Attorneys for The Lens and Orleans Parish District Attorney Leon Cannizzaro squared off in front of a panel of three Louisiana Fourth Circuit Court of Appeal judges on Thursday.
Cannizzaro is appealing an Orleans Parish judge’s ruling that ordered his office to produce 16 months of so-called “DA subpoenas,” a term the office used to describe documents purporting to be actual subpoenas, appearing to compel witnesses and crime victims to appear for private interviews with prosecutors by threatening fines and jail time. The documents, however, were legally worthless.
After the office refused to provide fake subpoenas in response to a public records request, The Lens sued last year. In his October ruling, Civil District Court Judge Kern Reese ordered Cannizaro’s office to “eat the elephant one bite at a time” and start producing DA subpoenas in closed cases and cases that the DA’s office had rejected.
Even as Reese’s order was put on hold, pending the outcome of the appeal, the DA’s office was combing through tens of thousands of cases to find fake subpoenas prosecutors had used. That effort came as a response to a request from the New Orleans City Council for a tally of DA subpoenas issued between 2014 and 2016.
This summer, the office identified an additional 249 fake subpoenas from that period and provided them to The Lens.
Those 249 fake subpoenas only partially satisfy Lens Editor Charles Maldonado’s April 2017 public records request, from which the lawsuit stems.
Lens attorney Scott Sternberg, of Sternberg, Naccari and White, is also appealing a portion of Reese’s ruling. Sternberg thinks DA subpoenas in ongoing criminal cases should be subject to public records request law, too. Nothing categorically protects or denies the notices, Sternberg argued Thursday.
“That exception is created so DA’s can keep personal notes private,” he said, referring to the criminal investigation exemption in the state Public Records Law that is often used to shield records in ongoing cases.
For years, Cannizzaro’s office used the phony documents to help convince witnesses to talk. The most current format contains a reference to Article 66 of the state Code of Criminal Procedure. That’s the state law that allows prosecutors to subpoena witnesses for private interviews. But they must first ask a judge for permission. The “DA subpoenas” in question were not approved by a judge.
The office stopped using the documents the day The Lens reported on their existence.
Cannizzaro’s attorney, William Dieters, an assistant district attorney himself, argued on Thursday that a ruling in favor of The Lens could set “bad precedent” and turn every public agency into nothing but a records custodian, unable to fulfill their other legal duties like prosecuting crimes.
The DA’s office is also disputing Reese’s award of attorneys’ fees to The Lens.
Dieters focused on Maldonado’s use of the words “any and all,” when requesting different batches of fake subpoenas, because, he said, that made the requests overly broad. He said the manpower it would take to find the documents would create a burden on the office. The office stores the documents inside its internal case files, Dieters said, but they are not indexed. Finding them means paging through thousands of cases files, one by one.
Dieters noted that fulfilling the council’s request took about 100 employees thousands of hours at a cost of $118,000.
“The DA has always maintained … that [Maldonado’s] requests are overly burdensome,” Dieters said.
Judge Sandra Cabrina Jenkins noted that Maldonado’s request covered a specific sixteen-month period.
Dieters acknowledged that fact but said the request was still too much work based on the number of cases the office handles.
Judge Dale Atkins asked whether the DA could determine how many rejected cases—ones the DA declined to prosecute—were generated in those 16 months.
Dieters said they could but that he did not have that number on hand.
“Before you can determine whether or not it’s burdensome you have to know the number of cases,” she said.
Sternberg said that the fact that the DA’s office has continued to operate while fulfilling the council’s request — which covered a longer time period than The Lens’ — was proof that the Lens’ request was not too burdensome.
“There is no evidence in the record to show how overly burdensome it is,” he said.
Dieters should be familiar with the phony documents. In 2017, he sought to arrest a victim of alleged domestic violence in part because she had failed to obey a fake subpoena. Records from the DA’s office show at least seven other times in which he used “DA subpoenas” in 2015 and 2016.
During the Thursday hearing, Jenkins asked whether or not The Lens could simply go to the Orleans Parish Clerk of Criminal Court to find fake subpoenas.
But the fake subpoenas were kept only in the DA’s office’s internal files. They were not entered in the clerk’s files or electronic court records in the same way that genuine subpoenas are. Typically, The Lens found them in public court files only when a witness’ attorney submitted them as evidence after finding out about them and objecting to their use.
The judges will likely issue a ruling in the coming months.