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Louisiana prosecutors are using fake subpoenas to pressure witnesses to talk (thelensnola.org)
295 points by user982 on May 2, 2017 | hide | past | web | favorite | 137 comments



> 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.


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.


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.


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/...


I disagree that it won't harm the prosecutors and police.

The rest of what you said is exactly my point. Those people will get hurt because they now question some basic parts of our legal system. They might violate a subpoena that they mistakenly think is fake and end up on the wrong side of the law.

At the same time, those people are also hurting the court cases that they were supposed to attend.

Prosecutors who can't get their witnesses to come in to trial are going to have a bad time, even if they can later convict those people for violating a subpoena.

The only time it helps them is when people comply with the fake subpoena and talk when they didn't have to... And there's some serious question about the evidence that produces. It wouldn't be the first evidence thrown out because it didn't follow the correct protocols and/or violated civil rights.

And what happens when this all comes to light? Do they throw out every case where this appears to have happened, if it's found to be illegal?

To me, this is a complete negative for prosecutors in the long run.


If I couldn't be sure if the document was authentic, you can be sure I'd want proof of authenticity from the court before I complied. Throw the book at me if you like, I will present my case to the court. If it was proven that the department were issuing fraudulent subpoenas, shouldn't we treat all their subpoenas as questionable until proven otherwise? It seems like a perfectly reasonable response. Of course, IANAL and TINLA applies.


There are negatives in creating a situation where people that normally would talk to you without you jumping through hoops stop talking to you willingly and require you to jump through hoops.

Especially when the eventual new prosecutor wonders why they have to arrest everyone that is under subpoena to get them to respond.


You're arguing short-term consequences whereas the parent comment is arguing long-term consequences.


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I agree. I had a civil lawsuit where the opposing attorney gave a fake subpoena to one of my former employees to get him to testify. Nothing could be done about it.


IANAL, but this likely meets the standards for FRAUD: "A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury."

Misrepresenting a court or court officer may have criminal penalties as well.

I hope the LA state bar is reviewing (or will review) the attorneys that have done this.


> If a defense attorney did something similar, Williams said, “I guarantee you this DA would try to prosecute that defense attorney.”

Who watches the watchers?

We know now that we need to look for something like a notary stamp and judge signature on a subpeona, but we will never be as sophisticated in this domain as the DA's office, so they can probably easily trick us in other ways. The lesson I am inclined to take from this is to avoid interacting with a DA without a lawyer, similar to an investigator or a "curious" or "friendly" police officer.


The DA office can always just lie in person, mislead people (who cares if there's an official stamp; how many regular people know literally anything about the law?). At the end of the day if a prosecutor says "obey or you will be jailed" people will obey. If they did it to me and I couldn't afford a lawyer you bet I'd obey too. The only remedy is to seriously punish prosecutors who commit fraud like these ones are. Prosecutorial misconduct needs to be taken much more seriously and be much easier to convict on, since it's a national epidemic. Either that or the bar association needs to start taking their responsibilities seriously and ban people who do this from ever practicing law again.


IANAL, but this really sounds like document fraud and possibly mail fraud. If it is, then this DA could get up to 20 years per document.


You do have a point there. Mail fraud has been a federal offence since 1872.

However document fraud appears to be a little less black and white. Obviously I have no legal training and my interpretation is probably way off, but reading U.S. Code statute 1324c regarding document fraud, it appears to insinuate in subsection b that somehow law enforcement agencies are exempt.

https://www.law.cornell.edu/uscode/text/8/1324c

Perhaps you can interpret this more effectively than I can.


I didn't even think of witness tampering. Good one. I don't know enough about that law to know if it applies, but it definitely might. Add that to the list of violations for these dirtbags.


It may not be illegal because no-one thought anyone in a position of responsibility would consider doing anything like it, when the rules covering subpoenas were set up.


Sounds like time to lodge a complaint with the bar.


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

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.


A cruel streak perhaps, but even more problematic: a perverse incentive.

