Louisiana DA's Office Used Fake Subpoenas For Decades To Trick People Into Talking To Prosecutors

from the to-prosecute-omelets,-you-have-to-break-a-few-ethical-eggs dept

If defense lawyers did this, you can bet the local prosecutor's office would be there in an instant to file charges. But since it's a prosecutor's office doing it, local prosecutors see nothing wrong with lying to witnesses to obtain testimony. Charles Maldonado of The Lens looks into the unethical practices of the Orleans Parish District Attorney's Office.

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.

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.

According to the DA's office, it's done nothing wrong. Assistant District Attorney Chris Bowman says these documents used to trick people into talking to prosecutors are nothing more than "notices" or "notifications." He compares the use of fake subpoenas to methods used by other, more honest prosecutors' offices, which use legal letterhead to make the same request, in a much more congenial tone wholly separated from false threats of arrest.

Bowman also says legal letterhead just doesn't get as much cooperation as his office's fake subpoenas, which he refuses to refer to as fake subpoenas. Instead, Bowman says these fake legal documents are just a more "formal" version of legitimate methods used elsewhere.

Of course, it's easy to see how locals might be confused by this "more formal" request, which looks exactly like this [PDF]:

According to Bowman, the subpoenas that aren't have been used for decades. Unlike the nicer, more ethical legal letterhead used elsewhere, the DA's office's faux subpoenas highlight the potential (but completely unenforceable) downside of blowing off local prosecutors. In big, bold letters directly under the word SUBPOENA is the following phrase: A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.

Subpoenas -- the real ones -- are used every day to compel cooperation. These aren't the real thing, but come across as legitimate demands for cooperation backed with the threat of jailing. The real things are run by judges and issued by clerks. These pieces of paper -- backed by zero legal authority -- are issued by the DA's office whenever a prosecutor wants to.

When recipients have challenged these before an actual judge, the DA's office has finally done the right thing and secured an actual subpoena. But since they're rarely challenged, the DA's office has used them far more frequently than their legitimate, court-approved counterpart. And it's not the only weapon in the DA's arsenal, should it desire additional dialogue with people who shouldn't need to fear being tossed in the clink. As the saying goes, "Don't be a victim of a crime if you can't do the time."

[E]arlier this month, the watchdog group Court Watch NOLA found several cases in which the DA’s office obtained arrest warrants for victims of crimes because they did not cooperate with prosecutors.

There seems to be no question this practice is unethical, but is it illegal? Unfortunately, there's no clear answer. Defense attorney Anthony Ibert -- who has appeared multiple times before judges to get the DA's fake subpoenas quashed -- theorizes it might be prosecutable.

Ibert said he thinks the fake subpoenas may be a type of forgery. The documents don’t include a judge’s name or signature. But Louisiana’s law on forgery includes “to alter, make, complete, execute, or authenticate any writing so that it purports … to be the act of another who did not authorize that act.”

Without a judge's (forged) signature, forgery charges are a tough sell. (I'll bet the DA's office could make the charge stick... to itself... if it wanted to.) The good news is -- without giving the DA's office any credit whatsoever -- prosecutors will no longer be using this deception to obtain interviews.

On Wednesday, prosecutors announced they are dropping the ominous heading on those notices, acknowledging that the DA's Office does not have the authority to issue subpoenas by itself.

[...]

The DA's Office will now send a request called a “notice to appear” instead.

“I have today again gone out and said this is the only acceptable notice to appear that we will be sending to people,” First Assistant District Attorney Graymond Martin said.

Unfortunately, this still sounds almost as mandatory. The Advocate -- which first reported the DA's change of heart in the face of bad press -- wasn't provided a sample of the new document. Hopefully, it will be free of statements that might lead recipients to believe they'll be fined or jailed if they fail to "appear." Undercutting the grandiosity of the office's slightly-less-dickish move is the statement accompanying the official statement.

“It’s an assertive invitation for you to come and talk to us,” Martin said.

Fun. Sounds like being "voluntold."

