
Louisiana prosecutors are using fake subpoenas to pressure witnesses to talk - user982
http://thelensnola.org/2017/04/26/orleans-parish-prosecutors-are-using-fake-subpoenas-to-pressure-witnesses-to-talk-to-them/
======
pc86
> _The notice came from District Attorney Leon Cannizzaro’s office. His
> prosecutors are using these fake subpoenas to pressure witnesses to talk to
> them — a tactic that defense lawyers and legal experts said is unethical, if
> not illegal._

The fact that the DA's office, which _does not issue subpoenas_ , can mail to
witnesses a document which says "SUBPOENA" is bold lettering and threatens
arrest, is not on its face obviously and flagrantly illegal, is shocking to
me.

In a just world everyone in the DA's office who had a hand in this and had the
authority to stop it would be charged with falsifying court documents, witness
tampering, or whatever other crime(s) were committed in doing this.

~~~
wccrawford
Beyond the fact that it should be illegal, it's _stupid_.

It's going to teach people that they might not have to comply with subpoenas
because of all the fake ones. At the very least, people will be more inclined
to wait until they have a lawyer before speaking with the police, which is the
opposite of what they want.

But it's also likely to cause people to ignore real subpoenas, which will not
only hurt them but also the court cases that they were supposed to testify at.

It's incredibly stupid.

~~~
mcherm
I disagree.

It won't really harm the prosecutors and police. They'll still be able to
bring the full force of the law against anyone who violates an actual
subpoena. In fact, it allows them to successfully prosecute a few more people
(those who didn't respond to a subpoena). And stories about THAT will just
terrify people and make them more likely to comply with requests from police
and prosecutors (because they don't know whether such requests have the force
of law).

So the impact on society may be quite harmful, but the impact on PROSECUTORS
is completely positive.

~~~
Declanomous
I'm inclined to side with you on this one. I took a linguistics class called
_Language and the Law_. The takeaway was that the legal system is quite
generous when interpreting language from the side of _The Law_ , and very
strict when interpreting the language of those on the other side.

I imagine you _might_ be able to avoid the consequences of ignoring a subpoena
if your lawyer was very good, and hired the right experts to testify on your
behalf, but I wouldn't bet my house on it. And legal fees can easily be as
much or more than a mortgage. (IANAL)

A substantial portion of the reading for the class was from Language in the
Legal Process[1]. I'd highly recommend the book if you are at all interested
in legal language from a linguistics standpoint.

[1] [https://smile.amazon.com/Language-Legal-Process-J-
Cotterill/...](https://smile.amazon.com/Language-Legal-Process-J-
Cotterill/dp/140393388X)

------
tcj_phx
Prosecutors have a tough job. Prosecuting people who've hurt other people is
the easy part of their job. Prosecuting people who haven't hurt anyone but
themselves (self-medication w/ the street pharmacy), or who've become
dependent on alcohol just to feel 'normal' [1]... Maybe prosecutors have to
have a cruel streak to stick with the job after the novelty wears off.

[1]
[https://news.ycombinator.com/item?id=14085230](https://news.ycombinator.com/item?id=14085230)

Sometimes people call the police for help. Years before I met her, a friend of
mine got out of control, and her family called the police (maybe her
'craziness' was because she was starting to go through menopause). The police
couldn't do anything but take this woman downtown. Her daughter protested,
"THIS IS _NOT_ WHY WE CALLED YOU", but the officers were like, "whatevers". If
all you've got is a hammer, everything is a nail.

Prosecutors' job is frequently to compound the wounds inflicted by the public
servants. They do this with the gusto of a true-believer.

~~~
Pyxl101
> The police couldn't do anything but take this woman downtown. Her daughter
> protested, "THIS IS NOT WHY WE CALLED YOU", but the officers were like,
> "whatevers". If all you've got is a hammer, everything is a nail.

