A lawyer representing Orleans Parish District District Attorney Leon Cannizzaro and several of his prosecutors on Wednesday told a panel of federal appeals judges that a lawsuit over the DA’s office’s use of fake subpoenas should be thrown out, in part, because the prosecutors enjoy legal immunity.
But a three-judge panel for the U.S. Court of Appeals for the 5th Circuit frequently interrupted the lawyer — Raley Alford — peppering him with skeptical questions and repeatedly expressing strong disapproval of the practice.
“Where is the line?” Judge Catharina Haynes said at one point during Alford’s arguments. “Faking a subpoena is clearly improper under the law.”
The underlying civil rights suit was filed in 2017 by the ACLU and Civil Rights Corps on behalf of a group of people issued fake subpoenas, arrested for allegedly failing to cooperate with prosecutors or both. It was filed several months after The Lens first exposed the use of fake subpoenas, a practice that went on for decades. Cannizzaro’s office announced the practice would end the same day The Lens published its first story on it.
Cannizzaro’s office asked U.S. District Court Judge Jane Triche Milazzo to dismiss the suit, arguing prosecutorial immunity, but Milazzo last year allowed most of the counts in the suit to move forward. Cannizzaro appealed.
On Wednesday, Alford argued that even if the so-called “DA subpoenas” — phony documents that falsely threatened their recipients with jail time for failing to comply — may have been deceptive, legally invalid and improper, prosecutors were using them to bring critical, and often uncooperative, witnesses in to talk about ongoing criminal cases.
“The object of that document is to get the witness into the office to discuss the prosecution,” he said.
“Are you saying that this is somehow noble because they were trying to talk to witnesses?” Judge Jennifer Elrod asked. “What’s the classic role of the prosecutor? Creating fake documents, that’s not the classic role. Coercing people to come in for interviews when you don’t have the authority to do that, that’s not the classic task of the prosecutor.”
Alford pointed out that the plaintiffs in the lawsuit received fake subpoenas only after defendants in the cases had been indicted or charged through a bill of information, so the attempts to interview them were part of trial prep, which, he argued, is part of their roles as advocates for the state.
(In other cases not included in the suit, the DA’s office used fake subpoenas before formal charges were filed. Charles Bingham, the victim in a 2014 shooting case, signed one of the phony documents in July 2014, nearly a month before the defendant, Freddie Johnson, was charged in a bill of information.)
He brought up one plaintiff in the civil rights case, identified by the pseudonym “Jane Doe,” a victim of child molestation by her stepfather who alleges she was harassed by prosecutors and served with a fake subpoena.
“Her mother hired an attorney who said, ‘We don’t want you to talk with this child.’ Your honor, that creates a very difficult situation,” Alford said.
A narrow appeal
It appears from Wednesday’s arguments that the question before the appeals court is narrow, and is not likely to stop the case even if the panel finds in favor of the DA’s office.
Nor are the judges even being asked to consider Milazzo’s full ruling. Instead, the appeals judges are being asked to rule on a narrow part of it — whether prosecutors enjoy “absolute immunity” for their conduct.
Absolute prosecutorial immunity — a doctrine that shields prosecutors from civil rights suits for actions they took within the scope of their duties — applies to prosecutors being sued individually for monetary damages. The plaintiffs also have open claims against Cannizzaro and his prosecutors acting in their “official capacity,” and claims asking for injunctions against prosecutors prohibiting them from violating witnesses’ rights. Those would not be affected even if the judges overturn part of Milazzo’s ruling based on absolute immunity.
Katie Chamblee-Ryan, one of the plaintiffs’ attorneys with the Civil Rights Corps, said that state law makes it clear that issuing subpoenas to compel witnesses into private meetings is not the prosecutors’ role. The Louisiana Code of Criminal Procedure does provide for such subpoenas — called Article 66 subpoenas — but they require a judge’s sign-off. And they have to be issued by the Clerk of Court. Rather than acting as advocates prosecuting crimes, the prosecutors who used the documents were unlawfully assuming the role of judges.
“The narrow question before the court is whether a prosecutor is immune to suit when he steps into a role that is exclusively reserved for the court,” she said.
Cannizzaro’s appeal brief contained arguments that the appeals court should make a decision on the merits of the underlying, ongoing case — whether the use of the phony subpoenas violated the plaintiffs’ civil rights. Because those arguments were based on counts in the suit that were recently dismissed by Milazzo, it does not appear that they will be part of the appeals court’s decision. Instead, those arguments will likely be made and decided in Milazzo’s courtroom in U.S. District Court.
Alford kept his arguments focused almost entirely on the question of absolute immunity, only bringing up the merits of the case at one point. Responding to a series of questions about why the DA’s office did not use other, legal means to secure the witnesses, Alford said the lawsuit alleged “no violation of a constitutional right.”
Asked why the DA’s office did not instead seek material witness warrants for the witnesses’ arrest — a type of warrant used to secure critical witnesses who refuse to cooperate with prosecutors — Alford said the warrants can be disruptive to a case.
“Because it is disruptive to use legal means, prosecutors are empowered to use illegal means,” Elrod said. “This argument is fascinating.”
The appeals panel should issue a decision in the coming months. Meanwhile, the civil rights suit continues in U.S. District Court.