Also this:

"Our obligation is to the community at large, not necessarily to the victims or the witnesses," said Assistant District Attorney Chris Bowman, a spokesman for the office. "We want to make the process both for victims and witnesses as user-friendly as possible, but we are not going to allow them to determine the future of the case."

For the good of the community, the DA's office is going to misrepresent the mandatory-ness of requests for interviews. There will be no end credits statement to the effect of "no witnesses or crime victims were harmed during the course of this prosecution." So, things will get marginally better in Orleans Parish, where local prosecutors believe it's better that ten witnesses or crime victims be pushed around by thuggish prosecutors than one guilty man go free.


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  1. icon
    That Anonymous Coward (profile), 1 May 2017 @ 11:57am

    We've secretly undermined the legal process & peoples faith in the system, lets see if we ever face charges (peals of laughter)

    Okay lets try that again, maybe this time we can stifle the laughter, the system never punishes its cogs & will turn itself into a pretzel to justify the unjustifiable.

    reply to this | link to this | view in thread ]

  2. icon
    That One Guy (profile), 1 May 2017 @ 11:58am

    A threat by any other name...

    “It’s an assertive invitation for you to come and talk to us,” Martin said.

    Calling an 'appear or else notice' an 'invitation' is rather like calling someone pointing a gun at your head and demanding your wallet a 'polite negotiation for the transference of funds.'

    If they have the legal authority to compel someone to come in and talk to them, then don't dress it up as a voluntary 'invitation', plainly state that it's a demand. If they don't have the legal authority to compel someone to come in and talk to them, then cut the implied threats and make it clear that it's entirely voluntary.

    They were engaged in fraud for decades, sending out notices containing legal threats that lacked legal backing, the only difference is a change in the words used. As the thinly veiled threat later on makes clear...

    "We want to make the process both for victims and witnesses as user-friendly as possible, but we are not going to allow them to determine the future of the case."

    ... 'No' is still not an acceptable answer.

    reply to this | link to this | view in thread ]

  3. icon
    Ryunosuke (profile), 1 May 2017 @ 12:23pm

    Always ALWAYS ALWAYS talk to your lawyer, or more preferable the circuit or court clerk about any document claiming to be from said court.

    reply to this | link to this | view in thread ]

  4. identicon
    Jason, 1 May 2017 @ 12:26pm

    If kind of reminds me of the scare language some unsolicited mail will splatter all over the envelope to make it look official... the whole "it is a violation of federal law" and "penalty for unofficial use" thing which is just a reference (I forget the particular USC mention) to the law about tampering with the mail.

    Also...

    [E]arlier this month, the watchdog group Court Watch NOLA found several cases in which the DA’s office obtained arrest warrants for victims of crimes because they did not cooperate with prosecutors.

    How exactly could this have gone by unchallenged for so long? Sure, getting an arrest warrant doesn't seem overly difficult, but don't they have to at least specify what crime they're issuing the arrest warrant for? It seems like anyone trying to use "ignored a subpoena" as the reason ought to have run up against the obvious "what subpoena?" question.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonmylous, 1 May 2017 @ 12:42pm

    Courts?

    We don' need no steenking Courts!

    Seriously, we don't. This is patently unethical behavior the Louisiana State Bar Association could deal with. Hard to run your court system without any prosecutors, you might wanna take them down a peg and get them back on the ethical track before they get themselves disbarred there, Louisiana.

    reply to this | link to this | view in thread ]

  6. identicon
    Michael, 1 May 2017 @ 12:43pm

    Re:

    Unless you cannot afford to have anyone you can refer to as "your attorney". In that case, you aren't likely to find that anyone cares about your rights.

    reply to this | link to this | view in thread ]

  7. icon
    sigalrm (profile), 1 May 2017 @ 12:46pm

    Re:

    Sound advice for individuals who can afford to pay a lawyer out of pocket.

    It would be interesting to see a demographic breakdown of the individuals receiving these "Subpoenas"/"Notice to Appear" docs.

    I'd be willing to bet that the majority of them go to individuals who lack the financial resources to pay for an attorney, the education to know they should consult an attorney, or both.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous, 1 May 2017 @ 1:06pm

    No excuse for official oppression

    This is official oppression and it is a Felony. There is no excuse(lie) that can pardon this behavior.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 1 May 2017 @ 1:23pm

    Re: Re:

    ha ha ha...