Sounds like her daughter might have had incorrect expectations for what it
entails to call the police, though, unfortunately. The purpose and function of
calling the police is generally to bring lawful force to bear against someone
who has committed a crime. Any time you call the cops on somebody, it should
be done with the expectation that they may be arrested and taken to jail,
regardless of your intentions when making the call.

Police are not therapists and their job is not to resolve domestic disputes
like a guidance counselor. While we might wish that this is what police would
be, and while this is how excellent police might behave, in small-town
settings, when you scale the system up to cities of millions, the function of
police tends toward that of enforcing the law through use of force.

When you scale the police system up, it means the officers don't have a
personal relationship with the people who call them, and they're going into a
situation with no context. We can't fairly expect them to pass judgment on the
spot about how a domestic dispute should be resolved when there's ambiguity
and no law has obviously been broken - the courts are for handling nuanced,
contextual situations like that where facts need to be determined, and
fairness weighed. Anything less deprives one party of their rights.

Police also need to prioritize their time, because big cities are filled with
constant real crime like theft, most of which is already never investigated
due to lack of resources. In my mind, actual thefts (that deprive people of
property and rights) are a substantially higher priority than resolving social
disputes. Any time a police spends on social disputes is time taken away from
fighting meaningful crimes that have obvious victims.

So from my perspective one should generally not expect the police to intervene
for anything less than a law obviously being broken.

With this perspective in mind, police are a pretty "binary function". You call
them because someone has broken the law and you need to bring society's force
to bear against them, typically by giving them e.g. a lawful order to leave
the premises of property you own, or by arresting them and taking them to
jail. They are not "for" any other purpose. This is of course is _not_ a
defense of police taking people to jail for no reason in situations where they
are called inappropriately, but I'm saying this to share my life experience in
the hopes that it will set useful expectations for others: generally don't
call police on someone unless you're willing to send them to jail.

~~~
keithpeter
UK: policing is a bit different here but police officers do often refer people
to what is left of Social Services and the local hospital when needed.

In your location, if urgent intervention was required to help a relative in a
situation like the one outlined in the grandparent post, what agency would be
the best one to contact?

~~~
Nexxxeh
Our policing is done by consent. Also the police are arguing (I would wager
correctly) that they're taking the brunt of the effective cuts to mental
health provisioning in the NHS.

Over here (England and Wales) if someone was an immediate danger to themselves
or others, I'd call 999 and be put through to the Police operator and explain.

If the person I was calling regarding wasn't an immediate danger, in theory
I'd ring 111, but in practice I'd ring Mind because I've had extremely
negative experiences with NHS Direct.

------
Spoom
Ah, I get it. The prosecutor's office wasn't getting real subpoenas from a
judge (which would have been easy enough to get in most cases) because it
would have required that _the defense also have access to the testimony_ as
well as the ability to cross-examine. This way, the prosecution gets an ace in
the hole to use at trial or plea bargaining.

That has to be pretty illegal, right?

~~~
turc1656
Yes. Particularly with the way they did it. If they instead went through
police detectives, I believe detectives aren't required to turn over every
single thing they have during discovery. So they could legally keep the notes
of a conversation they had with a witness to be their own, or simply not make
notes on it in the first place so they have nothing to hand over. I believe
that would be totally legal.

What they did here violates the judicial process as you mentioned in a very
horrible way.

------
mpweiher
Did I mention that the US has become a police state?

\- 3 felonies a day (so 100% prosecutorial discretion)

\- NSA etc. mean they can access those 3 felonies if they want to, quite a bit
into the past

\- 95% plea bargain rate (more of same)

\- prosecutors behave criminally

Yay!

~~~
geofft
The US has also figured out how to avoid _looking_ like a police state by
talking the talk on merit and individual responsibility and so forth, and
making sure to exercise its policing powers very rarely towards certain
segments of the population. That isn't even the _majority_ of the population,
just the subset that the majority thinks they could / should grow into, and is
convinced that if they don't, it's a personal failing and not any structure of
society (cf. "temporarily oppressed millionaires").

