Appeals Court Says Prosecutors Who Issued Fake Subpoenas To Crime Victims Aren't Shielded By Absolute Immunity

from the dodging-one-court-to-get-reprimanded-by-two-others dept

For years, the Orleans Parish District Attorney's Office in Louisiana issued fake subpoenas to witnesses and crime victims. Unlike subpoenas used in ongoing prosecutions, these were used during the investigation process to compel targets to talk to law enforcement. They weren't signed by judges or issued by court clerks but they did state in bold letters across the top that "A FINE AND IMPRISONMENT MAY BE OPPOSED FOR FAILURE TO OBEY THIS NOTICE."

Recipients of these bogus subpoenas sued the DA's office. In early 2019, a federal court refused to grant absolute immunity to the DA's office for its use of fake subpoenas to compel cooperation from witnesses. The court pointed out that issuing its own subpoenas containing threats of imprisonment bypassed an entire branch of the government to give the DA's office power it was never supposed to have.

Allegations that the Individual Defendants purported to subpoena witnesses without court approval, therefore, describe more than a mere procedural error or expansion of authority. Rather, they describe the usurpation of the power of another branch of government.

The court stated that extending immunity would be a judicial blessing of this practice, rather than a deterrent against continued abuse by the DA's office.

The DA's office appealed. The Fifth Circuit Appeals Court took the case, but it seemed very unimpressed by the office's assertions. Here's how it responded during oral arguments earlier this year:

“Threat of incarceration with no valid premise?” Judge Jennifer Elrod said at one point during arguments. She later drew laughter from some in the audience when she said, “This argument is fascinating.”

“These are pretty serious assertions of authority they did not have,” said Judge Leslie Southwick, who heard arguments with Elrod and Judge Catharina Haynes.

The Appeals Court has released its ruling [PDF] and it will allow the lawsuit to proceed. The DA's office has now been denied immunity twice. Absolute immunity shields almost every action taken by prosecutors during court proceedings. But these fake subpoenas were sent to witnesses whom prosecutors seemingly had no interest in ever having testify in court. This key difference means prosecutors will have to face the state law claims brought by the plaintiffs.

Based upon the pleadings before us at this time, it could be concluded that Defendants’ creation and use of the fake subpoenas was not “intimately associated with the judicial phase of the criminal process,” but rather fell into the category of “those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.” See Hoog-Watson v. Guadalupe Cty., 591 F.3d 431, 438 (5th Cir. 2009)

[...]

Defendants were not attempting to control witness testimony during a break in judicial proceedings. Instead, they allegedly used fake subpoenas in an attempt to pressure crime victims and witnesses to meet with them privately at the Office and share information outside of court. Defendants never used the fake subpoenas to compel victims or witnesses to testify at trial. Such allegations are of investigative behavior that was not “intimately associated with the judicial phase of the criminal process.”

Falling further outside the judicial process was the DA's office itself, which apparently felt the judicial system didn't need to be included in its subpoena efforts.

In using the fake subpoenas, Individual Defendants also allegedly intentionally avoided the judicial process that Louisiana law requires for obtaining subpoenas.

The case returns to the lower court where the DA's office will continue to face the state law claims it hoped it would be immune from. The Appeals Court doesn't say the office won't ultimately find some way to re-erect its absolute immunity shield, but at this point, it sees nothing on the record that says prosecutors should be excused from being held responsible for bypassing the judicial system to threaten crime victims and witnesses with jail time.

Filed Under: fake subpoenas, immunity, louisiana, orleans parish, prosecutors


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  • icon
    Anonymous Anonymous Coward (profile), 6 May 2020 @ 11:54am

    Have another go

    Absolute immunity down but not out. Up next the qualified immunity argument presented with the 'uh, we forgot to mention...' absolute immunity redux.

    Stay tuned for the rest of the Louisiana State Tap Dancing Championships.

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

  • identicon
    Anonymous Coward, 6 May 2020 @ 12:28pm

    "A FINE AND IMPRISONMENT MAY BE OPPOSED FOR FAILURE TO OBEY THIS NOTICE."

    If you receive one of these, you can oppose it! It says so right there on the notice!

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

    • icon
      Anonymous Anonymous Coward (profile), 6 May 2020 @ 12:33pm

      Re:

      Which proves only that the dolt that wrote the fake subpoenas didn't know how to spell imposed, nor ken the difference.

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

      • icon
        Scary Devil Monastery (profile), 7 May 2020 @ 5:31am

        Re: Re:

        I'm not sure what's more absolutely nuckfutz horrifying...that the office empowered to prosecute crime is perpetrating organized fraud to meet it's conviction quota...
        ...the the apparent implication that the ones employed in said office are dumb enough as to fail to meet the criteria of basic english comprehension...
        ...or the fact that having been caught with their hands in the cookie jar the assumption that sitting judges would applaud and bless an attempt to usurp the powers of the court of law - in official writs, no less.

        Criminal, dumb and shameless does not strike me as good qualities for anyone employed in law enforcement. I can only hope this is something specific to Louisiana, possibly as part of some charming local tradition of "all in good fun"-style tomfoolery?

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

  • identicon
    Anonymous Coward, 6 May 2020 @ 1:04pm

    Absolute immunity isn't supposed to be real.

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

  • icon
    Khym Chanur (profile), 6 May 2020 @ 1:05pm

    But these fake subpoenas were sent to witnesses whom prosecutors seemingly had no interest in ever having testify in court.

    Wait, what?

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

    • icon
      Scary Devil Monastery (profile), 7 May 2020 @ 5:34am

      Re:

      "Wait, what?"

      Well, if your district attorney doesn't know what the law is, can't write proper english on the faked subpoenas, and fails to realize an actual court of law might take exception to attempts to write the concept of "judge and jury" out of the concept of law enforcement...

      ...maybe it's not too surprising to find they don't have a clue who they'd like to call as witnesses either?

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

  • identicon
    Anonymous Coward, 6 May 2020 @ 2:24pm

    Disbarment

    I assume the lawyers associated with this mess have already been disbarred. I only assume that would be the case if LA cares about the reputation they are spreading about that state. If those lawyers are still able to practice in LA, then it must be perfectly fine to claim powers not allowed by law.

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

    • icon
      Upstream (profile), 6 May 2020 @ 5:14pm

      Re: Disbarment

      Bar Associations have been known to be very intolerant of even slight technical transgressions, such as being late to inform them of a change of address. But it seems they rarely even notice abominations such as these. If prosecutorial misconduct actually got prosecutors disbarred, then an actual licensed prosecutor would be a rare bird, indeed.

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


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