An Orleans Parish judge said the District Attorney’s Office must “eat the elephant one bite at a time” and start turning over copies of fake subpoenas sought by The Lens.
Civil District Court Judge Kern Reese gave the DA’s office until the end of November to produce the first batch of what it calls “DA subpoenas” — documents that purported to be subpoenas but were never approved by a judge.
Reese’s ruling requires the DA’s office to grant access to fake subpoenas for closed cases, plus those in cases that prosecutors declined to pursue charges. It covers documents issued over a 16-month period starting in January 2016. It’s unclear how many cases fall into that category.
Lens attorney Scott Sternberg, of Sternberg, Naccari & White, said he was thrilled with Reese’s ruling.
“We think he correctly determined that the district attorney did not do enough to try to find these DA subpoenas,” he said. “Given the immense public interest surrounding this case … we’re really hoping we can get some cooperation and production from the district attorney’s office without having to appeal the case.”
Lens reporter Charles Maldonado testified Monday that he submitted a public records request for “DA subpoenas” sent between Jan. 1, 2016, and April 27, 2017.
He asked for the documents the day after The Lens published a story revealing that prosecutors working under District Attorney Leon Cannizzaro used the misleading documents to pressure witnesses to talk to them.
The notices said “SUBPOENA” at the top, cited state law and threatened jail or fines if the recipient ignored them. But they were legally worthless.
Legal experts and defense attorneys called the practice unethical and possibly illegal. The DA’s office immediately halted the practice.
Last week, a civil rights lawsuit alleged that Orleans Parish prosecutors violated people’s civil rights by arresting people based on their refusal to obey fake subpoenas.
The DA’s office denied Maldonado’s request for the documents. Finding them would require someone to look through thousands of cases, which would be “unreasonably burdensome,” Assistant District Attorney Donna Andrieu wrote.
Maldonado followed up with other requests, including one for records that would reflect when fake subpoenas were used.
Reese said it was his duty to balance public access to government records with the weight of the request. He said he empathized with the difficulty of responding to requests for files kept on paper and knew well what it’s like to work for a public agency with a limited budget..
“On the other side of the equation, a public agency has the responsibility to be accountable for how it executes its duties,” he said.
“As to the open cases, I have a little apprehension,” Reese said, noting an exception in records law that excludes prosecutors’ internal cases files while litigation is pending.
Sternberg argued that if the DA’s office had followed the law in obtaining these subpoenas, the court clerk’s office would have those records.
State law allows prosecutors to obtain subpoenas ordering witnesses to meet with them, but prosecutors must ask a judge in writing. If the judge agrees, the clerk of court will issue the subpoena.
The DA’s office, however, simply filled out documents purporting to be subpoenas and handed them to witnesses.
Assistant District Attorney David Pipes said the office rarely used the documents. They were usually given to victims or witnesses if they needed a note to excuse their absence from school or work, and to summon police officers to meet with prosecutors in “charging conferences.”
The DA’s office didn’t necessarily keep copies of DA subpoenas, he said, but if a witness was served with one, a copy would be in the case file.
During a six-month period, his job was to review files that were set to be closed. “I probably closed out 6,000 files. I saw maybe seven cases that had what looked like this,” he said, referring to an exhibit showing an example of a DA subpoena.
At one point in the trial, Edward McAuliffe, an attorney for Cannizzaro, asked Maldonado to explain his discontent with the denial to his initial public records request.
“What particularly about that response did you find lacking?” McAuliffe asked.
“I don’t think difficulty in finding documents is something that gets you out of responding to a public records request,” Maldonado said.
Assistant District Attorney Donna Andrieu said Maldonado’s requests “did not seek files in a way the D.A.’s office maintained files … They were very broad.”
The office organizes its files by case, she said. “We don’t have a filing cabinet full of DA subpoenas — or any other document.”
State public records law requires custodians to segregate records if they contain something subject to an exception to the law. Andrieu said she reviews files for privileged documents but not for the documents sought in a request.
“The public records law does not require me to go into a file to find a document,” she said. “We do not provide research or do investigations for him,” referring to Maldonado, or anyone else who seeks records from the office.
Lens attorney Scott Sternberg said the office’s failure to check with Pipes and other prosecutors, including its failure to send them an email asking if they had issued any DA subpoenas, showed they put very little effort into fulfilling Maldonado’s request.
Pipes claimed that an exhaustive search would take thousands of hours and could only be done through a manual review of all case files.
But he did remember seeing some DA subpoenas in files. During a six-month period, “I was essentially solely responsible for closing out files,” he said. He reviewed about 6,000 files.
“I saw maybe seven cases that had what looked like this,” he said, referring to an exhibit showing a fake subpoena.
A lawyer for the DA’s office said he had no comment on the judge’s ruling, and a spokesman for the office did not immediately respond to comment.