------
CodeWriter23
Meh. My bestie has worked the county counsel office in two different counties.
He told me it is standard practice for court clerks to hand out stacks of
blank, pre-signed subpoenaes to any attorney, government or private practice.
Of course the caveat is if you abuse them, there will be, trouble.

~~~
infosample
Breaking the law by those enforcing it is meh?

~~~
CodeWriter23
That's the reality of an overwhelmed court system, they make choices to
optimize. It's a system of trust, balanced by a Judge reporting abusive
attorneys to The Bar, which means most subpoenas are actually what a Judge
would sign.

In the case of this Louisiana Prosecutor, it seems like perhaps the courts are
so overwhelmed they can't even get stacks of pre-signed subpoenas so they
write their own. And the article states that when said Prosecutor has been
called on it, a Judge issues a real subpoena. So yeah, meh.

~~~
TallGuyShort
So people waive judicial oversight to make things go faster, and when that's
not fast enough they just commit fraud, but it's not occurring to them that
maybe they should break fewer laws themselves and choose fewer criminals to
prosecute?

~~~
mikeash
Then they end up unemployed.

You see this pattern all over the place. Bosses want to break the rules but
don't want to get in trouble for it. The solution is easy: give the workers
goals that are impossible to meet without breaking the rules, while
simultaneously telling them how important it is to follow the rules. Voila,
your workers break the rules on their own initiative, and you're not culpable.
Those who refuse to do so can be fired, totally legally, for not meeting their
goals.

For example, you want your workers to put in a lot of overtime but you don't
want to pay for it. If you tell them to do that, it would be illegal! So
instead, you tell them that they need to produce this much output per week,
and also tell them that if they clock in more than 40 hours per week they'll
be fired. They'll start working off the clock on their own, and since they'll
be fired if you find out about it, you'll remain safely ignorant!

It's no surprise that the same sort of thing would happen in prosecutors'
offices. If they don't put away enough criminals, they'll be out of a job.
They'll break the rules to do so, and keep it quiet so they don't get fired
for _that_. And it's all according to plan, since the people in charge don't
really like how the rules protect criminals.

~~~
logfromblammo
That reminds me of that one time I was an Arstotzkan border crossing agent.
The agents got paid by the number of people processed, and the party bosses
kept adding new rules and requirements for processing people. So I had to
alternate the days my family could eat with the days they could be warm.

It was that or break the rules. And a loyal Arstotzkan citizen would _never_
do that.

(Papers, Please!)

Real-life systems are set up to encourage people to break the rules _all the
time_. Consider it a dark pattern of governance.

------
d883kd8
This is the same DA office where they have tactically brought criminal charges
against public defenders and investigators: [https://www.theguardian.com/us-
news/2017/may/01/prosecuted-l...](https://www.theguardian.com/us-
news/2017/may/01/prosecuted-law-new-orleans)

------
DanielBMarkham
What an odd statement this is:

 _" 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."_

It sounds a lot like "We're big believers in using evidence and witnesses to
prosecute cases, but we're not about to let any of that deter a successful
prosecution where one is warranted"

I'm sure they don't mean it that way, right?

------
turc1656
Violating the Code of Criminal Procedure should carry disbarment, at minimum.
Include the very reasonable cases that could be made for fraud and/or forgery
(depending on the wording of the law(s) in that state) and things get even
more serious.

What's not mentioned is the possibility of a violation of section 242 under
title 18 of the Federal code
([https://www.law.cornell.edu/uscode/text/18/242](https://www.law.cornell.edu/uscode/text/18/242)).
For practical purposes, that's a hell of a stretch, I admit. But it really
shouldn't be. My reasoning is that the government here is forcing people to do
something that it doesn't have the authority to force them to do, that may
very well be a violation of this law. They are restricting your freedoms
without the authority under law to do that. The question becomes whether or
not the restriction of freedom(s) from these fake subpoenas counts as a
violation of the "rights, privileges, or immunities secured or protected by
the Constitution or laws of the United States". And I don't know the answer
with certainty. A constitutional lawyer would have to weigh in on that. I
imagine it would, though, because these people are effectively being forced to
show up somewhere when they had no intention of doing so with people they
never wanted to meet and forcing them to speak by answering questions they did
not want to answer. That sounds like a first amendment violation to me.

------
kens
This reminds me of how San Jose would use fake lab documents to trick
defendants [1]. This came to light when a fake lab report was actually used as
evidence in a trial; supposedly the detective who created it forgot it was
fake [2]. This doesn't seem like it should be legal.

[1] [http://www.mercurynews.com/2007/12/23/fake-lab-reports-
were-...](http://www.mercurynews.com/2007/12/23/fake-lab-reports-were-common/)

[2] [http://www.mercurynews.com/2007/12/16/sex-case-hinged-on-
pho...](http://www.mercurynews.com/2007/12/16/sex-case-hinged-on-phony-lab-
report/)

------
pizza
Is
[https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree](https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree)
applicable?

