if witnesses didn’t obey them.
But they were invalid because they were never authorized by a judge, nor were they issued by the Clerk of Court.
Despite that, The Lens discovered one case in which a prosecutor used a fake subpoena to justify an arrest warrant for a victim of alleged domestic violence who had stopped cooperating with prosecutors.
Cannizzaro’s office announced that it would cease the use of fake subpoenas the same day The Lens published its first story. Defense lawyers and ethics experts said the fake subpoenas were misleading, unethical and possibly illegal.
It’s unclear how often they were used, but the practice apparently went on for years.
In early May, ACLU of Louisiana Executive Director Marjorie Esman requested the names and Bar Association numbers of all Orleans Parish prosecutors “who have ever authorized or sent documents titled, styled, or identified as subpoenas that were not authorized by a judge.”
A few days later, the DA’s office denied the request, saying it would be too difficult to find the records.
Assistant District Attorney Donna Andrieu wrote that the office does not maintain the records in a way that they could be found easily. Identifying them, she wrote, would mean “a review of literally thousands of closed files, a substantial number of which are stored off-site.”
Judge: ‘The public is entitled to the information’
That was essentially the argument Cannizzaro’s attorney David Fink made in court Tuesday. He told Ervin-Knott the DA’s office has no index of what is contained in case files. The DA’s office accepts between 15,000 and 20,000 cases per year, he said.
There is just one employee in Cannizzaro’s office who handles records full-time, Fink said. The office would have to divert prosecutors from their normal duties to review the files, he said.
Moreover, he said, the ACLU’s request wasn’t limited to particular years. The ACLU sought records for any prosecutor now employed by the office; some have been there for years, he said.
“We have requested that the petitioner narrow down the search so we’re not looking through 20 years of records,” Fink said. He asked that the ACLU identify particular cases.
“They don’t know that it exists until you provide the information to them that it exists,” Ervin-Knott responded. “The request is overbroad. In part it is overbroad because they don’t know the names of the cases.”
ACLU lawyer Bruce Hamilton told the judge his organization is aware of just a handful of cases identified by The Lens.
Ervin-Knott decided to narrow the scope of the DA’s search, but not as much as Fink asked. She ordered the office to first produce the records for cases it accepted in 2017 and then go back year-by-year for five years.
“For me, it’s a balancing test,” Ervin-Knott said. “The public is entitled to the information,” but she has to make sure the DA’s office doesn’t strain its resources trying to provide it.
Fink, however, said just providing the 2017 records would be a burden because it would require checking as many as 10,000 cases.
Ervin-Knott said she doesn’t believe they’ll need to review every single file to find references to the use of fake subpoenas.
“I don’t know what the internal system is. But it has to be some system .. that would point to what those records would be,” she said.
Hamilton suggested that at least some of the records could be identified electronically by searching prosecutors’ emails for references to the use of fake subpoenas.
In an interview after the hearing, Esman repeated that point.
“They at least have an obligation to search electronically for files kept in electronic format,” she said. She added that Cannizzaro’s office has given no indication that they have tried to do that.
Two other lawsuits seek similar records
The denial letter the ACLU received is similar to one The Lens received when we asked to see all fake subpoenas issued since the beginning of last year.
It’s also similar to a denial letter the DA’s office sent in 2015 to the MacArthur Justice Center in response to a request for subpoenas issued pursuant to Article 66 of the Louisiana Code of Criminal Procedure.
That part of state law allows prosecutors to force witnesses to come to private meetings — and sometimes provide evidence — without a defense attorney or a judge present.
The fake subpoenas sent by Cannizzaro’s office purported to be Article 66 subpoenas, but they weren’t authorized by a judge, as the law requires.
The MacArthur Center was not aware of the DA’s practice of sending fake Article 66 subpoenas at the time.
Esman said she was satisfied with Ervin-Knott’s ruling.
“I think she understands the public has a right to know,” Esman said. “We’ve already waited two months. Another few days is fine.”
The DA’s office could appeal the ruling. Assistant District Attorney Chris Bowman, Cannizzaro’s spokesman, said the office will review the written judgment before deciding what to do next.
This story was updated after publication to include additional details from the hearing and a comment from the DA’s office. (July 11, 2017)