Came across an interesting somewhat contrarian argument recently in a New Yorker article reviewing a new book about mass incarceration in America:

So what makes for the madness of American incarceration? If it isn’t crazy drug laws or outrageous sentences or profit-seeking prison keepers, what is it? Pfaff has a simple explanation: it’s prosecutors. They are political creatures, who get political rewards for locking people up and almost unlimited power to do it.

http://www.newyorker.com/magazine/2017/04/10/how-we-misunder...


>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.

And yet, they manage to not be such bastards in other parts of the Western World (EU, Nordic countries, etc).


I know someone in the US who had to stop being a prosecutor because she "got sick of putting poor people in jail for no good reason".

In the US, those who aren't total bastards quit. Those that remain create a culture toxic to anyone with a conscience, and thereby perpetuate the vicious cycle. This is what makes it so hard to claw back from a corrupted government. Very few people have sufficient fortitude to endure corruption long enough to effect change from within.



>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

It sounds like she was having some sort of mental health episode - I wonder if it would have helped had the daughter requested an ambulance rather than the police? Where I live, whenever you call 911 for an in-home emergency the police are tasked to arrive first to make sure the residence is safe and then the paramedics and fire crews come in after. You're right about the hammer and nail, but by framing it as a medical emergency you can hopefully ensure the hammer is holstered when they arrive as they approach the incident as secondary support who will only intervene if there is real danger.


> It sounds like she was having some sort of mental health episode - I wonder if it would have helped had the daughter requested an ambulance rather than the police?

The mental health system does a good job of making people's situations worse too. I think it's infinitely preferable to be locked up in jail than in a mental hospital.

> but by framing it as a medical emergency you can hopefully ensure the hammer is holstered when they arrive as they approach the incident as secondary support who will only intervene if there is real danger.

good point... When I called for the firefighters to come revive my girlfriend (benzodiazepines amplify opiates, fyi), the police were also dispatched. After the firefighters left, the police officers decided they didn't need to make things worse, and their crew disappeared into the night too.

This did not happen the second time I called 911. This could also have been the difference between big-city police and small-town police...


Yes, it sounds like the approaches may be slightly different. My wife has needed ambulance care on several occasions due to an ongoing medical issue, so I've got to know the teams pretty well and one of the cops told me that whenever a male calls an ambulance for a female in my county the 911 dispatcher is instructed to assume domestic violence is involved and send the police as the advance party. I think our house has been flagged as "safe" now, as even though the cops still turn up it feels like more of a tick-the-box exercise these days and they no longer come to the door with their hands on their holsters.


> 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.


I'd recommend taking a few minutes to read the Peelian Principles [1]. What you state is how police actions are undertaken in the US. It is not at all what it could be, what it should be.

[1] https://en.wikipedia.org/wiki/Peelian_principles


Thank you, I had never heard of these principles, and they clearly do not match the modern behaviour of American policemen.


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?


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.


    > UK: policing is a bit different here
That's an example of typical British understatement, too.


To be frank, my response would depend on resources. If the person in crisis were insured, white, and living in a nicer part of town, I'd get them to one of the local hospitals.

If they didn't have the resources required to ensure someone would care and I thought it was something the person could get through, I'd recommend sedatives and try to find an appropriate charity.

The only time I'd ever call the police where I live now is if the situation were already life-or-death. There are places with departments where the cops aren't such wildcards, but I don't live in one of those, and every time I've been involved in a situation where cops were introduced into it, at best they were useless.


I'm from the states: Mental health situations are difficult. The only real options are calling an ambulance and/or the police (the police will often come with the ambulance). I was able to contact the hospital directly with my ex (he was schizo-affective), but that did depend on him being calm enough to willingly come with me.

Folks are often jailed on public disturbance and other charges instead of being taken to a facility - many facilities don't have enough space either.


I think your views on police are mostly appicable in the U.S. because the U.S. has (one of) the most militarized police force(s) in the Western world.

Your views do not match my experience in the Netherlands at all. My largest irritation regarding Dutch police is that they seem incapable of helping with bike thefts (even though all bikes have a mandatory unique ID), and sometimes they give you a ticket for carefully biking over pedestrian ways (excellent shortcuts) or for biking without a light.

However, I do think your post contributed to the discussion because the advice seems coherent and accurate for U.S. citizens and anyone planning on visiting there.