~~~
matt4077
I don't know the answer to your question, but let me just point out how
awesome the "Fruit of the Poisonous Tree" doctrine is.

There are very few countries where that idea is as much a force as it is in
the US–it's theoretically possible, but courts often shy away from applying
it.

I think it's a testament to the integrity of the US court system that they
routinely let people off the hook, even when it is proven that they committed
a serious crime. They are serving a higher goal, but they do so in the face of
stiff public opposition ("The rapist got away on a technicality").

~~~
wonderwonder
The only people let go on a technicality are those that can afford a good
attorney. People with a public defender will almost always plead out because
their overworked and under paid attorney advises them too.

The public defenders have hundreds of clients a year and are often only able
to provide each client with a day or so of attention.

If you are poor and accused of a crime odds are you are going to be found
guilty. If you are rich and accused of a crime, odds are you have a good
attorney who has the resources and connections to find that "technicality"

~~~
tracker1
That's why I think public defenders and prosecutors should be from a common
pool, and that if their conviction/release rates are too lopsided, they are
let go.

~~~
wonderwonder
I really like this idea.

------
sheraz
Sounds like this is an opportunity for a SVaaS (Subpoena Verification as a
Service).

(I'm joking -- right up until the point where I am not)

I'm not even sure how one would verify that a subpoena is valid.

I suppose the same goes for verifying badge numbers for police, fire
marshalls, city inspectors, etc.

~~~
gonzo41
Thats not the issue, Lawyers and the like are extremely resistant to
digitization. If you said we'll have a live database of all active subpoenas
that anyone could read the types of fights you'd have with the legal
profession would astound you.

Everything runs on written signed letters and the post.

Interesting fact, Barristers used to get paid by the inch of paper in their
brief, so when you read old law and its verbose as f __k. you just know
someone was on the clock running up the hours.

~~~
Zak
_Everything runs on written signed letters and the post._

If you have relevant insight, why is that? Digitization makes most
information-oriented work easier and it stands to reason this would be true
for law as well.

~~~
taormina
Well, the lawyers should know that digitizing it means that they are liable
and provably so.

~~~
Zak
I don't think lawyers generating paper documents, signing them and then
denying their authenticity is a widespread practice.

~~~
a3camero
There are very few disputes about authenticity of records. And communication
between lawyers is often done on a "without prejudice" basis where it won't be
introduced later as evidence. And despite the love of paper, lawyers do most
of their communications through email. The printed paper record is just the
tip of the iceberg when it comes to law.

------
JackFr
While this article refers to the DA's office, the history of police corruption
in New Orleans is astonishing. It's hardly surprising that there is virtually
no respect for the law.

[http://www.pbs.org/wgbh/frontline/article/fbi-officers-
stati...](http://www.pbs.org/wgbh/frontline/article/fbi-officers-stationed-in-
nopd-internal-affairs-unit/)

[http://www.pbs.org/wgbh/pages/frontline/law-
disorder/etc/cro...](http://www.pbs.org/wgbh/pages/frontline/law-
disorder/etc/cron.html)

------
ptero
I wonder if the offending DA can have his pants sued off his ass in a civil
case by one of the victims.

