Prosecutors in the Office of Orleans Parish (La.) District Attorney Leon Cannizzaro Jr. have been engaging in the unethical and possibly illegal practice of sending fake subpoenas as a means of pressuring witnesses in criminal cases to come speak with them.
Tiffany Lacroix received one such notice in November, ordering her to meet with a prosecutor about the upcoming trial of Cardell Hayes, who was charged with murdering former New Orleans Saints player Will Smith. The notice had “Subpoena” printed at the top and warned, in capital letters, that “A Fine and Imprisonment May Be Imposed for Failure to Obey This Notice,” but The Lens reports that it wasn’t authorized by a judge; nor was it issued by the clerk of court, which normally sends out subpoenas.
Lacroix would not have gone to jail had she ignored the notice, because the notice was fake.
Pace University law professor and former New York City prosecutor Bennett Gershman, who is also an expert in prosecutorial misconduct, told The Lens: “There’s no question this is improper. Clearly, it’s unethical because the prosecutor is engaging in fraudulent conduct.”
Colin Reingold, an attorney with Orleans Public Defenders, told The Lens that the practice “borders on fraud or forgery, and I certainly see ethical problems with compelling someone to come in under false pretenses.”
The use of the documents was defended by Assistant District Attorney Chris Bowman, who serves as Cannizzaro’s spokesman, and called the documents “notifications” or “notices.”
“The district attorney does not see any legal issues with respect to this policy,” Bowman said, adding that Cannizzaro’s office deals with “an extraordinary number of cases,” including many in which potentially crucial witnesses are reluctant to talk.
“Maybe in some places if you send a letter on the DA’s letterhead that says, ‘You need to come in and talk to us,’ … that is sufficient. It isn’t here,” Bowman said. “That is why that looks as formal as it does.”
Bowman was not aware of how often the notices were used, but he told The Lens that the practice predates Cannizzaro’s tenure by decades. He claimed that it’s no different than if a letter were sent out on the district attorney letterhead, but there is a huge difference: To someone who doesn’t know any better, the notice looks like an official summons, with the threat of an arrest and/or jail time if the person does not comply.
“It is inappropriate for the district attorney’s office to falsely suggest that this document is a ‘subpoena,’” Dane Ciolino, a Loyola law professor and legal ethics expert, told The Lens, “and to suggest that disregard of the document can be punishable by fine or imprisonment.”
From The Lens:
Subpoenas are used to compel someone to testify or produce evidence. They’re typically used for trials and hearings, and they’re issued by the clerk of court.
Louisiana law also allows district attorneys—with a judge’s authorization—to use subpoenas to force witnesses to be questioned outside court. A judge isn’t present at those meetings, and prosecutors can exclude anyone, except a witness’ attorney.
People who ignore a subpoena can be charged with contempt of court and arrested.
To subpoena someone for one of these private interviews, prosecutors have to submit a written application to a judge in which they present “reasonable grounds” to question the person. The judge decides whether to order the court clerk to issue the subpoena.
The point of court approval, Ciolino told The Lens, is to prevent “possible abuse” by the DA’s office.
In these cases, the District Attorney’s Office didn’t go to a judge. Instead, the office sent the notices itself.
The Lens informed Bowman that it would be reporting that legal experts had said the practice could be illegal, and on Wednesday afternoon the following appeared in the New Orleans Advocate:
For years, the Orleans Parish District Attorney’s Office has taken a stern approach to skittish witnesses, warning in written notices with the word “subpoena” at the top that failing to talk could mean fines or even jail time.
On Wednesday, prosecutors announced they are dropping the ominous heading on those notices, acknowledging that the DA’s Office does not have the authority to issue subpoenas by itself.
Critics, including the Orleans Public Defenders, had assailed the notices as misleading.
The DA’s Office will now send a request called a “notice to appear” instead.
“I have today again gone out and said this is the only acceptable notice to appear that we will be sending to people,” First Assistant District Attorney Graymond Martin said.
The Lens says it received no notice or announcement that the practice was being stopped.