Lawyer says Orleans D.A. used a fake subpoena to pressure teenage victim
25th September 2017 · 0 Comments
By Charles Maldonado
The Lens
The Lens has uncovered two more cases in which the Orleans Parish District Attorney’s office appears to have given witnesses fake subpoenas — legally worthless documents apparently used for years to pressure people into talking to prosecutors.
In one case, a prosecutor delivered a fake subpoena to a teenage girl, the victim in an ongoing child molestation case, according to her lawyer.
After the lawyer told the D.A.’s office not to contact the girl directly, the prosecutor got a real subpoena and had it delivered to her at school. When the girl didn’t show for an interview, the prosecutor threatened to put her in jail.
The prosecutor in the case has said was he merely doing his job despite the victim’s refusal to cooperate. Her lawyer said his actions ended up victimizing the girl again.
“I think the prosecutor is engaging in unprofessional conduct,” said Bennett Gershman, a Pace University law professor and an expert in prosecutorial misconduct, “by using tactics that smack of heavy-handedness and harassment.”
The fake subpoenas ordered witnesses to meet privately with prosecutors. State law allows such meetings, but prosecutors must file a formal written motion saying why they need to talk to the witness, and a judge must approve it.
Instead, the D.A.’s office sent what it called “D.A. subpoenas.” They were labeled “SUBPOENA,” cited state law and threatened jail time and fines if witnesses didn’t comply.
But the documents had no legal authority. They were a ruse, essentially, to coax reluctant witnesses to talk to prosecutors.
“Maybe in some places if you send a letter on the D.A.’s letterhead that says, ‘You need to come in and talk to us,’ … that is sufficient. It isn’t here,” Chris Bowman, an assistant district attorney and spokesman for D.A. Leon Cannizzaro, told The Lens in April. “That is why that looks as formal as it does.”
Defense attorneys and legal experts said the practice was unethical, if not illegal.
“I would call it an epidemic,” Gershman said. “It strikes me as something that was fairly routine and not something that was irregular or abnormal.”
The Orleans Parish D.A.’s office announced it would stop sending the notices the day The Lens revealed the practice. Prosecutors in Jefferson Parish and on the North Shore sent similar notices; they too pledged to stop.
Cannizzaro’s office hasn’t said how often it used “D.A. subpoenas,” and it has refused to provide copies, saying it would be too hard to track them down.
So The Lens hit the streets. We handed out flyers at corner stores, churches and gas stations. We mailed postcards to people in parts of the city with high crime rates. And we searched court records for motions filed by defense attorneys seeking to throw out fake subpoenas.
In addition to the molestation case, The Lens has learned of another fake subpoena.
In that one, a shooting victim willingly met with prosecutors and told them he couldn’t identify the man who shot him and killed his stepfather. When the victim showed up at the D.A.’s office, he was handed a fake subpoena ordering him to return for another private meeting the morning of the trial.
Those two new cases come on top of the four we have reported already:
• Tiffany LaCroix, a girlfriend of Cardell Hayes, received a fake subpoena weeks before Hayes’ trial for killing former Saints player Will Smith. Hayes was convicted of manslaughter.
• Fayona Bailey was verbally threatened with jail if she didn’t obey a fake subpoena. Her ex-boyfriend was charged and later convicted of murder in a bloody street shootout.
• Larry Bagneris got a fake subpoena days before an acquaintance was tried on a theft charge. Bagneris, whom the defense attorney considered calling as a character witness, said he went to the D.A.’s office and answered questions about the case. He never testified, and the woman was later acquitted.
• Prosecutors tried to jail a domestic violence victim in part for ignoring a fake subpoena. They later dropped the charges against her ex-boyfriend, a former New Orleans cop.
“We’re not talking about mistakes, accidents, inadvertence,” Gershman said. “These are clear and willful violations of the law that every prosecutor knows. … There should be sanctions. What the sanctions are, I’ll leave it to the courts or disciplinary bodies.”
Last month, the Southern Poverty Law Center filed ethics complaints against the Orleans and Jefferson D.A.’s offices over their use of fake subpoenas.
Charles Plattsmier, the state’s chief disciplinary counsel, said he couldn’t comment on those complaints.
He has asked every D.A.’s office in the state “to see if it was a widespread issue.” He doesn’t believe the practice extended beyond southeastern Louisiana.
Gershman said this is the sort of thing the U.S. Department of Justice could look into. A spokeswoman for the U.S. Attorney’s Office in New Orleans declined to comment.
Prosecutor delivers something ‘short of’ a real witness subpoena
The D.A.’s office has said fake subpoenas were a tool to deal with reluctant witnesses.
Louisa Pensanti, a Los Angeles lawyer who represents the victim of alleged molestation, said her client didn’t start out that way.
“She was treated so badly that she no longer wanted to go along” with prosecutors, Pensanti said. “She said, ‘I don’t want to testify. There’s no more for me.’”
Matthew Totaro, who knows the girl, is charged with molestation and child pornography. According to court records, investigators searched Totaro’s computer and found images of the girl naked and performing sexual acts on him.