This might be the only option unless this gets enough national attention to
get the DA fired.

~~~
mcherm
The case has gotten _substantial_ national attention. Which, it turns out, is
enough to get the prosecutors to change their practice, but not enough to get
them to apologise, and _CERTAINLY_ not enough to burst the veil of
prosecutorial immunity. As for getting fired, it is normally an elected
office, so there is no such thing. Prosecutors have incredibly potent powers
in the US system with few if any checks and balances.

------
scrps
When a Prosecutor's ambition is tied to a career path that demands high
win/loss records, a "tough on crime" stance and constant but misinformed
public scrutiny (Nancy Grace, fetishized true-crime shows, etc, I don't mean
real journalism.) you are going to get misconduct and corruption as a career
advancement strategy.

------
mnm1
These are _prosecutors_. What do you expect? Integrity and ethics? Seriously?
From a position of unchecked, almost infinite power over others?

------
gumby
These same prosecutors are also attacking public defenders with fake criminal
charges: [https://www.theguardian.com/us-
news/2017/may/01/prosecuted-l...](https://www.theguardian.com/us-
news/2017/may/01/prosecuted-law-new-orleans)

------
teilo
My parents used to work in Louisiana doing PNG transmission line inspection.
They couldn't wait to get out of there. The amount of government corruption in
that state is staggering, and so this article really does not surprise me.

------
fencepost
Reading through this makes me wonder why there haven't been Bar complaints
against Napoli. Threatening opposing counsel in open court?

This may in part be a few bad apples, but it also sounds like that includes
the top of the pile.

------
ASlave2Gravity
This sounds like the plot for an Elmore Leonard novel.

------
pasbesoin
Well, some people need to be losing their law licenses -- toute suite. And
permanently.

------
ouid
if I ignore a real subpoena now, could that be considered entrapment?

~~~
bogositosius
Can you elaborate on your reasoning? I don't see how entrapment follows from
this.

~~~
ouid
The prosecutor's office sends me a fake subpoena, I discover that it is fake
and ignore it. They then send me a real subpoena, and not wanting to spend
money on another lawyer, I simply assume that this one is fake too. In fact,
without legal counsel, I have no real way of establishing which documents have
official power and which don't. Now imagine they arrest me for failing to
respond to real one they sent the second time, I have been deceived by law
enforcement into committing a crime, the very definition of entrapment.

~~~
bogositosius
I see what you're getting at. IANAL, but generally, the only purpose of an
arrest on a subpoena is simply to compel your appearance in court. The judge
could theoretically slap you with a contempt charge for not coming in on your
own but that isn't likely. At least not the first time around. But still, I
imagine it isn't pleasant to have guys in suits show up to take you to court
in handcuffs, so probably best to deal with it before it gets to that point.

By the way, it's very easy to tell which subpoena actually requires
compliance. It'll be the only one with a judge's name, signature, and
(hopefully) a court seal on it. Anything lacking a judge's signature could
theoretically be used as toilet paper. Ask anyone working at a big
corporation's legal department. They will be quite familiar with these self-
generated "administrative subpoenas." I'm sure Apple and Facebook throw these
out by the dozens every month from various prosecutors and law enforcement
entities and tell them to come back with a judicially issued version.

------
davidgerard
Cheap reblog of

[http://thelensnola.org/2017/04/26/orleans-parish-
prosecutors...](http://thelensnola.org/2017/04/26/orleans-parish-prosecutors-
are-using-fake-subpoenas-to-pressure-witnesses-to-talk-to-them/)

