Criminal Justice
 

Federal judge to decide whether fake subpoena suit will move forward

Following a hearing Wednesday morning, it’s now up to a federal judge to decide whether a sweeping civil rights suit against the Orleans Parish District Attorney’s Office — over prosecutors’ use of fake subpoenas and other hardball tactics — should be dismissed.

Judge Jane Triche Milazzo, who is presiding over the case, did not issue a ruling Wednesday on a motion filed by the District Attorney’s Office to dismiss the suit. But she said that the plaintiffs in the case will have to overcome a “tough hurdle” to prevail.

Wednesday marked the first court hearing since the ACLU and the Civil Rights Corps filed the suit last year. The suit alleges that the DA’s aggressive tactics — including the issuance of fake subpoenas and the jailing of witnesses and crime victims on allegedly false or misleading pretexts — violated the plaintiffs’ constitutional rights.

In a written statement after the hearing, DA Leon Cannizzaro’s spokesman called the suit “a calculated attack on the criminal justice system” and warned that, if successful, it will make the city less safe.

“It seeks to give essential witnesses the option of appearing at their leisure, or to simply disregard their civic duty to testify truthfully,” Daley said. “It would dislodge the underpinning of our justice system, escalate incidence of witness intimidation, and further endanger our crime-weary community.”

Lawyers for the DA’s office said during the hearing that the plaintiffs have not demonstrated that their clients’ rights were violated. Moreover, they argued that the prosecutors enjoy immunity — a well-established legal doctrine — for actions related to their jobs.

But Katie Chamblee-Ryan, an attorney for the Civil Rights Corps, emphasized that prosecutors’ allegedly unlawful practices were borne of policies that came directly from the top of the office: Cannizzaro and his chief lieutenants. Because these were systemic violations, supported by official policy, immunity doesn’t apply.

“One thing that the defendants didn’t mention today … is that this case is about unlawful policies,” she said. “That applies to the office.” The DA’s office, as a government body, does not enjoy immunity, she added.

By filing the lawsuit against Cannizzaro in his official capacity as DA, they’ve made the case against the office itself. And the plaintiffs have some evidence — including a 2014 email on the use of “DA subpoenas” from Cannizzaro’s top deputy — that prosecutors were acting under the directives from on high.

“The fact of the policy is a key matter in this case,” Chamblee-Ryan said in an interview after the hearing. “It’s incredible that no one is disputing that.”

The actions in question included the use of so-called “DA subpoenas,” which commanded witnesses to come to the DA’s office for private meetings with prosecutors. Louisiana law allows prosecutors to compel witnesses to appear at such meetings using subpoenas, but they must first get permission from a judge.

The documents Orleans prosecutors used were marked “SUBPOENA” and threatened jail and fines for failure to comply. But the prosecutors never sought permission from judges before issuing them. In that sense, the documents were fake. The day The Lens first reported on the use of fake subpoenas, Cannizzaro’s office ended the practice.

“Plaintiffs in their allegations in their complaint challenge actions by prosecutors trying to meet with witnesses” and prep them for trial, said Raley Alford, the attorney representing Cannizzaro’s office. “As we all know as trial lawyers, few things are more important.”

That these tactics were related to trial preparation was at the heart of Alford’s argument. If the judge accepts that they fell within prosecutors’ “judicial role,” rather than their role as investigators, Alford argued, they are entitled to absolute immunity, regardless of the degree of misconduct.

Milazzo initially seemed to agree. She noted that the allegations in the suit occurred after prosecutors had filed charges in the cases. Once a defendant’s been charged, Milazzo said, any meeting that takes place between prosecutors and witnesses is trial preparation, not part of an investigation.

But Chamblee-Ryan said no such “bright line” divides trial prep from an investigation. A prosecutor, she said can’t “use the cloak of his authority” to shield himself from misconduct claims simply because he has formally charged a suspect.

“After indictment, lots of investigation happens,” Chamblee-Ryan said, a point that Milazzo appeared to concede.

