Criminal Justice
 

Fourth Circuit rules Orleans DA must produce fake subpoenas

A panel of judges from the Fourth Circuit Court of Appeal has affirmed a lower court ruling that Orleans Parish District Attorney Leon Cannizzaro must turn over DA subpoenas in closed and rejected cases in response to The Lens’ public record request.

In a ruling issued Wednesday, the panel agreed with Civil District Court Judge Kern Reese, in effect ordering Cannizzaro’s office to produce any remaining DA subpoenas from a 16-month window. The judges denied The Lens’ appeal to extend the ruling to open cases.

The DA’s office has argued the request was overly burdensome, but the district and appellate court argued the public agency’s duty supersedes the workload it will require.

Lens attorney Scott Sternberg, of Sternberg, Naccari and White, said the ruling was victory for transparency.

“These documents are of tremendous public interest and that’s why we’ve been reporting on them for years,” Sternberg said. “We’re thrilled with this result.”

“This means that not one, but now four judges have said that these DA subpoenas are public records,” Sternberg said.

The judges also awarded additional attorney’s fees to be decided by the trial court.

“All things considered this was a win for The Lens and transparency,” Sternberg said.

Ken Daley, a spokesman for Cannizzaro, said the office intends to appeal the ruling to the Louisiana Supreme Court.

“We disagree with the panel’s decision and do not believe the court fully appreciated the extraordinary burden and expense incurred in the fulfillment of this records request,” Daley said.

Cannizzaro was appealing Reese’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, 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.

But after combing through thousands of case files and providing one subpoena to The Lens, the DA’s office appealed Reese’s order.

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. Now, Cannizzaro’s office will have to produce the rest.

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.

This story has been updated to include comments from the Orleans Parish DA’s office.

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About Marta Jewson

Marta Jewson covers education in New Orleans for The Lens. She began her reporting career covering charter schools for The Lens and helped found the hyperlocal news site Mid-City Messenger. Jewson returned to New Orleans in the fall of 2014 after covering education for the St. Cloud Times in Minnesota. She graduated from the University of Wisconsin-Madison with majors in journalism and social welfare and a concentration in educational policy studies.