Federal Appeals Court Denies New Orleans Prosecutors Immunity for Allegedly Threatening Witnesses with Fake Subpoenas

A federal appeals court in New Orleans has ruled that Orleans Parish, Louisiana prosecutors who illegally issued fake subpoenas to intimidate reluctant witnesses into cooperating in murder and other criminal cases are not immune from being sued for their misconduct.

The decision in Singleton v. Cannizzaro, issued April 21, 2020 by a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, upheld a federal district court’s ruling that refused to dismiss a civil rights lawsuit by witnesses and victims against parish District Attorney Leon A. Cannizzaro, Jr. (pictured) and eleven assistant district attorneys in his office.

The lawsuit, filed by the American Civil Liberties Union and Civil Rights Corps, alleges that Orleans Parish prosecutors routinely issued fake subpoenas to coerce victims and witnesses to appear for private interrogation by law enforcement, threatening them with arrest and imprisonment if they refused. The suit further alleges that prosecutors would then provide courts with falsified information to obtain “material witness” arrest warrants and jail the victims or witnesses under high bail unless they cooperated. In response, prosecutors sought to dismiss the case, arguing that their actions were shielded by prosecutorial immunity, which protects prosecutors from civil rights suits if they are acting on behalf of the state within their role.

The prosecutors’ “use of the fake subpoenas in an attempt to obtain information from crime victims and witnesses outside the judicial context falls into the category of investigative conduct for which prosecutors are not immune,” the court said.

“Today, the 5th Circuit made it clear that the prosecutors in the Orleans District Attorney’s Office should be held accountable for using fake subpoenas to threaten and coerce our clients,” said Civil Rights Corps lawyer Katherine Chamblee-Ryan. “This is a victory for each of those people whose lives they derailed, and now they can move forward with seeking legal relief for their suffering.”

Orleans Parish prosecutors have long been criticized for their high level of misconduct in capital murder and other cases. The practice of issuing “fake subpoenas” had gone on for decades under several district attorneys before it was exposed by the New Orleans publication. The Lens, in April 2017. A spokesperson for Cannizzaro said at the time that the “[t]he district attorney does not see any legal issues with respect to this policy,” but the office, followed by two other Louisiana parish prosecutors’ offices, immediately stopped issuing the orders.

Under the practice, witnesses in potential cases would receive notices that read “SUBPOENA” at the top and threatened jail time if the recipient did not cooperate. The notices in question were not approved by a judge or issued by the court, as Louisiana law required for an actual subpoena. “There’s no question this is improper,” Pace University law professor Bennett Gershman, a former prosecutor and expert in prosecutorial misconduct told The Lens.” Clearly, it’s unethical because the prosecutor is engaging in fraudulent conduct.”

Three of the plaintiffs in the case were potential homicide witnesses. According to the court’s opinion, an investigator from the D.A.’s office had allegedly pressured Lazonia Baham—whose daughter’s boyfriend was murdered—“to provide testimony that contradicted her memory of the events.” Baham received several fake subpoenas demanding that she appear for private interrogation sessions and, when she refused to comply, prosecutors obtained a material witness warrant and jailed her for more than a week.

Fayona Bailey and Tiffany LaCroix were potential witnesses in two different murder cases. Each, the court said, “received a fraudulent subpoena demanding a private meeting at the [D.A.’s office] prior to trial.” After the witnesses retained counsel who filed motions to quash the fake subpoenas, prosecutors withdrew the subpoenas and did not call either to testify at trial.

Several groups filed friend of the court briefs supporting the lawsuit, including one submitted by a bipartisan group of 36 current and former local, state, and federal prosecutors from 21 different states. The prosecutors told the court that affording prosecutors absolute immunity “for systemic fraud on the criminal justice system is against the public interest.” They said “the use of fraudulent subpoenas to compel information from victims and witnesses of crime … undermin[es] confidence in the fairness of the criminal justice system” and ultimately deters victims and witnesses from coming forward.

Official misconduct, usually accompanied by perjury or false accusation, has been a factor in all eleven Louisiana death-row exonerations in the past 40 years, including five in Orleans Parish. At least ten prisoners sentenced to death in the parish have had their death sentences overturned as a result of prosecutorial misconduct, including Michael Anderson, the last person sentenced to death under Cannizzaro’s administration.

In 2007, death-row exoneree John Thompson won a jury verdict for $14 million after suing the Orleans Parish District Attorney’s Office for prosecutorial misconduct. Four years later, in a controversial 5-4 decision, the U.S. Supreme Court reversed the verdict, ruling that the prosecutors had immunity from liability.