    Jokes on you, your attorney does not care either! They only care about your money!

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 1 May 2017 @ 1:24pm

    Re: No excuse for official oppression

    no, but there are no authorities willing to prosecute it either!

    The people are busy living the dream!

    reply to this | link to this | view in thread ]

  11. icon
    D.C. Pathogen (profile), 1 May 2017 @ 1:34pm

    Dismiss all the related cases.

    Any case that uses information obtained while under one of these false subpoenas, is tainted and should be dismissed.

    Any prosecutor that used information obtained under one of these false subpoenas should be Jailed without due process.

    Nothing can justify falsely denying a persons liberty.

    Or is DOJ short for Department Of "Just put them in jail"?

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 1 May 2017 @ 1:51pm

    Re: Dismiss all the related cases.

    "Any prosecutor that used information obtained under one of these false subpoenas should be Jailed without due process."

    Contradicts

    "Nothing can justify falsely denying a persons liberty."

    This is a perfect example of why just this exact thing is going on. People have no problem trampling the rights and liberty of others when it suits them it seems.

    I cannot emphasize enough that any action taken to trample liberty or rights of the guilty is the same as trampling them for the innocent. It behooves society at large to observe the rights and liberty of the most scoundrel among us, because the rights and liberty you take from them, are also taken from the innocent because in the eyes of the law, all are guilty and waiting to be caught!

    reply to this | link to this | view in thread ]

  13. icon
    Uriel-238 (profile), 1 May 2017 @ 3:03pm

    My fantasy outcome...

    Would be for all Louisana court documents to start with mandated disclaimers

    THIS IS NOT A SUBPOENA

    THIS IS NOT A COURT ORDER

    THIS IS NOT A WARRANT... (excepting, of course, those documents that are.)

    I'd suggest even a pronouncement at the header page of what person of authority is responsible for the document. To be initialed by that person, of course.

    Here in California, some district attorneys got over ambitious with some vaguely worded prostitution laws and applied them to porn production.

    After a long, arduous court process (bankrupting some porn moguls in the meantime), we ended up with precedents, then ordinances in which porn production is specifically endorsed as protected speech in California, and as a result we are the porn capital of the world.

    And the more prudish of us find this embarassing, that the California code specifically addresses and covers pornography, a legacy and reminder of what happens when law is subverted.

    I'm sure that when every single document going through a Louisana attorneys office has to state in bold caps what it is or isn't and what specific person is responsible for filing it, it would serve to remind those attorneys the consequences of subverting the system for a few collars.

    reply to this | link to this | view in thread ]

  14. icon
    mattshow (profile), 1 May 2017 @ 3:29pm

    "Assertive invitation" sounds like it comes straight out of United's phrasebook

    I bet if you decline their assertive invitation, they'll be happy to re-accomodate you to the nearest holding cell.

    reply to this | link to this | view in thread ]

  15. icon
    Wyrm (profile), 1 May 2017 @ 6:58pm

    assertiveness?

    “It’s an assertive invitation for you to come and talk to us”

    Let's see... Can we apply this defense more globally?
    Theft => assertive fundraising.
    Rape => assertive seduction.
    Kidnapping => assertive invitation.
    Torture => ah, they actually used that one before: enhanced interrogation.

    He's clearly an "ends justify the means" type of guy. That's sickening.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 1 May 2017 @ 7:45pm

    So these letters are like a DMCA notice? All threat, no action and no penalty?

    reply to this | link to this | view in thread ]

  17. icon
    DB (profile), 1 May 2017 @ 8:52pm

    How is this not a false document?

    The document has, as its title in giant letters, 'Subpoena'.

    It is issued by an officer of the court -- someone that is bound by the rules of the court.

