by Tim Cushing
Techdirt. / 2017-05-01 13:56
If defense lawyers did this, you can bet the local prosecutor’s office would be there in an instant to file charges. But since it’s a prosecutor’s office doing it, local prosecutors see nothing wrong with lying to witnesses to obtain testimony. Charles Maldonado of The Lens looks into the unethical practices of the Orleans Parish District Attorney’s Office.
The notice Tiffany Lacroix received in November had “SUBPOENA” printed at the top, next to a logo of the Orleans Parish District Attorney’s Office. It ordered her to meet with a prosecutor to discuss the upcoming trial of Cardell Hayes, charged with murdering former Saints player Will Smith.
“A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE,” it declared.
But it wasn’t authorized by a judge. It wasn’t issued by the Clerk of Court, which sends out subpoenas. And Lacroix wouldn’t have gone to jail if she had ignored it. In other words, it was fake.
According to the DA’s office, it’s done nothing wrong. Assistant District Attorney Chris Bowman says these documents used to trick people into talking to prosecutors are nothing more than "notices" or "notifications." He compares the use of fake subpoenas to methods used by other, more honest prosecutors’ offices, which use legal letterhead to make the same request, in a much more congenial tone wholly separated from false threats of arrest.
Bowman also says legal letterhead just doesn’t get as much cooperation as his office’s fake subpoenas, which he refuses to refer to as fake subpoenas. Instead, Bowman says these fake legal documents are just a more "formal" version of legitimate methods used elsewhere.
Of course, it’s easy to see how locals might be confused by this "more formal" request, which looks exactly like this [PDF]:
According to Bowman, the subpoenas that aren’t have been used for decades. Unlike the nicer, more ethical legal letterhead used elsewhere, the DA’s office’s faux subpoenas highlight the potential (but completely unenforceable) downside of blowing off local prosecutors. In big, bold letters directly under the word SUBPOENA is the following phrase: A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.
Subpoenas — the real ones — are used every day to compel cooperation. These aren’t the real thing, but come across as legitimate demands for cooperation backed with the threat of jailing. The real things are run by judges and issued by clerks. These pieces of paper — backed by zero legal authority — are issued by the DA’s office whenever a prosecutor wants to.
When recipients have challenged these before an actual judge, the DA’s office has finally done the right thing and secured an actual subpoena. But since they’re rarely challenged, the DA’s office has used them far more frequently than their legitimate, court-approved counterpart. And it’s not the only weapon in the DA’s arsenal, should it desire additional dialogue with people who shouldn’t need to fear being tossed in the clink. As the saying goes, "Don’t be a victim of a crime if you can’t do the time."
[E]arlier this month, the watchdog group Court Watch NOLA found several cases in which the DA’s office obtained arrest warrants for victims of crimes because they did not cooperate with prosecutors.
There seems to be no question this practice is unethical, but is it illegal? Unfortunately, there’s no clear answer. Defense attorney Anthony Ibert — who has appeared multiple times before judges to get the DA’s fake subpoenas quashed — theorizes it might be prosecutable.
Ibert said he thinks the fake subpoenas may be a type of forgery. The documents don’t include a judge’s name or signature. But Louisiana’s law on forgery includes “to alter, make, complete, execute, or authenticate any writing so that it purports … to be the act of another who did not authorize that act.”
Without a judge’s (forged) signature, forgery charges are a tough sell. (I’ll bet the DA’s office could make the charge stick… to itself… if it wanted to.) The good news is — without giving the DA’s office any credit whatsoever — prosecutors will no longer be using this deception to obtain interviews.
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.
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.
Unfortunately, this still sounds almost as mandatory. The Advocate — which first reported the DA’s change of heart in the face of bad press — wasn’t provided a sample of the new document. Hopefully, it will be free of statements that might lead recipients to believe they’ll be fined or jailed if they fail to "appear." Undercutting the grandiosity of the office’s slightly-less-dickish move is the statement accompanying the official statement.
“It’s an assertive invitation for you to come and talk to us,” Martin said.
Fun. Sounds like being "voluntold."
"Our obligation is to the community at large, not necessarily to the victims or the witnesses," said Assistant District Attorney Chris Bowman, a spokesman for the office. "We want to make the process both for victims and witnesses as user-friendly as possible, but we are not going to allow them to determine the future of the case."
For the good of the community, the DA’s office is going to misrepresent the mandatory-ness of requests for interviews. There will be no end credits statement to the effect of "no witnesses or crime victims were harmed during the course of this prosecution." So, things will get marginally better in Orleans Parish, where local prosecutors believe it’s better that ten witnesses or crime victims be pushed around by thuggish prosecutors than one guilty man go free.