Orleans Parish Civil District Court Judge Ethel Julien this week ordered Orleans Parish District Attorney Leon Cannizzaro to pay more than $50,000 in penalties for failing to turn over fake subpoenas — which the DA’s office used for years until The Lens exposed the practice in a 2017 story — in violation of the Louisiana Public Records Act.
In May 2017, The Roderick and Solange MacArthur Justice Center filed suit against Cannizzaro over his refusal to hand over records of so-called “DA subpoenas” used in criminal cases.
The suit stemmed from a May 2015 public records request from MacArthur attorney Emily Washington that the DA’s office denied.
Washington had not specifically requested fake subpoenas, which the public would not be aware of for another two years, when The Lens first reported on them. She asked for “Article 66 subpoenas,” a type of subpoena authorized by the Louisiana Code of Criminal Procedure.
Genuine Article 66 subpoenas allow prosecutors to conduct private interviews with witnesses in criminal cases, provided they file a written motion to issue them and receive permission from a judge.
But in some cases, Orleans Parish prosecutors sent out documents purporting to be Article 66 subpoenas without first asking a judge. The documents were labeled “SUBPOENA” and threatened jail or fines if the person ignored them. But they were bogus.
An assistant district attorney denied the request because it would require a manual “review of literally thousands of closed files, a substantial number of which are stored off-site.” (That was exactly what the office would later tell The Lens when it denied our public records request for “DA subpoenas.”) The DA’s office directed Washington to get the documents from the Clerk of Court’s office, which maintains court records, including records of subpoenas.
But as a result of The Lens’ reporting, the MacArthur Justice Center found out that the clerk would not have everything Washington sought. While genuine Article 66 subpoenas were part of criminal court records, fake subpoenas were not. The group filed suit seeking to compel production of the subpoenas under the state public records law in May 2017.
The MacArthur lawsuit was dismissed in late 2017, but MacArthur won an appeal in 2018, reviving it. The case went to trial earlier this year.
The DA’s office used the fact that the subpoenas were not legally authorized as part of its defense in the case. The office maintained that Washington’s request did not cover fake subpoenas because they were not authorized Article 66 subpoenas.
But the MacArthur attorneys argued that the documents had been marked — falsely — as being authorized under Article 66 of the Code of Criminal Procedure when they were given to witnesses. Moreover, prosecutors had been instructed to use a template that included that language under an office-wide directive from First Assistant District Attorney Graymond Martin.
The MacArthur suit is one of four lawsuits filed against the DA’s office over its use of fake subpoenas, including a federal civil rights suit and a public records suit filed by The Lens.
Civil District Court Judge Kern Reese found in favor of The Lens in 2017. Cannizzaro unsuccessfully appealed to the Fourth Circuit Court of Appeal and the Louisiana Supreme Court. The federal suit, filed by the ACLU and the Civil Rights Corps, is ongoing.
The DA’s office did not submit responsive records to MacArthur until June 2019. In her July 27 ruling, Julien awarded Washington and MacArthur $51,450, representing $50 per day for 1,029 days of withholding the documents. Julien also found that the DA’s office acted “arbitrarily and capriciously” in failing to produce the documents in 2015. Under state law, that means Cannizzaro, as records custodian, is personally responsible for paying the penalties.
In a Thursday press release, MacArthur attorney Hannah Lommers-Johnson noted that the use of fake subpoenas continued for years after 2015, something that may have been prevented had they come to light when Washington made her records request.
“If the District Attorney had responded truthfully and completely to Emily Washington’s May 2015 public records request, the people of Orleans Parish would have discovered the use of these improper subpoenas two years before they were exposed by journalists,” Lommers-Johnson said.
Cannizzaro spokesman Ken Daley did not respond to a request for comment from The Lens. But in a statement published by WDSU, he said the DA’s office disagrees with the legal reasoning behind the ruling and will likely file a suspensive appeal. That would put the money damages on hold during the appeals process.
This story has been updated to include the summary of a statement from the DA’s office that was published by WDSU.