Why would you leave such a pleasant country and come to ours (US)?


I wouldn't, I don't even consider the U.S. for vacations because the only way in is through TSA country.

If I want to have my balls fondled by men in uniforms I can just go to Craigslist. At least then I'll have a safeword.


They don't fondle your balls... they take a picture of them through your clothes, that they "promise" will disappear in time.

Man, I really miss the 80's right now.


They do, though. They make the body scan and if you jeans with a suspicious 'steel' trouser button, or if they're made of thicker material than is most popular (so basically Levi's 501), you get the patdown, first your waist and then your inner thighs all the way up to your balls.

Literally 1/2 times I've flown I've had my balls touched. I wish I was kidding.


> 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.

Correct that to: any time you call the cops on somebody, it should be done with the expectation that someone may die, not necessarily the person you are calling the cops on. Maybe the situation is bad enough that that's already a possibility, in which case calling the cops might be better than the alternative. But when it's not? Please don't call the cops.


That seems incredibly paranoid. Let's say someone parks their car in front of my garage and blocks me in (and blocks the fire lane too), should I just wait it out and not call the police because somebody might die? This happened to a neighbor a few months ago. He called the police, and the only thing that happened was the car getting towed.

How about if you get into a car crash but nobody's dying immediately, don't call the police?

There are lots of situations not serious enough to merit getting someone killed where I'd call the police. I don't think that's crazy. I'm sure it some areas the police are terrible enough that this would be unwise, but those areas are the exception, not the rule.


If the driver is present when the cop arrives, the altercation can escalate to death. It takes two to argue, and you have no idea what the driver is going to be like, and what the cop is going to be like.

It's not likely to happen, but you're also not likely to be murdered in a traffic stop. Yet, it happens.

I believe you are legally obligated to contact the police in the event of a serious accident.


Turning on the stove or crossing the street can result in death. Should we perform those activities "with the expectation that someone may die"?

You're right that it's often a legal requirement to contact the police after a crash. But if "someone may die" then that seems like a good reason to break the law.


As others have said, it's not the same outside the USA. There's an entertaining TV show in Spain that depicts all kind of police situations, from domestic disputes to assaulting a drug capo's stronghold.

I can also attest by direct experience that the cool attitude they show on camera is the same one they have when nobody's recording.

In another show, we see a Spanish policeman as an observer in Miami and making interesting comments on the differences, including positive ones, compared to Spain.


It depends on which police force you are talking about as well. I live in Catalunya, and the local Mosos police force is the main police here. They have quite a few stories of bad hiring practices, silencing ex cops who speak up etc. However, I have also met good people trying make a difference, so I think it all comes down to who you talk to.

This whole police problem in the US looks to me like a few bad people that makes all cops look bad. Add to that, a biased hiring practice and coverup / protecting wrongdoers, and you get the situation you have in the US today where people don't trust the Police. It then becomes a worse and worse as the rift between civilians and police grows bigger.

I think the problem is really in management, where everything becomes political. No one wants to sound like they are soft on crime, so they all make speeches of fighting crime, war on drugs, etc. The wording says it all: "Fight Crime" and "War on drugs" are both very powerful messages, meaning more arms, more violence and not a peaceful solution. Add to this, the short time-spans of some of the turns that these people have in office, its no wonder that no one is trying to solve anything. It would take too long to see results, and they would not be in office or at least fear that they would not be in office. So, short turn patches get applied with a lot of force.

I don't know a solution, but at least we should look at removing as much of the political and financial pressures from police departments, let them hire better people (and yes they might leave after a few years, but that's just how things are now). We also need a cleaner and more transparent system to deal with wrongdoing, whatever happened to Internal Affairs? Are they still a thing? Have they lost power or have the political hands gotten involved there as well?


I haven't lived there, just visited Barcelona a few times long ago, but I did see some bad cases in the news.

About the USA, it's very difficult to judge. I do believe that centralized services are better in Spain-sized countries, not sure in something so big as the USA. Still, voting judges and local police seems so strange!


