Criminal District Court Judge Byron Williams can’t remember whether he used fake subpoenas when he worked as a prosecutor, he said Monday in a hearing regarding an attempted murder conviction.
Defense attorneys are seeking a new trial in part because the victim identified the defendant as the shooter after receiving a fake subpoena. If Williams used those documents himself, they argued in a court filing, he may not be able to impartially consider their request.
Williams worked in the Orleans Parish District Attorney’s office under DA Eddie Jordan, from 2003 to 2008.
“I don’t know what you’re talking about,” Williams said in the hearing. “What was that, 2003? I can’t remember what I ate for breakfast yesterday.”
If he can’t say for sure, responded defense attorney Cormac Boyle, he and attorney Shanita Farris may file a motion for recusal. Williams said he would likely deny that motion.
The lawyers represent Freddie Johnson, who was convicted of second-degree attempted murder in 2016. They argue Johnson deserves a new trial because the DA’s office failed to disclose evidence that was favorable to the defense.
That evidence includes two fake subpoenas, at least one of which was sent to Johnson’s shooting victim, Charles Bingham, in 2014.
The so-called “DA subpoena,” signed by Assistant District Attorney Louis Russo, ordered Bingham to appear for a private meeting at the DA’s office. The document was marked “SUBPOENA” and threatened fines and jail if he did not comply. But it was not authorized by a court, so it was invalid.
DA Leon Cannizzaro halted the use of those documents in April, the same day The Lens published a story raising questions about whether they crossed ethical and legal boundaries.
Since then, his office has faced four lawsuits — including a federal civil rights suit and a public records suit filed by The Lens — related to the practice. The state Office of Disciplinary Counsel, which investigates ethical violations by lawyers, has opened an investigation into the phony documents.
In November, the DA’s office disclosed the fake subpoenas in Johnson’s case. Bingham signed his when he got it. The other, addressed to another key witness for the prosecution, does not appear to have been served.
Russo had at least one meeting at Bingham’s house on July 22, 2014, the day Bingham signed the fake subpoena. According to Farris and Boyle, the DA’s office then arranged a meeting between Bingham and a New Orleans Police Department detective, where Bingham identified Johnson as the shooter.
But at the trial, Bingham testified that he couldn’t remember who had shot him. Prosecutors showed jurors his statement to the detective to argue he was lying.
Farris and Boyle say that if Johnson’s trial lawyers had known Bingham was under a false threat of arrest when he talked to police, they could have tried to prevent prosecutors from introducing the statement.
Last month, Farris and Boyle filed a motion asking Williams to disclose whether he had used “DA subpoenas,” instructed others to use them, or knew about them. If so, the lawyers said, that may be grounds for Williams to recuse himself from the case.
The use of fake or misleading DA subpoenas predated Williams’ time as prosecutor by at least four years. At least one other sitting judge, Karen Herman, used them while working for the DA’s office.
Williams also denied a defense request for notes from the July 2014 meeting between Bingham, Russo and David Benelli, an investigator for the DA’s office.
Assistant District Attorney David Pipes provided the notes to the judge, who reviewed them and said he found nothing that would be helpful to Johnson’s defense. Bingham’s statement to the DA’s office was consistent with the one he gave to police, Williams said.
Boyle objected, saying he had reason to believe that wasn’t the only meeting between Bingham and the DA’s office. “We believe there were as many as five meetings,” Boyle said.
Pipes said he had not found notes from any other meeting.
“They can only give you what they have,” Williams said.