Even before he began his 2020 election campaign, Orleans Parish District Attorney Jason Williams, who was elected to the post in December, was among the most prominent — and fiercest — critics of the use of fake subpoenas under his predecessor Leon Cannizzaro.
The Lens first reported on the practice in April 2017. The same day the first story published, Cannizzaro put an end to the use of what the office called “DA subpoenas,” legally invalid documents styled to look like subpoenas that were used to pressure witnesses in criminal cases to meet privately with prosecutors.
The fallout, however, has continued into Williams’ new term in office. A federal civil rights suit over the use of fake subpoenas — filed in late 2017 — is ongoing. But recently, Williams’ office avoided a court hearing in the case by authorizing a partial settlement with one of the plaintiffs.
And the Orleans Parish District Attorney’s Office is continuing to defend another legal action related to the use of fake subpoenas: a public records case filed shortly after The Lens first reported on the use of bogus subpoenas under Cannizzaro.
The office lost the case last year, and Civil District Court Judge Ethel Julien awarded more than $50,000 in penalties, for which Cannizzaro — as records custodian at the time — was personally responsible. But lawyers for the plaintiff are also seeking about $135,000 to make up the costs of the multi-year suit. Williams’ office would be on the hook for that. (However, even if a judge awards that amount, a provision in the state constitution prohibits state courts from seizing funds from public entities.)
The DA’s office, under Cannizzaro, appealed last summer. On Tuesday, lawyers for the plaintiff and the DA’s office went before the Louisiana Fourth Circuit Court of Appeal for oral arguments.
“We were surprised that counsel for District Attorney Jason Williams defended the actions of prior District Attorney Cannizzaro who withheld these subpoena records for years in violation of the Public Records Act,” said Hannah Lommers-Johnson, Attorney for the Roderick and Solange MacArthur Justice Center, and co-counsel for Emily Washington, the plaintiff.
Prior to becoming DA, then-City Councilman Williams not only criticized fake subpoenas themselves, he criticized Cannizzaro for not releasing records about them more quickly after the practice became public knowledge.
Williams’ office did not respond to repeated requests for comment on this story.
Subpoena or ‘notice’?
In May 2017, The Roderick and Solange MacArthur Justice Center filed a lawsuit against Cannizzaro for failing to produce records of the fake subpoenas, which were used by the office to pressure witnesses in criminal cases to appear for private interviews with prosecutors. The case stems from a 2015 records request from Washington.
Washington’s was one of at least three public records suits filed against the DA’s office for failure to turn over fake subpoenas, including a successful suit filed by The Lens in 2017.
Washington had not specifically asked for fake subpoenas in her 2015 request. She didn’t know they existed, and wouldn’t 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 to criminal cases, but only if they file a written motion to issue them and receive permission from a judge — something that didn’t happen with the office’s phony subpoenas.
The DA’s office denied the request at the time, saying it would take too long to find the records and directing Washington to the Clerk of Court’s office, where official case records should contain subpoena records.
The problem, unbeknownst to Washington at the time, was that the official record only contains official subpoenas, but it wouldn’t contain fake ones. Those were only maintained in the DA’s internal records.
The MacArthur Justice Center filed suit in 2017. The group argued that the DA’s office should have handed over the records in response to the request because, even though they weren’t legally valid Article 66 subpoenas, the so-called “DA notices” were treated as subpoenas by the office and used for the same purpose: getting someone into a private meeting.
The DA’s office, in response, used the fact that the subpoenas were not legally authorized as part of its defense. They began referring to the subpoenas as “DA notices” or “DA notifications.” Over the last several years of litigation, the DA’s office has maintained that since these subpoenas weren’t real Article 66 subpoenas — even though the documents were titled “SUBPOENA” and clearly referenced Article 66 — they didn’t need to hand them over to Washington.
In oral arguments on Tuesday, David Fink, representing the DA’s office, seemed to stick with this position.
He argued that that the office did not “arbitrarily or capriciously” fail to respond to the records request in violation of Louisiana public records law because differing opinions exist as to whether or not the documents in question were either the requested “subpoenas” or instead, “DA notices,” and therefore not responsive to the request.
James Craig, an attorney for the Roderick and Solange MacArthur Justice Center and co-counsel for Washington, argued that this position was disingenuous. He noted that the DA’s office only began using the language “DA notice” after the practice of using fake subpoenas became public.
“There were not two types of documents. There was always only one form of document,” he said before the Fourth Circuit on Tuesday. “After the DA’s clandestine effort to misuse Article 66 subpoenas was exposed in 2017, then they switched justifications for rejecting the PRR and say that they withheld the records because they didn’t recognize them as subpoenas, and that is when this fiction of DA notifications first started being used.”
Craig noted that this document had the word “SUBPOENA” at the top of the page, and contained the language, “pursuant to [Louisiana Laws Code of Criminal Procedure] art. 66.”
“The records were called subpoenas, were referred to as subpoenas internally, were held out to members of the public as subpoenas, and were represented to judges as subpoenas. That is more than enough evidence to support Judge Julien’s finding that the DA arbitrarily, capriciously, unreasonably failed to respond as required by the public records law” Craig said.
These legally unauthorized subpoenas also threatened jail or fines if ignored by the recipient, and at one point, an ADA even referred to one of these documents as a subpoena in a hearing and asked the court to arrest an individual who failed to comply with it.
“That is the height of arbitrariness — Calling a document one thing — ‘Article 66 subpoena’ — when you are trying to get witnesses to talk to you, a and calling it another thing — ‘DA notice,’ or ‘DA notification’ — when you are trying to evade the public records law,” said Craig.
Fink also argued that there should be no civil penalties because the DA’s office wrote a letter responding to Washington’s request within the three-day timeframe required by Louisiana public records law.
However, Craig said the letter Washington received — which stated that the DA’s office didn’t have their records organized in a way that would allow them to search for these documents — was neither true nor a legally sufficient response. He noted that many of these files were stored electronically but the office “made no attempt to even look for responsive records.”
According to Louisiana public records law, a records custodian is required to respond to public records requests in certain ways. The custodian must do one of the following to comply with the law: identify responsive records and produce them; allow the requester to search for responsive records themselves; inform the requester that the custodian does not possess the records; or, inform the requester that the documents are not in fact public records under the law.
Washington eventually obtained the records she requested, but it took years of litigation.
“The DA’s position here frustrates the entire purpose of the public records law.” Craig said during the Tuesday hearing. “The custodian is not allowed to play word games or concoct creative responses that block the requestor from the records requested. Any contrary finding, we would submit, would be a roadmap to bad faith custodians.”
Lommers-Johnson said that in order for public records law to have any real meaning, records custodians must face consequences for violating it.
“Refusing to pay for costs and penalties as the District Attorney seeks to do would prevent nearly all members of the public from pursuing records wrongfully withheld from them.”