That's because the Mossos have developed their own "code of conduct" about regularly beating protesters, immigrants, prostitutes and poor people in general.


Out of curiosity, what are the titles of these shows? They sound cool!


Policías en acción https://www.youtube.com/results?search_query=policias+en+acc...

It's obviously in Spanish. Some of the situation are sad, but in others there is a touch of comedy. The most typical situation is when the perp lies blatantly about what we're seeing he's done.

I can't remember the title of the Miami police one, sorry.


>In my mind, actual thefts (that deprive people of property and rights) are a substantially higher priority than resolving social disputes.

You do know that "domestic dispute" isn't just an argument and is usually a euphemism for assault/battery, right?


In that case, police arrive on the scene where someone is or was being assaulted and arresting the attacker isn't a desirable outcome?


That is generally sub-optimal. Domestic violence is rarely a one-time event, rather it is a pattern of the relationship (and often the violence is reciprocal, so arresting just one of the two doesn't make sense).

Some form of social service intervention for the whole family would be far better than arresting one person.

After all, somebody abusing someone else likely doesn't handle stress and anger appropriately: nobody's life gets easier and more manageable after being arrested.


>After all, somebody abusing someone else likely doesn't handle stress and anger appropriately: nobody's life gets easier and more manageable after being arrested.

So longer prison sentences for domestic abusers then? Put them away long enough so the other party is forced to start their own life and no longer be in a situation where they are dependent on the abuser and thus unable to leave.


It's hard to prove what happened beyond a reasonable doubt when the crime is, pretty much by definition, performed in private, often with no witnesses, and when there are witnesses they're often subject to a tremendous conflict of interest.

Long prison sentences might help a few cases, but not most, because most won't be convicted in the first place.

It's important to help the victim directly, not just focus on removing the perpetrator, because the latter is likely never to happen.

Note also that because the situation is often so unclear to the police, sometimes both people involved to be arrested, or the victim is arrested and the perpetrator goes free. The latter is especially common when the victim is male.

So no, police arriving and arresting who they think is the attacker isn't necessarily desirable.


Don't forget that there's a significant chronological gap between being arrested and being imprisoned, and the latter is far from guaranteed.


Would a psychologist have a more immediate effect?


prison in the US is punitive, not rehabilitative.


To be a bit more fair, these are the expectations about US police, not in general. And even if you argue this is right (I disagree), at least make sure the expectations are intuitive. Many people call 911 in the "wrong" situations, unaware that they've done something stupid, when they called 911 to ask for help.

And by that I mean if "don't call police on someone unless you're willing to send them to jail" is the accepted and defendable function of police in the US, you should be able to have a nationwide public information campaign with that exact line on it. Because it seems not everyone got the memo.


Intuitively I don't think it's right that small-town police are less likely to use force in situations where it is not called for. I might even assume the opposite.


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?


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.


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!


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").


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.


This is disgusting...


Breaking the law by those enforcing it is meh?


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.


That's not 'meh', that's totally upside-down from what it should be and any and all searches and seizures based on those diy subpoenas should be challenged and subsequently thrown out, as well as court cases that went through to conviction of a defendant based on one of those should be vacated.

This is exactly the sort of thing you should always fight against because it is bound to lead to abuses, if the judicial system can't keep up then things should grind to a halt, rather than proceed unchecked.


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?


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.


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.


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...


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?


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). 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.


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-...

[2] http://www.mercurynews.com/2007/12/16/sex-case-hinged-on-pho...



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").


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"


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.


I really like this idea.


Considering the fact that the legal system has put away more people as prisoners per capita than any other country in the world, I would beg to differ.


"... they routinely let people off the hook..." [citation needed]


This is why corporatized, "media as entertainment" culture in the US is so dangerous. In reality, we live under a regime of insane violence and mass incarceration compared to other developed countries. But because the distinction between news media and "Law and Order" episodes is blurred in the minds of average Americans, people think everyone is escaping justice on a clever technicality vs. being forced to plead guilty to crimes they either didn't commit or are in excess of their actual offense (what really happens).