In September 2016, Assistant District Attorney Iain Dover and an investigator showed up at the victim’s house in a neighboring parish, according to a transcript of a court hearing.
They brought a so-called “D.A. subpoena” ordering the girl to come to the D.A.’s office for an interview, Pensanti said.
The girl and her mother had retained Pensanti, who was recommended by a friend of the family, to act as a liaison between them and the D.A.’s office. The Lens is not identifying the girl or her mother because of the nature of the charges.
The Lens hasn’t seen the document delivered that day, but Dover described it in a court hearing. “The State went out to the house to attempt to contact the victim, short of issuing an Article 66 subpoena,” he told a judge.
The prosecutor didn’t explain what he meant by that. Later in the hearing, he called the document a “subpoena.”
The fake subpoenas used by the office purported to be “Article 66” subpoenas, named for the portion of state law that spells out their use.
Bowman did not grant our request to interview Cannizzaro or Dover about the case. He repeatedly refused to say whether the office delivered a fake subpoena.
In a written statement, he said the D.A.’s office “made numerous attempts to serve the victim with valid Court Notify subpoenas,” referring to the court’s subpoena tracking system.
However, Dover told the judge that prosecutors wanted the girl to come in for an interview, not to appear in court. And Court Notify records show just one subpoena was issued to the victim for the upcoming trial; it was mailed, not delivered in person.
What’s more, according to Pensanti, the prosecutor and the investigator opened the screen door to the house without permission so they could leave the notice in the foyer.
David Anderson, who was brought in to represent the girl locally, also alleged in court they had opened the front door.
Dover denied that. “The door was not open. It was ajar, but still within the frame. And at no time did the State of Louisiana or any representative, any law enforcement … open the door,” he said. “The door remained closed the whole time. We merely just stuck the subpoena in the crack.”
Pensanti said she has a video of the incident, but she didn’t provide it to The Lens. Bowman contended there isn’t a video.
Prosecutor said victim wasn’t cooperating
After Dover showed up at the girl’s house, Pensanti faxed a letter to the D.A.’s office. She told them she had instructed her clients not to talk to police or the D.A.’s office without an attorney from her office.
“Please honor their right to privacy, their right to be left alone. They do not want to be badgered, bothered or harassed by anyone from law enforcement in any way,” she wrote. “If you have any questions, please direct them to me.”
In the court hearing, Dover characterized the letter as a refusal to cooperate. He said it “stated that at no time did either represented party … wish to speak or be contacted by any representative of the District Attorney’s Office.”
Dover told Criminal District Court Judge Darryl Derbigny he was obligated to interview the victim to determine the facts of the alleged crime. That’s why, he said, he followed up on his earlier attempt to contact the victim by seeking a genuine Article 66 subpoena from the judge.
According to Dover, Derbigny granted his request. A subpoena was issued, ordering the girl to come to the D.A.’s office the next day.
Derbigny did not dispute Dover’s version of events. But there is no written motion, as required by law, in the case file. Nor is there any mention of a real Article 66 subpoena in the case notes, where clerks keep track of legal filings and judge’s orders.
Bowman said the D.A.’s office has a copy of the motion. He wouldn’t provide it because the case is still open.
Derbigny did not return requests for comment. Judges typically don’t discuss cases they oversee.
DA’s investigator shows up at girl’s high school
After the judge issued the witness subpoena, an investigator with the D.A.’s office and a local law enforcement officer showed up at the girl’s high school.
The girl was called out of class. The investigator gave her the real Article 66 subpoena, ordering her to come to the D.A.’s office the next morning for questioning. Under the law, if she didn’t, she could go to jail.
Pensanti said the girl didn’t understand why the men had shown up in such a “dramatic” fashion.
Gershman called it “outrageous” and said such tactics can alienate witnesses.
The girl was supposed to talk to prosecutors the next day. Instead, Anderson appeared in court with a motion to throw out the subpoena.
Anderson argued the girl shouldn’t have been served in person because she’s a juvenile and she had a lawyer. And, he said, it was unreasonable to give her less than 18 hours’ notice to come in.
Pensanti believes the D.A.’s office was trying to get around her demand to be in the room. “I was in California,” she said. “How was I supposed to be there on such short notice?”
Dover was apparently ready to follow through with the jail threat.
At the hearing, he told the judge the girl hadn’t shown up. He said he had called Pensanti’s assistant and said he’d get a warrant for the girl’s arrest if she wasn’t there by 11 a.m.
It didn’t come to that. But the D.A.’s office has come under fire for obtaining arrest warrants for crime victims.
Pensanti filed an ethics complaint against Dover with the state Office of Disciplinary Counsel, which investigates ethical breaches by lawyers. Its investigation did not result in discipline, Bowman and Pensanti told The Lens.
Ultimately, the two sides agreed to let the girl come in later. At this point, the case was more than two years old, and Pensanti said her client had already spoken to law enforcement.
“They wanted to have her re-interviewed.” Pensanti said. “And there was nothing to be re-interviewed about.”
The above article originally appeared on The Lens website (www.thelensnola.org). The Louisiana Weekly enjoys a partnership with The Lens.
This article originally published in the September 25, 2017 print edition of The Louisiana Weekly newspaper.
