Criminal Justice
 

Orleans Parish prosecutors’ use of misleading ‘DA subpoenas’ goes back about 20 years

Records that have recently come to light confirm that Orleans Parish prosecutors sent misleading “DA subpoenas” for years before Leon Cannizzaro became district attorney, but they raise questions about when the documents were altered to look even more like genuine court documents.

Unlike the version used under Cannizzaro, the notices reviewed by The Lens in an 18-year-old attempted murder and armed robbery case did not say “SUBPOENA” at the top. Nor did they threaten jail time.

But they looked like real subpoenas and used similar language. Several contained handwritten notes that falsely referred to the document as a “subpoena.”

“Please contact me upon receipt of this subpoena,” then-prosecutor Karen Herman wrote on several DA subpoenas issued in 1999.

Herman is now a criminal court judge. She didn’t respond to requests for comment.

“These documents,” said Richard Bourke, an appeals lawyer in the 1999 case reviewed by The Lens, “were deliberately calculated to mislead witnesses, to believe they were issued under court authority, and required the witness to appear.”

Former District Attorney Harry Connick Sr., however, said there’s a big difference between the notices his prosecutors sent and the ones that were in use until earlier this year under Cannizzaro.

State law allows prosecutors to subpoenas witnesses for private interviews, but they must ask a judge for permission.

In some cases — it’s unclear how often — New Orleans prosecutors skipped that step and delivered their own documents that appeared to be authentic court orders. A spokesman for Cannizzaro said they looked so formal because uncooperative witnesses would ignore a simple letter.

But defense attorneys and legal experts have said the notices violated attorneys’ ethical rules and may have been illegal.

The DA’s office immediately halted the practice when it was revealed. Cannizzaro called it “improper.”

Now the state Office of Disciplinary Counsel, which deals with ethical misconduct by lawyers, is investigating.

Connick says DA subpoenas were ‘accepted practice’

In defending the notices, Assistant District Attorney Chris Bowman said earlier this year that they had been used for decades before Cannizzaro took office.

Harry Connick, who served from 1973 to 2003, said in an interview that was true, calling it an “accepted practice by predecessors.”

Connick, who was Herman’s boss when she was a prosecutor, said he didn’t know how frequently the documents were used. In the case reviewed by The Lens, prosecutors sent 10 notices telling witnesses to come in for questioning.




Connick stressed the differences between the documents from his time and the ones used under Cannizzaro. He said he doesn’t believe the notices his prosecutors sent truly resembled court orders.

“The only thing that I can see is that Karen Herman added a note that said ‘subpoena,’” he said after reviewing the documents. “That’s not what those things were.”

The DA subpoenas from Connick’s era were similar to those used until this year by North Shore DA Warren Montgomery’s office and looked like genuine subpoenas in use at the time. They said “CRIMINAL DISTRICT COURT” at the top and declared, “YOU ARE HEREBY NOTIFIED to appear before the District Attorney in the Criminal District Court for the Parish of Orleans … to testify to the truth according to your knowledge.”

Montgomery stopped sending them because they looked too much like genuine subpoenas and could mislead people.

DA subpoenas modified to appear more like court orders

At some point, the documents in Orleans Parish were changed to include the word “SUBPOENA,” cite state law, and threaten jail time and fines if the recipient didn’t heed the order to come in for questioning.

Connick said those changes matter. “If it’s classified as a command from the court, I have a problem with that,” he said. “If it’s called a subpoena, I do.”

It’s unclear when the documents were changed, and why. Through a spokesman, Cannizzaro said he didn’t know when they were modified, and he wouldn’t say if it happened under his watch.

Cannizzaro said he wasn’t familiar with the “practices of the district attorney’s office nor the format of DA notices used between 2001 and 2009,” when he served as a judge in Criminal District Court and on the Fourth Circuit Court of Appeal. He also served as a prosecutor under Connick.

“It is not known to the current DA when or by whose authority the wording and format of the DA’s notices used by this office first began using the word ‘subpoena,’” Ken Daley, Cannizzaro’s spokesman, wrote in an email. “But under his authority the practice was halted eight months ago.”




Eddie Jordan served as Orleans Parish district attorney between Connick and Cannizzaro. He didn’t respond to a request for comment.

The day the DA’s office announced it would stop using the misleading notices, it implemented a version similar to the old version.

But that was rescinded two days later and replaced with a new form letter. It tells witnesses a prosecutor “must speak with you,” but it removes language like “notice to appear” and doesn’t order them to come and it doesn’t threaten penalties.

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About Charles Maldonado

Charles Maldonado covers the city of New Orleans and other local government bodies. He previously worked for Gambit, New Orleans’ alternative newsweekly, where he covered city hall, criminal justice and public health. Before moving to New Orleans, he covered state and local government for weekly papers in Nashville and Knoxville, Tenn.