Richard Stanley, another attorney for Cannizzaro, argued that even if the judge found that prosecutors were acting as investigators, rather than in their judicial role, they are still entitled to qualified immunity. To overcome that defense, the plaintiffs would have to show that prosecutors violated their rights and knew, or should have known, they were breaking the law. Three of the plaintiffs in the case were issued fake subpoenas but did not comply and were not jailed. That, Stanley argues, rules out claims that prosecutors violated the Fourth Amendment rule against unreasonable searches and seizures.

“So you’re not talking about a seizure,” he said.

The plaintiffs are also suing for prosecutors’ use of material witness warrants to have witnesses and victims jailed, allegedly for refusing to cooperate with prosecutors. The civil rights groups say that prosecutors obtained the warrants by lying to judges or omitting material facts in their warrant applications.

They also claim that some witnesses were detained for prolonged periods without going before a judge for a bail hearing. Under state law, that hearing should happen within 72 hours of arrest.

“It appears to me that people who are picked up on material witness warrants are being treated differently than people picked up on arrest warrants for crimes,” Milazzo said. “They appear to have fewer rights.”

Stanley said it’s not clear that any prolonged detentions were due to actions by DA employees, rather than sheriff’s deputies or the courts.

In some cases, prosecutors cited fake subpoenas as evidence that witnesses and crime victims were refusing to cooperate with them, then obtained material witness warrants to have them arrested. For some witnesses, prosecutors seeking the warrants falsely told judges that they had ignored “subpoenas,” suggesting that they were referring to valid, court-ordered subpoenas.

That allegedly includes Renata Singleton, one of the plaintiffs in the civil rights lawsuit. Singleton, whose boyfriend was charged with battery and property damage after breaking her phone during an argument, was jailed for five days for allegedly refusing to cooperate in the case. According to the lawsuit, Assistant District Attorney Arthur Mitchell sent her fake subpoenas. When she didn’t comply, he had her arrested, telling the judge issuing the warrant only that she had not obeyed subpoenas.

Cannizzaro’s attorneys have countered that the narrative left out some key facts: Singleton had also ignored court-issued subpoenas to appear for trial and hearing dates. Mitchell also noted those in his warrant application.

Another plaintiff, Marc Mitchell, did not receive a fake subpoena but was jailed under false pretenses, according to the suit. ADA Michael Trummel falsely told a judge that Marc Mitchell, a shooting victim, was unwilling to testify in court unless he was arrested and that he had bought a bus ticket to leave town. Mitchell was arrested and testified.

The claim about the bus ticket was false, the lawsuit says. There was no bus ticket.

As for Mitchell’s willingness to testify, the suit says, Trummel’s claim was misleading. Mitchell had previously met with Trummel but had grown uneasy with Trummel’s behavior. Trummel allegedly tried to convince him to testify in a way that fit the state’s theory of the case, rather than Mitchell’s memory of what he had seen.

In April 2016, the suit says, he told Trummel that he would no longer meet with him in private. He also said that he didn’t want to testify but not that he would refuse to testify if subpoenaed. In fact, during the meeting, he signed a subpoena to appear for testimony in court.

Shortly after the trial, according to the suit, Orleans Parish Criminal Court Judge Laurie White called Mitchell into her chambers and apologized to him over his treatment, saying she had been misled by the DA’s office.

Mitchell attended the hearing on Wednesday. Asked why he decided to sign on as a plaintiff, he said, “To change the system we have here because it’s not right.”

Alford argued that even if they lied, the prosecutors were still protected by absolute immunity.

“When a prosecutor seeks a material witness warrant, he does so as an advocate for the state and is immune from suit, even if there are errors in the application,” he said.

Milazzo did not say when she will hand down a ruling on the motion to dismiss, saying only that she will need some time to decide. While she didn’t indicate how she would rule, she did, at one point, signal that she believes the DA’s argument for prosecutorial immunity will be difficult to overcome.

“I read the cases on absolute immunity and that’s pretty broad,” she said. “That’s going to be a tough hurdle for the plaintiffs to cross.”

Help us report this story     Report an error    
The Lens' donors and partners may be mentioned or have a stake in the stories we cover.
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.