In fake subpoena settlement, Orleans DA’s office agrees to be placed under monitor
11th October 2021 · 0 Comments
By Charles Maldonado
The Lens
Orleans Parish District Attorney Jason Williams has agreed for his office to be placed under a court appointed monitor for three-and-a-half years as part of a settlement agreement — detailed in a Tuesday court filing — in a long-running federal civil rights suit over the use of fake subpoenas by New Orleans prosecutors under his predecessor, Leon Cannizzaro.
The monitor will oversee a series of policy reforms governing how his office interacts with witnesses and victims of crime, including a ban on the use of deceptive “subpoenas” and restrictions on when prosecutors can request the issuance of material witness warrants, which are used to arrest witnesses for allegedly refusing to cooperate in criminal cases.
“This settlement recognizes the harm that results when prosecutors operate with a ‘win at all costs’ mentality,” Tara Mikkilineni, a senior attorney at Civil Rights Corps who represented the plaintiffs, was quoted as saying in a Tuesday press release. “Prosecutors wield enormous power in the system and their actions are largely shielded from accountability. The courage of our clients in pursuing justice for the harms caused by Cannizzaro’s office cannot be understated. Thanks to them, the DA has committed to reforms including unprecedented oversight of the office.”
According to the press release, New Orleans civil rights attorney Katie Schwartzmann will serve as the monitor. Schwartzmann is the director of Tulane University’s First Amendment Law Clinic. She has previously served as the ACLU of Louisiana’s legal director and as lead counsel for the plaintiffs in a federal lawsuit that led to the Orleans Parish Sheriff’s Office consent decree.
In a prepared statement, Williams’ Chief Administrative Officer Tyronne Walker thanked Schwartzmann for agreeing to serve as monitor, as well as the plaintiffs and their attorneys “for bringing these issues to light and reaching a resolution that is in the best interest of all parties.”
“Not only does the settlement avoid the costs of a lengthy trial and a potential adverse judgment, but, perhaps more importantly, it formalizes various policies and best practices intended to reform and improve the DA’s office and the criminal justice system,” Walker wrote.
Civil rights attorneys with the ACLU and Civil Rights Corps filed the lawsuit in October 2017 on behalf of a group of witnesses and crime victims who said Orleans District Attorney’s Office employees, under then-DA Cannizzaro, sent them fake subpoenas, had them arrested under false pretenses, or both.
The suit followed an April 2017 report in The Lens that first revealed the existence of the bogus subpoenas. Prosecutors used the documents to pressure witnesses and victims into coming to private, off-the-record meetings to discuss their cases. They appeared to be true legal documents: they were marked “SUBPOENA” in bold font, referenced state law and threatened recipients with jail if they failed to comply.
But they were fake. They were not approved by a judge or issued by a clerk as the law requires. The same day The Lens published its first report, Cannizzaro banned the use of the so-called “DA subpoenas.” Later reporting by The Lens revealed that the practice went back decades, in one form or another, and at least two other DA’s offices — in Jefferson Parish and on the North Shore — were using similar tactics. Both stopped shortly after the articles were published.
Though Cannizzaro initially claimed that no one faced “legal consequences” for ignoring a fake subpoena, The Lens later reported on 2017 case where a prosecutor requested — and a judge issued — a material witness warrant against the identified victim in a domestic violence case, specifically citing a fake subpoena she had not complied with. The DA’s office dropped the case before the warrant could be executed.
But attorneys in the 2017 civil rights suit identified several more instances in which people were allegedly arrested after ignoring fake subpoenas, including one where a prosecutor had allegedly copied and modified a legitimate court subpoena, which the plaintiffs’ attorneys characterized as a forgery.
Several of the other original plaintiffs had settled their claims with the office previously — both while Cannizzaro was in office, and after Williams was inaugurated. Three plaintiffs — Renata Singleton, Lazonia Baham, and Tiffany LaCroix — remained in July when the DA’s office and plaintiffs’ attorneys announced that they had agreed on a settlement in principle and were working to finalize it.