"Orleans Parish prosecutors are using fake subpoenas to pressure witnesses to
talk to them"

~~~
sctb
Thanks! We updated the link from
[https://www.techdirt.com/articles/20170428/20250437262/louis...](https://www.techdirt.com/articles/20170428/20250437262/louisiana-
das-office-used-fake-subpoenas-decades-to-trick-people-into-talking-to-
prosecutors.shtml).

------
Doxin
> The purpose and function of calling the police is generally to bring lawful
> force to bear against someone who has committed a crime.

Only in america.

> Their job is not to resolve domestic disputes

Only in america.

> Any time you call the cops on somebody, it should be done with the
> expectation that they may be arrested and taken to jail

Only in america.

Just because the American police force is _awful_ and only really good at
escalating situations doesn't mean that that's the best they can do.

The polices job is "Protect and Serve", not "Escalate and Worsen", if that
requires temporarily filling the role of emergency counselor so be it.

For example every dutch police car carries a couple teddy bears they can hand
out to children in traumatic situations such as car crashes. Sure you can
argue that it isn't the polices job to soothe children, but you'll be very
glad that they still do when it's your kid hurt.

~~~
duncan_bayne
"Only in America" is hyperbole. I'd buy "more frequently" but, realistically,
the advice is still sound in any part of the world: don't call the cops if you
don't want someone to get arrested.

For those down voting, here are the stats from Australia, courtesy Wikipedia:

"Data from the Australian Bureau of Statistics (ABS) shows that during the
2009/10 year police took action against 375,259 people, up by 4.8 percent from
2008/09 figures."

So, that's 375k "actions". Even if you assume that a lot of those won't end in
arrest, that's still a lot of arresting.

~~~
Doxin
> Only in America" is hyperbole.

Yes. Yes it is.

> The advice is still sound in any part of the world: don't call the cops if
> you don't want someone to get arrested.

The advice very much _isn 't_ sound in any part of the world, and I suggest
you go live in a place with a friendly police force for a while.

Your statistics prove nothing. You're taking a random country and asserting
that the statistics for that country are true everywhere. Furthermore without
arrest statistics it's a rather hollow argument.

~~~
matz1
Unfortunately it is the same in most of other part of the world, it is
dangerous to assume that police is your friend.

~~~
duncan_bayne
Yeah, have a chat to my Iranian friends about their experiences with the
Shah's police.

Not saying that America is that bad, but it bugs me when people explicitly
state that only America has a problem with policing. It's pretty widespread.

------
throwit2mewillU
These are the people who destroy democracy.

------
bogositosius
This really just boils down to a local version of this:

[https://en.m.wikipedia.org/wiki/Administrative_subpoena](https://en.m.wikipedia.org/wiki/Administrative_subpoena)

Administrative subpoena. This is common practice all over the country. Funny
that they quote a former NYC prosecutor who seemingly forgot that the NYC
district attorney offices issue self-generated pieces of paper saying
"subpoena" on them, too. Must have slipped his mind.

The only problematic part of this particular DA's use of these is the printing
of the legal threat. If a judge doesn't issue and sign a subpoena, it's
legally toothless. Claiming otherwise is a lie.

But just printing the word "subpoena" on a piece of paper that isn't signed by
a judge doesn't make it "fake," as the article so melodramatically declares.

~~~
geofft
It's a little different: an administrative subpoena is authorized by law (an
arbitrary agency cannot, in fact, just print the word "subpoena" on a piece of
paper and make it a subpoena), and that law is subject, like all laws, to
judicial oversight.

HN may be most familiar with the administrative subpoena in the form of the
National Security Letter, and such subpoenas _have_ been fought in court.

It's not great, to be clear. We should have all subpoenas / warrants require
individual advance approval by a judge. But there's a big difference between a
type of subpoena authorized by the legislature, used by the executive, and
subject to review from the judiciary (and subject to the entire law being
ruled unconstitutional, in theory), and the executive inventing the idea of
"administrative subpoena" on their own.

~~~
bogositosius
Yes, federal administrative subpoenas are an altogether different ballgame.
Those have teeth, even when not signed by a judge. But this is done at a local
level, too. New York criminal procedure law even specifically allows district
attorneys to self-issue witness subpoenas. No penalty for non-compliance is
specified though, so to bring you on by force they'd still have to go to a
judge for a material witness order.

I'm not saying I approve of the concept, but this is common practice, unlike
what many posters in this thread want to tell themselves.