    Someone receiving the document can only take it at face value. It appears to be a valid court order. They shouldn't have to question every document. And indeed they aren't allowed to. A judge wouldn't put up with people asking to see their credentials when coming into court, and having the judge swear that the credentials are true and correct statements.

    reply to this | link to this | view in thread ]

  18. identicon
    Michael OKane, 2 May 2017 @ 3:14am

    Is it a crime? Certainly, if they used the mails, a telephone or a computer.
    Tell a lie and lick a stamp? Elements met.

    reply to this | link to this | view in thread ]

  19. identicon
    Let's get real, 2 May 2017 @ 5:14am

    This is the same place where people were shot for trying to walk across a bridge to escape hurricane Katrina.

    reply to this | link to this | view in thread ]

  20. icon
    JustMe (profile), 2 May 2017 @ 8:19am

    "...not necessarily to the victims"

    No, pretty sure that is wrong. That is precisely who you are supposed to protect.

    reply to this | link to this | view in thread ]

  21. icon
    yankinwaoz (profile), 2 May 2017 @ 8:30am

    Not the only one?

    Wadda want to bet the NO Parish DA's office isn't the only DA's office doing this? DA's talk to each other. They relocate. They have conventions.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 2 May 2017 @ 9:43am

    Re: No excuse for official oppression

    It's certainly reprehensible behavior, but it's not a felony. There's no law, federal or state, that covers this kind of official bullying. In short, it's legal and the SCOTUS ruling of Frazier v. Cupp explicitly states that LEO/prosecutors are allowed to bluff (lie) to gain "voluntary" confessions.

    So you can stop with the bs hyperbole now. It's not helpful in ending such practices.

    reply to this | link to this | view in thread ]

  23. identicon
    Anonymous Coward, 2 May 2017 @ 10:32am

    Smells like actual fake news

    So I have a few problems with this story, first is the original source itself. I've never heard of them, that right there concerns me. The lack of corroborating sources is also a major concern, you would think a story like this would have made the local NOLA news. I've noticed a lot of seemingly trustworthy sources popping up that seem to reinforce stereotypes about the US: The south marries their cousins, NOLA is corrupt, etc. As such when I see sources like this I tend to be skeptical. The alternate source on this seems just as sketchy in my opinion.

    tl;dr: I think this is potentially fake news.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 2 May 2017 @ 12:23pm

    Re: Smells like actual fake news

    So who faked up the court documents?

    reply to this | link to this | view in thread ]

  25. identicon
    Sunhawk, 2 May 2017 @ 7:53pm

    There's also a little habit of prosecuting public defenders that they've been doing for a few years now...

    reply to this | link to this | view in thread ]

  26. icon
    Uriel-238 (profile), 3 May 2017 @ 7:15am

    BS Hyperbole? Are fake subpoenas not reprehensible?

    Surely you are not intending to suggest that an an action, behavior or policy is ethical or just because it has been determined to be legal.

    SCOTUS' Frazier ruling states that deception used in police interrogations don't make them inadmissible. They're still shady as fuck, and they still are used to get innocent people convicted and incarcerated.

    I suppose this is accceptable if you believe the DoJ's job is not to see justice done, but to thin the population of free persons in the United States and increase the US's already catastrophic incarceration rate.

    reply to this | link to this | view in thread ]

  27. identicon
    Anonymous Coward, 3 May 2017 @ 9:12am

    Re: Re: Re:

    The real joke is the idea that you have rights at all. As the government has shown time and time again, your "rights" are more like "privileges" that they can take from you at the slightest inconvenience.

    Rights (and Laws) have to be enforced or they are just as worthless as the paper they are written on.

    reply to this | link to this | view in thread ]

  28. identicon
    Anonymous Coward, 3 May 2017 @ 11:43am

    Tens of thousands of 'crimes' can now be undercut and voided due to this DA's actions. (any 'evidence' obtained via witnesses can now be struck out as invalid)

    Real criminals can seek to have their convictions quashed and seek compensation, and I hope they do.

    People like this scum shit DA deserve to have everything they own taken from them and to rot in prison for decades.

    reply to this | link to this | view in thread ]

  29. identicon
    Anonymous Coward, 3 May 2017 @ 11:44am

    Re: Smells like actual fake news

    re: smells like actual fake news

    ^ posted by an IP address from the DA's office.

    reply to this | link to this | view in thread ]


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