Criminal Justice
 

Deal ends scrutiny of fake subpoenas in attempted murder case

An attempt to litigate the Orleans Parish District Attorney’s use of fake subpoenas came to an end Thursday when the defendant took a deal shortening his 20-year-sentence for attempted murder.

Assistant District Attorney David Pipes also agreed to drop a request for a sentencing enhancement that could have added decades to Freddie Johnson’s prison term.

The victim in the case received a fake subpoena before he identified Johnson as the man who had shot him, but that wasn’t disclosed to defense attorneys before the 2016 trial. Johnson’s lawyers, who were seeking a new trial, said it was one of several serious errors in the case.

Cormac Boyle, one of those lawyers, said he couldn’t advise Johnson to keep fighting for a new trial with this deal on the table — and with the threat of a longer sentence hanging over him.

“He was looking at the possibility of life without parole,” Boyle said.

Like other so-called “DA subpoenas,” the notices used in Johnson’s case ordered witnesses to show up for private meetings with prosecutors. The notices were marked “SUBPOENA” and threatened jail and fines if the recipient didn’t heed them.

But they were fake. The Orleans Parish DA’s office halted their use the day The Lens revealed the practice.

Louisiana law allows prosecutors to compel witnesses into private meetings using subpoenas, called Article 66 subpoenas for the part of state law that authorizes them. But prosecutors have to get a judge to sign off on them. In some cases — the DA’s office hasn’t said how often — prosecutors skipped the judge and sent their own notices.

Under the deal, Johnson agreed to drop his petition for a new trial and agreed not to pursue an appeal. In return, the DA’s office agreed to shave two years off his sentence and drop a request to add a habitual offender enhancement.

The DA’s office filed a “multiple bill” seeking the sentencing enhancement after Johnson’s conviction. Boyle unsuccessfully objected to the move, citing Johnson’s age — he’s 59 — as well as health problems and the fact that the jury’s guilty verdict wasn’t unanimous.

One of the 12 jurors found Johnson not guilty. Louisiana is one of only two states that allow non-unanimous jury verdicts in felony cases.

Boyle also brought up DA Leon Cannizzaro’s disproportionate use of multiple bills compared to the rest of the state, which means someone convicted in New Orleans is more likely to receive a long sentence than someone with a similar criminal history in another parish. Boyle argued that violates defendants’ constitutional right to equal protection under the law.

Critics argue that the DA’s office uses multiple bills to force plea deals. “You’re making a Hobson’s choice when you have an unnecessarily punitive system,” Boyle said.

Johnson had prior convictions in Orleans Parish, Jefferson Parish and Texas, all of which were for low-level drug offenses, according to Boyle and court records. Nevertheless, Johnson was eligible for a habitual offender sentence.

Boyle and co-counsel Shanita Farris filed for a new trial last year because of “significant legal errors in the trial,” Boyle said.

Among them: The DA’s office did not disclose that the other key witness, Terrance Watson — who initially identified Johnson as the shooter to police in 2014 — faced arrest warrants when he made the identification and when he testified at the trial.

Boyle and Farris suspected that Watson may have been a paid confidential informant, which the police department would not confirm or deny.

Based in part on The Lens’ reporting on fake subpoenas, Johnson’s lawyers asked the DA’s office in September to provide information regarding threats made against people involved in the case.

The DA’s office handed over two fake subpoenas dated July 2014, the month after Bingham was shot in Central City. One went to Bingham, one to Watson. They were signed by Assistant District Attorney Louis Russo.

Bingham signed his subpoena, showing that he got it on July 22, 2014. It’s not clear if the DA’s office was able to deliver the one to Watson.

According to a letter Bingham submitted in a court filing last month, Russo sent him the fake subpoena after he told police twice that he did not believe Johnson was the shooter.

After Bingham got the notice, he met with Russo, an investigator for the DA’s office and a New Orleans police detective. He identified Johnson as the shooter to the detective, who recorded his statement.

But Bingham backed off that identification in subsequent meetings. Bingham wrote in his letter that he was forced to meet with prosecutors several more times. They threatened him with arrest and insisted that Johnson was the person who shot him.

After Bingham was arrested and jailed in an attempted murder case — which was amended to domestic abuse battery — he wrote that he was pulled into the DA’s office four or five more times.

“Every time I told them I don’t know who shot me,” Bingham wrote.

At Johnson’s trial, Bingham testified that he didn’t know who had shot him. Prosecutors countered that with his taped statement to police.

Had the defense been aware of the fake subpoena, Boyle and Farris argued, they would have had a better chance of getting that statement thrown out.

Boyle and Farris also questioned the trial judge’s objectivity on the fake subpoena issue. Judge Byron Williams worked as an assistant district attorney from 2003 to 2008. The Lens has found evidence showing that “DA subpoenas” have been in use since at least the late 1990s.

Late last year, the lawyers asked Williams to disclose whether he had used the notices, authorized them or knew about them when he was a prosecutor. In January, Williams said he couldn’t remember.

Boyle and Farris asked him to recuse himself from the case. Before announcing the deal on Thursday, they withdrew that motion.

Boyle said he was disappointed that he wasn’t able to take the fake subpoena issue before an appeals court.

“Unfortunately, this had to come at the expense of him waiving his rights of having this fully adjudicated,” he said. “Because of the way the system is geared, there really is no opportunity for me to advise my client to go forward when his whole life is at stake.”

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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.