Settlement terms
Along with a promise not to “create, disseminate, or otherwise use any document that purports to be a subpoena” but has not been legally authorized by a judge, the settlement agreement will place restrictions on when prosecutors can request judges issue material witness warrants, which are used to arrest witnesses who allegedly refuse to cooperate in criminal cases.
The use of material witness warrants by Cannizzaro’s office had become a major political issue just weeks before The Lens first reported on fake subpoenas. In early April 2017, the watchdog group Court Watch NOLA released a report showing that, in 2016, New Orleans prosecutors obtained warrants for several crime victims, including victims of sex crimes and domestic abuse. Some weren’t ever arrested. But a rape victim was and spent several days in jail, according to the report.
At the time, Williams was a New Orleans City Councilmember, and he, along with the rest of his colleagues, called on Cannizzaro to end the use of material witness warrants against crime victims.
In 2019, the Louisiana legislature passed a law that placed some restrictions on how they could be used to arrest victims of crime, banning them in misdemeanor domestic violence and sex crimes cases and tightening requirements for requesting them in other cases.
The settlement agreement goes even further, banning New Orleans prosecutors from requesting them in any misdemeanor case or against witnesses known to be pregnant or those with serious health issues. Prosecutors also will not request cash bail for witnesses arrested under material witness warrants.
In addition, the agreement prohibits the use of the warrants to arrest crime victims in felony cases, “unless exceptional circumstances apply.”
“The exception to this categorical prohibition on the use of material witness warrants against victims is meant to be extraordinarily narrow,” Mikkilineni wrote in an email to The Lens. “It also goes much further than current law in constraining the DA’s ability to use material witness warrants.”
Separate from the policy changes, the settlement has a financial component.
In consideration of the remaining plaintiffs, Williams’ office will pay $120,000 to the ACLU Foundation, in two $60,000 installments over the next year. The allocation of that money will be determined by the plaintiffs and their attorneys. And the office must create a new procedure for victims and witnesses to file grievances over their treatment by DA’s office employees.
And it requires prosecutors to keep better records of their contacts with witnesses and victims. That kind of recordkeeping was a problem during Cannizzaro’s tenure. Shortly after publishing its first article on fake subpoenas, The Lens requested records of their use during the preceding 16 months. That request was denied, with the office claiming that it did not track the use of the documents and finding them would be overly burdensome, requiring a manual search of tens of thousands of case files. The Lens successfully sued the office for the records, which took more than a year to produce.
Monitoring
Schwartzmann is set to begin work as monitor within 15 days of the settlement agreement taking effect.
The New Orleans Police Department and the Orleans Parish Sheriff’s Office are also under court-appointed monitorships, and have been since federal consent decrees were first approved for the agencies in 2013.
The agreement with the DA’s office is different from those other agreements, however. For instance, the U.S. Department of Justice is a party to both the police and Sheriff’s Office consent decrees, as a plaintiff. Williams’ agreement is only between his office, the individual plaintiffs and their attorneys.
In addition, the monitoring periods for both the police and the Sheriff’s Office are indefinite. Both keep monitors in place until, and for a period after, the agencies reach substantial compliance with their consent decrees.
The DA’s office, however, will only be under a monitor’s supervision for 42 months. And since both sides have agreed on Schwartzmann, there will not be a lengthy, politically fraught search for a monitor in this case.
Periodically during the monitoring period, Schwartzmann will be given access to data on the office’s use of material witness warrants, any grievances filed as well as other information, and will bring any instances of potential noncompliance to Williams’ attention. If the monitor believes the problem to be substantial, they will also bring it to the plaintiffs’ attorneys, who will be able to take the findings to the court.
The above article originally appeared in The Lens on its website (www.thelensnola.org). The Louisiana Weekly enjoys a partnership with The Lens.
This article originally published in the October 11, 2021 print edition of The Louisiana Weekly newspaper.
