Lawyers for a man seeking a retrial on a second-degree murder conviction have asked the judge in the case, Byron C. Williams, to say whether he used fake subpoenas during his five years as an Orleans Parish prosecutor.
Freddie Johnson’s lawyers recently learned that an assistant district attorney signed a fake subpoena in 2014 and had it delivered to the man he was later convicted of shooting, Charles Bingham.
The so-called “DA subpoena,” like other recent ones identified by The Lens, ordered Bingham to appear for a private meeting at the DA’s office and threatened arrest and fines if he didn’t. But the document had not been authorized by a judge or issued by the court clerk, so it was invalid.
The DA’s office used these notices to pressure uncooperative witnesses into talking. DA Leon Cannizzaro halted the practice, which he said was “improper,” in April after The Lens raised legal and ethical questions about their use.
Johnson’s lawyers argue in their motion that if the judge used similarly misleading notices when he was a prosecutor, that could be a reason for him to recuse himself from the case.
A week after the fake subpoena was delivered to the shooting victim, prosecutors arranged a meeting between him and a New Orleans police detective, according to the filing by defense lawyers Cormac Boyle and Shanita Farris.
“It was at that meeting that Bingham identified Johnson as the gunman,” they wrote.
The detective testified in a 2015 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.
When Bingham took the stand at Johnson’s trial in 2016, according to Farris and Boyle, he testified that he didn’t know who had shot him. Prosecutors countered his testimony with his statement to police identifying Johnson.
Bingham also testified that someone from the DA’s office threatened him with arrest if he didn’t talk to prosecutors, according to court records.
Johnson’s trial lawyers didn’t know about the fake subpoena during the trial, according to Farris and Boyle. If they had known, they could have used it to try to keep prosecutors from bringing up the police statement in the trial.
A jury convicted Johnson, and he was sentenced to 20 years in prison.
Johnson’s lawyers are asking for a new trial based on prosecutors’ failure to disclose the fake subpoena, as well as other information that may have been favorable to the defense. A hearing is set for Jan. 18.
Last month, they filed the motion questioning whether Williams can impartially consider the fake subpoena issue.
Orleans Parish prosecutors’ use of DA subpoenas, as they called them, went on for decades — at least since the late 1990s. In a 1999 case, prosecutors used them 10 times.
Among the prosecutors whose names appeared on the documents in that case was Karen Herman, who is now a Criminal District Court judge. Lawyers for the defendant in that case objected to the practice twice.
Unlike recent ones, the DA subpoenas used in the 1999 case did not say “subpoena” or threaten criminal penalties for failure to obey. They were similar to documents used until earlier this year by North Shore DA Warren Montgomery’s office. He discontinued the practice, saying the documents could be viewed as court orders.
Williams worked as a prosecutor from 2003 to 2008, under District Attorney Eddie Jordan. Farris and Boyle ask Williams in their filing if he, too, sent DA subpoenas to witnesses.
“If your Honor, as a member of the Orleans District Attorney’s office, engaged in the same improper conduct” — or if he instructed others to send them or was even aware of the practice — “then Mr. Johnson believes that may be a reason for concern and possibly recusal,” the defense lawyers argue.
Participating in the practice or knowing about it could create the appearance of bias, which could be grounds for his recusal, Farris and Boyle argue.
Through an assistant, Williams declined comment for this story because it is about an ongoing case. Boyle also declined to comment.
Attorney Richard Bourke, who worked on the 1999 case in which prosecutors used DA subpoenas, told The Lens that all judges who worked as prosecutors should say publicly whether they used them. If so, he said they should recuse themselves from cases in which the documents are at issue.
Farris and Boyle also ask the DA’s office to submit information about its use of the fake subpoena in the Johnson case, including the names of any DA employee who threatened Bingham and notes from any meetings he may have had with prosecutors.
A hearing on the request to Williams and the additional information on the fake subpoena is scheduled for Monday.