Philadelphia’s progressive district attorney and a U.S. attorney general appointed by President George W. Bush might have vastly different politics, but they can agree on one thing: that New Orleans prosecutors crossed a line with bogus “subpoenas.”
DA Larry Krasner and former AG Michael Mukasey are among the 36 prosecutors who signed onto a friend-of-the-court brief filed Friday in a federal civil rights lawsuit targeting Orleans Parish District Attorney Leon Cannizzaro.
The brief claims that by sending documents marked “subpoena” to reluctant witnesses without a court order, Cannizzaro’s office undermined the public’s trust in prosecutors everywhere.
The national heavyweights say federal courts should allow a lawsuit against Cannizzaro to proceed, despite precedents that generally grant prosecutors “absolute immunity” for their conduct on the job.
“The conduct at issue in this case is far afield from the ‘vigorous performance’ of prosecutorial duties. It is a fraud on the criminal justice system,” the brief states. “Denial of absolute immunity for the conduct alleged in this case would do little to encourage lawsuits against prosecutors carrying out their responsibilities in accordance with law.”
The brief is the latest salvo in a nearly two-year-old lawsuit filed by Orleans Parish Criminal District Court victims and witnesses.
Federal lawsuit over Orleans DA’s use of fake subpoenas can proceed, judge rules
The plaintiffs allege that Cannizzaro’s office used a wide array of dubious tactics, like bogus subpoenas and unfounded material witness warrants, to force them to cooperate.
Prosecutors used the “subpoenas,” which threatened jail time or fines, to convince skittish witnesses to come to the district attorney’s offices to discuss cases. Legitimate subpoenas would have come with a judge’s signature, but these did not.
Cannizzaro disavowed the use of bogus subpoenas when they were revealed by the website The Lens in 2017. Still, he noted that they were in use in New Orleans decades before his election and in other DA offices statewide. His lawyers have maintained that he bears no legal liability for the practice, because prosecutors are generally protected from lawsuits over their official conduct.
Cannizzaro’s legal team filed a motion to dismiss the lawsuit on those grounds, but U.S. District Judge Jane Triche Milazzo rejected their request in February 2018.
The federal civil suit against Cannizzaro and 11 other prosecutors has yet to go to trial before Milazzo. Cannizzaro’s team has pursued an appeal of her earlier decision at the 5th U.S. Circuit Court of Appeals.
The friend-of-the-court brief filed on Friday with the 5th Circuit is intended to aid Cannizzaro’s courtroom opponents, the American Civil Liberties Union of Louisiana and the Washington, D.C.-based law firm Civil Rights Corps.
The brief was organized by Mary McCord, a top U.S. Department of Justice official under President Barack Obama who’s now at the Georgetown University Law Center.
James Gill: New Orleans DA doesn’t confess when shoe is on the other foot
In a telephone interview, McCord said that she had to make many difficult decisions in decades as a prosecutor, but that bogus subpoenas were well outside the bounds of what deserves a legal shield.
“I think the breadth and scope of the signatories (of the brief) shows a widely held view of ethical prosecutors current and former — that you don’t need to cheat. You should abide by the legal processes in place,” she said. “This brings a bad name to ethical prosecutors.”
Krasner, a former criminal defense attorney, became a progressive superstar upon his election as Philadelphia district attorney as a Democrat in 2017. Since then he has created a special unit to review the validity of old convictions, stopped pursuing marijuana convictions and abandoned the pursuit of cash bail for low-level cases.
Mukasey, a conservative Republican, cut a different figure as U.S. attorney general from 2007 to 2009. He opposed reducing crack cocaine sentences and defended the Bush administration’s positions in the “war on terror.”
New Orleans district attorney unearths 249 ‘DA subpoenas’ issued over three years
Declined to comment Monday. But his legal team can point to a competing friend-of-the-court brief filed in May by the Louisiana District Attorneys Association.
While that brief does not directly defend the use of bogus subpoenas or material witness warrants, it does say that courts must uphold the general concept of absolute immunity for prosecutors.
“Any ruling that alters or diminishes the scope of absolute immunity compromises the ability of district attorneys and assistant district attorneys to fulfill their responsibilities to serve the public interest and presents a substantial risk of adversely affecting the proper functioning of the criminal justice system,” the group said.
Quick-thinking prosecutors in movies or TV dramas might pace the courtroom while tying defendants in knots under cross-examination. Only when the state has won the battle of wits can society’s enemies be safely sent up the river, and honest burghers sleep soundly.
Real life for assistant district attorneys tends to be significantly less glamorous, for opportunities to demonstrate forensic brilliance are limited. Get collared on a charge of any gravity, and your case will likely never get to court. The art of the plea deal is paramount these days.
