Scammers made a small fortune off robocalls that purported to be from the IRS. They tapped into two things that characterize America: ignorance and fear. Some recipients of the calls had no clue that the IRS, not to mention the legal system, didn’t work that way, that they didn’t call up people to inform them they were going to be prosecuted unless they paid money. And people fear the IRS, that universally despised branch of government, that brutal bureaucracy, that can and will destroy lives.
Doubts? Sure. Want to roll the dice? A lot of nice people didn’t. Great way to run a government, guys. The New Orleans District Attorney’s office played a variation on the same game.
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.
To a criminal defense lawyer, this subpoena might fail miserably to suffice.
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.
But District Attorney Leon Cannizzaro’s people weren’t sending them to lawyers. They were being served on witnesses, whom his people wanted to scam. Not for money, but cooperation. On the one side, there was a very real district attorney’s office sending out very official-looking papers that included a very real word, Subpoena, and a very real threat, a fine and imprisonment. On the other hand, there was ignorance and fear. To avoid the problem, all a person had to do was cooperate, the path of least resistance.
And lest there be any doubt, it was, start to finish, a scam.
“There’s no question this is improper,” said Pace University law professor Bennett Gershman, a former prosecutor in New York City and an expert in prosecutorial misconduct.
“Clearly, it’s unethical because the prosecutor is engaging in fraudulent conduct,” he said.
Colin Reingold, an attorney with Orleans Public Defenders, said the practice “borders on fraud or forgery, and certainly I see ethical problems with compelling someone to come in under false pretenses.”
But then, of course that’s what they would say. What about the oft-repeated judicial approval of lies in furtherance of law enforcement? What judge hasn’t acknowledged that deception is a necessary tool? Don’t undercover officers lie? Don’t interrogators deceive? Isn’t it more important that we put the bad guys away?
Assistant District Attorney Chris Bowman, who serves as Cannizzaro’s spokesman, defended the use of the documents, which he called “notifications” or “notices.”
“The district attorney does not see any legal issues with respect to this policy,” he said.
What’s a lie if it serves justice, right?
Cannizzaro’s office deals with “an extraordinary number of cases,” he said, including many in which potentially crucial witnesses are reluctant to talk.
“Maybe in some places if you send a letter on the DA’s letterhead that says, ‘You need to come in and talk to us,’ … that is sufficient. It isn’t here,” he said. “That is why that looks as formal as it does.”
Makes complete sense, like maybe in some places, the cops have time to get search warrants, but they’re just too darn busy in NOLA, and if they just knock and talk, some people won’t let them in to search. As Radley Balko notes,* the NOLA district attorney has a long and sordid history of unlawful shortcuts in violation of law, for which it has suffered
serious consequences not at all when caught.
The issue raised by the use of these phony subpoenas has nothing to do with how busy they are, or how badly they would like witnesses to be more cooperative. Assuming, arguendo, both claims to be legit, what wasn’t legit was the use of what clearly appeared, and what they intended to appear, to be an official legal mandate, and that was a lie.
The word “subpoena” has a meaning, and it’s very official. The threat of “fines and imprisonment” has a meaning too, and it’s not only very real, but not at all unlikely given who is sending out these phony subpoenas. Were the recipients to run out and retain counsel to review the toilet paper and opine that they should put them to their only legitimate use?
So what distinguishes the NOLA District Attorney’s scam from the robocalling IRS scam? One is a real prosecutor with the real ability to make threats happen. But with the attention garnered by the revelation that this scam has been going on for, well, a long time, they’ve gotten religion.
After a lot of press attention, Cannizzaro’s office has acknowledged that it doesn’t have the power to issue these subpoenas, and has agreed to stop issuing them.
That’s very nice that they’ve agreed to stop engaging in a scam. Very kind of them. Thoughtful, even. Except that without a court ordering them not to scam witnesses, without disciplinary proceedings to hold unethical prosecutors to account by pulling their tickets, it remains up to Cannizzaro’s office, or his successor, to decide that they’ve changed their mind and the scam is back on. After all, it worked.
*In his post, Radley states that it’s not like the DA can’t get what he wants lawfully:
The thing is, a district attorney’s office can compel a witness to testify under penalty of arrest. It just needs to get a judge to sign off first. That’s a check on prosecutors, so they don’t abuse the power. Cannizzaro’s office just skipped over the “checks and balances” part. Because it can.
This is a quirk of Louisiana law. Elsewhere, it doesn’t necessarily work this way. While a legitimate subpoena can, of course, be used to compel testimony, these subpoenas weren’t direct to testimony in court of the grand jury, but were “office subpoenas,” where witnesses were required to come for a chat with the prosecutor outside of official channels. This can’t be accomplished by a subpoena absent statutory authorization.