Prosecutors in the office of Orleans Parish District Attorney Leon Cannizzaro 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.
Lacroix would not have gone to jail had she ignored the notice, because the notice was fake.
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.”
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 they do 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.”
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 they received no sort of notice or announcement that the practice was being stopped.