State Supreme Court denies Orleans DA’s appeal request in fake subpoena records lawsuit

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Steve Myers/The Lens

Until recently, The Orleans Parish District Attorney's Office sent notices like this that threatened jail time if people don't come in for questioning. But they weren't not legal documents because they weren't authorized by a judge. A new federal lawsuit alleges the practice was widespread and violated people's constitutional rights.

It’s finally time for Orleans Parish District Attorney Leon Cannizzaro to follow a local judge’s 2017 order and fully respond to The Lens’ 2017 public records request for 16 months of fake subpoenas, the legally worthless documents used for decades to convince reluctant witnesses to speak with prosecutors.

On Tuesday, the Louisiana Supreme Court denied District Attorney Leon Cannizzaro’s request to reconsider lower court rulings requiring his office to find and turn over the records.

The high court’s decision effectively ends the key legal dispute between the DA’s office and the news outlet. An Orleans Parish Civil District Court judge and a state appeals court had previously sided with The Lens.

On Wednesday afternoon, the DA’s office provided two new records to The Lens. Cannizzaro’s spokesman Ken Daley said in a statement that the documents fulfill The Lens’ records requests and the court order, though there are still additional fake subpoenas outstanding. Daley said more will be turned over as they become available.

Lens attorney Scott Sternberg of Sternberg, Naccari and White, said he was thrilled the case stemming from Lens Editor Charles Maldonado’s April 2017 public records request has come to a resolution.

“The Lens broke open this story two years ago and it’s taken some time to ensure that we’re allowed to inspect these records and finish the reporting that we started two years ago,” Sternberg said.

Sternberg said it was a victory for citizens because they should have access to the phony documents as well. Lens Co-Founder Karen Gadbois agreed.

“The Lens is more than a news organization,” she said. “We aggressively pursue access to public information to ensure it is accessible to the public.”

The fake subpoenas, also called “DA subpoenas,” ordered witnesses and crime victims to appear for private interviews with prosecutors. They were marked “SUBPOENA” and threatened jail for failing to comply. But they were never legally authorized.

Prosecutors can force witnesses to attend private interviews using a special kind of subpoena, but state law requires them to first get approval from a judge. The form the DA’s office used did not have a judge’s approval.

The DA’s office used the documents, in one form or another, for decades. The day The Lens published its initial story on the practice, Cannizzaro’s office announced it would stop using the misleading notices.  The Lens’ reporting led, in part, to a federal civil rights suit against the DA’s office filed by the ACLU and the Civil Rights Corps.

The Lens sued Cannizzaro’s office in May 2017 after the office refused to provide fake subpoenas in response to Maldonado’s public records request.

In October 2017, Orleans Parish Civil District Court Judge Kern Reese ordered Cannizzaro’s office to start producing fake subpoenas in closed cases and cases that the DA’s office had rejected.

Weighing the the public’s right to examine government records against the DA’s argument that finding the documents would be a strain on the office, Reese ordered the office to turn them over in stages over several months.

“There’s an old maxim that says, ‘You eat your elephant one bite at a time.’ And that’s what I prescribe that needs to happen here,” Reese said.

Cannizzaro appealed that ruling to the Fourth Circuit Court of Appeal, which affirmed Reese’s order. Cannizzaro appealed the October ruling and argued the state’s highest court should weigh in on what he described as two fundamental issues.

First, he asked the court to clarify whether public records requests must match the way public entities store their records. For example, during testimony in 2017, Assistant District Attorney Donna Andrieu, said Maldonado’s request — for all DA subpoenas over a period of time— didn’t match how the office kept its files — by case number.

The office organizes its files by case, she said. “We don’t have a filing cabinet full of DA subpoenas — or any other document.”

Cannizzaro also asked the court to answer whether state Public Records Law “obligates a public entity to comply” with a request that will require significant time and money. He said his office had already spent more than $118,000 to pull case files from storage and thousands of man hours to review them for fake subpoenas used by prosecutors.

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.

“Our office never has had anything to hide in regard to such stylized documents,” Daley said. “Our objection before the courts was against the onerous expense and hardship that a hand search to fulfill such an excessively broad request would entail.”

Last summer, the office identified 249 DA subpoenas from that period and provided them to The Lens. Those records only partially satisfied Maldonado’s April 2017 public records request, which included fake subpoenas from 2017 cases.

The Lens maintained that the phony subpoenas were subject to the state public records law and that the public records request at issue was narrow enough to allow the DA’s office to identify the documents. Furthermore, by fulfilling the council’s request, the DA’s office proved it could perform the search and still carry out its duty to carry out prosecutions.

Tuesday’s decision means the Supreme Court won’t hear Cannizzaro’s request.

On Wednesday, the DA’s office provided one more DA subpoena from 2014. It was made out to Charles Bingham, a shooting victim.

The DA’s office also turned over one additional record from 2017. In a letter to Sternberg, Cannizzaro’s attorney, David Fink, said it was the only remaining “DA subpoena” from a 2017 case that was closed as of Maldonado’s April 2017 public records request.

“Maldonado is now in possession of all D.A. Notifications for files closed as of April 27, 2017,” Fink wrote.

But there are still outstanding fake subpoenas that were issued in 2017. The Lens has previously reported on at least some of them from that year that were not included in the records the DA’s office provided in July or on Wednesday.

At least some of those cases, however, have been appealed and may still be considered open by the DA’s office.

Daley said more documents will be handed over as the cases are closed and the subpoenas found.

“As case files are closed on an ongoing basis, District Attorney Leon Cannizzaro has directed that should any additional ‘DA subpoena’ documents be subsequently discovered in newly closed case files, they are to be forwarded to Mr. Maldonado immediately,” Daley said.

In his statement, Daley said that the 251 subpoenas identified so far from 2014 to April 2017 represent a rate of about one out of every 340 case files. He added that according to the DA’s office’s tally, about 70 percent of those discovered were “simple reminder notifications to cooperating witnesses or law enforcement personnel of trial date or court appearances, or proof of attendance for employers,” which the DA’s office had previously asserted in July when it provided the first 249 subpoenas. Asked then which subpoenas fit into those categories, however, Daley said that information was not available.

In the statement on Wednesday, Daley said that no DA subpoenas “by themselves” resulted in anyone’s arrest or detention.

The Lens found one case where an arrest warrant was issued for an alleged domestic violence victim in part because she ignored a fake subpoena, though prosecutors alleged she also ignored a legitimate trial subpoena. And the ACLU and Civil Rights Corps have alleged that other recipients were arrested, at least in part, for failing to comply with fake subpoenas.

Daley did not immediately respond to follow-up questions from The Lens.

This story was updated to include post-publication developments and comments from the DA’s office.

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