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 5^th 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.