Lawyers for a man serving a 20-year sentence for attempted second-degree murder are seeking a new trial, arguing that Orleans Parish prosecutors used a fake subpoena to coerce the victim into talking to police.
The victim, Charles Bingham, testified at Freddie Johnson’s trial in 2016 that he didn’t know who had shot him. Prosecutors brought up a statement he had made to police in which he said Johnson did it.
Bingham made that statement in a meeting that stemmed from a phony subpoena, wrote Johnson’s lawyers in a motion filed last month. The lawyers, Cormac Boyle and Shanita Farris, accuse prosecutors of withholding evidence favorable to the defense, which they’re required to disclose.
Until April, Orleans Parish prosecutors sent fake subpoenas to reluctant witnesses, ordering them to come to the DA’s office for questioning.
Under state law, prosecutors can subpoena a witness to appear for a private interview, but they must get a judge’s approval. In some cases — it’s unclear how often — New Orleans prosecutors skipped that step and delivered their own documents that appeared to be authentic subpoenas. The documents threatened jail and fines if people ignored them.
“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,” Assistant District Attorney Chris Bowman said earlier this year. “That is why that looks as formal as it does.”
The DA’s office stopped the practice the day The Lens reported that legal experts and defense attorneys said it was unethical and perhaps illegal. District attorneys in Jefferson Parish and on the North Shore delivered similarly misleading notices; they too immediately halted their use.
According to the defense attorneys’ filing, Bingham testified during the trial that someone, whom he believed to be a prosecutor, called him and ordered him to come to the DA’s office under the threat of arrest. He said he complied.
Based on that testimony and The Lens’ reporting on fake subpoenas, Boyle and Farris asked the DA’s office in September to provide information regarding any threats made against people involved in the case.
It’s the first case The Lens has learned of in which a previously undisclosed fake subpoena has become part of an ongoing criminal case.
The DA’s office declined an interview request.
One of the fake subpoenas documented in The Lens’ initial story is part of the record in Cardell Hayes’ appeal of his manslaughter conviction for killing Saints player Will Smith.
In Johnson’s case, the so-called “DA subpoenas” ordered Bingham and Watson to come to the DA’s office on July 25, 2014. The documents were signed by Assistant District Attorney Louis Russo.
According to the filing by the defense attorneys, Watson apparently wasn’t served with his fake subpoena. Bingham was; he signed it.
A week later, prosecutors arranged a meeting at Bingham’s house between him and New Orleans police detective John Waterman, according to the filing.
Waterman testified in a 2015 pretrial hearing that he couldn’t find Bingham “or get in contact with him until the DA’s office was able to,” according to the filing.
It was at that meeting that Bingham identified Johnson as the gunman. Prosecutors used that statement to impugn his trial testimony, in which he claimed he didn’t know who had shot him, Johnson’s lawyers wrote.
They argue in their filing that if Johnson’s lawyers during the trial had known about the fake subpoena, they would have been able to use it to keep prosecutors from bringing the statement into evidence.
Because Bingham was under a false threat of arrest, Boyle and Farris argue, he would have believed he had no choice but to talk to police or prosecutors. That makes his statement “both involuntary and unreliable, as well as the fruit of an illegal seizure,” they wrote.
That’s similar to an argument attorneys for the ACLU and the Civil Rights Corps make in a federal lawsuit against Cannizzaro and 10 of his prosecutors. Five of the six people named as plaintiffs were allegedly served with fake subpoenas.
That suit identifies 10 cases in which prosecutors obtained arrest warrants against witnesses and victims because they ignored fake subpoenas. Six of them, including one of the plaintiffs, were jailed. The plaintiffs contend the false threats of arrest, and the arrests themselves, constitute unlawful seizures.
Even if defense lawyers couldn’t get Bingham’s statement suppressed, the jury should have heard about his fake subpoena, Johnson’s lawyers argue.
“Had this information been disclosed and presented to the jury, a reasonable juror would have wondered whether these subpoenas affected the truthfulness of Mr. Bingham’s out-of-court statement and identification,” Boyle and Farris wrote.
The defense was unaware of other key facts at the trial, according to the filing. Under the law, prosecutors have to disclose evidence that may help the defendant’s case, called “Brady” material. The Orleans Parish District Attorney’s office has been accused of failing to disclose such evidence, particularly under former DA Harry Connick Sr.
Watson first told police that Johnson had shot Bingham in Central City in June 2014. He also testified at trial, though the filing doesn’t describe what he said.
Watson faced possible criminal charges when he spoke with police and testified at the trial, according to Johnson’s lawyers. Prosecutors did not disclose that to the defense.
Johnson’s lawyers also suspect Watson was a paid confidential informant for the police. In a previous filing, he asked the New Orleans Police Department if he was; the agency wouldn’t say one way or another.
A hearing in the case is set for Jan. 18.