“We’ve got you dead to rights,” the assistant DA will assure the hapless suspect. “Play ball and make it easier on yourself. Resistance will only make it worse for you in the long run.” More likely than not, a mea culpa will follow.
While prosecutors are quick to recognize the wisdom of a confession when they are running the show, they are less inclined to prescribe a similar course when the boot is on the other foot and they are the ones accused of sleazy and corrupt antics.
So, it was when New Orleans DA Leon Cannizzaro’s office was sued for ginning up what were styled “subpoenas” to bully possible crime victims or witnesses into submission. Judges were even persuaded to lock suspects and material witnesses up on the strength of fake court orders.
The use of bogus documents to alter the course of justice is clearly a bigger threat to the civilized order than many a crime that occupies the attention of Cannizzaro’s enforcers. And this was no aberration, because they had been playing this trick for many years. Malice does not come much more forethought than this.
Because prosecutors are paid to hold the rest of us accountable for our transgressions, it is reasonable to expect a higher ethical standard from them. But there must be plenty of prison inmates who wouldn’t stoop to the level of prosecutors who are prepared to lie and counterfeit so that recalcitrant but law-abiding witnesses can be thrown in jail.
Prosecutors in New Orleans have been dishing out what purported to be subpoenas for years, although any first-year law student could have told you that, lacking a judge’s signature, they were null and void.
It must, therefore, have been common knowledge in the criminal justice system that prosecutors were persuading judges to lock up witnesses and suspects for refusing to comply with orders that had no legal force.
This does not boost confidence in the judiciary, which was evidently content to let prosecutors usurp its authority.
That all changed when an online news service, the Lens, exposed the dirty tricks on which New Orleans prosecutors have long relied. The evidence was all there in black and white on the bogus subpoenas, and the prudent course for Cannizzaro’s prosecutors would clearly have been to ‘fess up.
Nobody knows better than they do when the jig is up, and here they were without a leg to stand on.
They refused to take responsibility for their gross abuse of office, however, and claimed that they were untouchable under state law. Because the various deceptions and counterfeits to which they resorted were all part of a criminal investigation, they could not be sued. So they argued, but they were wrong.
Prosecutors enjoy absolute immunity for actions “intimately associated with the judicial phase of the criminal process,” the U.S. Supreme Court has ruled, but only for purposes of “protecting the proper functioning” of their office.
Federal judge Jane Triche Milazzo threw out the prosecutors’ claims of absolute immunity, noting that it never was intended to bless “systematic fraud,” and that “where a prosecutor has side-stepped the judicial process, he has forfeited the protections the law afford those who work within the process.”
Now that Milazzo has refused to dismiss the lawsuit, perhaps prosecutors ought to do what they always advise defendants to do — take their medicine and start behaving in the way we are entitled to expect from officers of an American court. Instead an appeal has been filed. Surely a waste of time.
Updated December 14, 2017
The ACLU of Louisiana sued Orleans Parish District Attorney Leon Cannizzaro for refusing to provide public records identifying the lawyers in his office who have issued or authorized false subpoenas, or documents that claim to be subpoenas but were not issued by a court. The suit seeks to compel the District Attorney to respond to an inquiry, sent on May 5, 2017, which requested documents sufficient to show the names and Louisiana bar numbers of those lawyers.
In response to the letter, Cannizzaro’s office said that his office “does not maintain” those records, suggesting that it would require a review of documents stored off-site. “The District Attorney should know what his lawyers are doing, and he must be able to find out if he wants that information,” said Marjorie R. Esman, Executive Director of the ACLU of Louisiana, who sent the May 5 letter. “We didn’t ask for the fake subpoenas; we asked for the names of lawyers who had issued them. Surely the District Attorney can find out what his employees are doing with a simple search of e-mail and document servers, if not by asking them directly.”
The denial letter sent by Cannizzaro is similar to denials sent to The Lens and to the MacArthur Justice Center, organizations which requested related but different information. The lawsuit seeks to compel Cannizzaro to supply the information, as well as reimbursement for attorneys’ fees and costs.
On July 11, 2017, the New Orleans Civil District Court today ordered Orleans Parish District Attorney Leon Cannizzaro to turn over public records from the past five years identifying the prosecutors in his office who have issued or authorized false subpoenas, or documents that claim to be subpoenas but were not issued by a court.
DA Cannizzaro subsequently appealed that order.
In December 2017, following DA Cannizzaro’s agreement to turn over public records to the New Orleans City Council regarding fake subpoenas issued by his office, the ACLU of Louisiana’s public records case (Esman v Cannizzaro) was dropped.