In theory. In practice, it's pretty much nonexistent. There's a long tweetstorm about it here: https://twitter.com/greg_doucette/status/821017618106744833 but the short version is that there are so many exceptions to the exclusionary rule (a.k.a. "Fruit of the Poisonous Tree Doctrine") that it might as well not exist for all the good it's likely to do you.


It doesn't work when the law enforcement just uses parallel construction to get untainted evidence. Illegal wiretap to get information on where to look for evidence.


> 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.

Here in NL it is very much in force and has led to some spectacular reversals in court. To the point where the police is now extra careful on how they get their evidence.


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.


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 fk. you just know someone was on the clock running up the hours.


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.


Because they make a ton of cash right now using old systems.

Why change?

Sure they email but anything that may be brought o bear needs ink on it. They don't see things through a prism of 'making the system better' I had a mate in NSW (Australia) who got a DUI, He had too show up to court for it, so he decided to turn up himself because he didn't have the cash for a solicitor and he planned to throw himself at the mercy of the court. It didn't work out so well, he got absolutely spanked for not having legal representation. And i think that was wrong, Sure throw the book at him for being and idiot and driving while pissed but 'showing the court disrespect' by representing himself is crazy.

When you consider that laws of the people are for the people. it drives me mad to see decisions go to a higher authority to be considered and decided. Laws are vague but they don't have to be. our legislators really fall down when they don't explicitly define in parliment a use case of the law side by side with it inception.


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


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


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.


From the article, it sounds like looking for a judge's or court clerk's signature should suffice. If they forge that, they've crossed a line that's not ambiguous. If it doesn't have that, it isn't a subpoena.


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/pages/frontline/law-disorder/etc/cro...


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.


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.


They have the closest thing to absolute immunity available.

You need a Duke Lacrosse[1] situation before anything would happen.

[1] Serious overreach coupled directed at camera-friendly victims with the resources to hire good, media-savvy attorneys.


Another avenue is a complaint to the state bar. This is an unethical practice.


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.


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


These same prosecutors are also attacking public defenders with fake criminal charges: https://www.theguardian.com/us-news/2017/may/01/prosecuted-l...


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.


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.


This sounds like the plot for an Elmore Leonard novel.


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


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


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


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.


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.


Always check the signature on a subpoena - if its a judge you can check with their office and see if they really signed it. If its forged this will get whoever served it in big trouble.


Cheap reblog of

http://thelensnola.org/2017/04/26/orleans-parish-prosecutors...

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



> 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.


Please don't post nationalistic rhetoric to Hacker News, regardless of which nation you favor or disfavor. Ratcheting up indignation levels is bad here, and so is grandiose generalization.

We detached this subthread from https://news.ycombinator.com/item?id=14245012 and marked it off-topic.


I absolutely agree with everything you said with one exception.

> "Protect and Serve"

Everyone thinks that the police's job is their motto. It was some strategic messaging, but they came up with that. Police weren't created to protect and serve. Going back to the foundations of the country's policing strategy, police exist to maintain order. That's why they arrest protesters, shoot unarmed guys who are noncompliant, arrest people for selling cigarette singles. That subtle shift in how we perseve their job explains vertically all of their behavior as of late.


Interesting you chose those specific examples. Police killing black men in those instances did the opposite of what you claim. They turned orderly to disorderly.


That's because they don't exist to protect order as such. They exist to protect a particular social order.


> Going back to the foundations of the country's policing strategy, police exist to maintain order

Very un-Peelian policing. Could you give more background on how and when the foundations of US policing strategy were laid, because it seems to be very fragmentary and local?


I hate to cheap out and just send you to a history podcast, but it really is a great collection of remarks on the history of policing in the US.

https://itunes.apple.com/us/podcast/serve-protect-a-history-...

It's well worth a listen, the entire series is great as well


"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.


Downvotes are likely because those stats are completely useless in supporting your point.


> 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.


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


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.


It happens to be where I live, so I guess it seems less random to me.


The largest Dutch cities are at best medium-sized in total population and density compared to American cities, though, and a lot richer in wealth per capita. For example, using 2015 numbers, Amsterdam with 848k people (4.3k per sq mi) wouldn't place on the top 10 list of largest or densest American cities. San Jose, California at #10 has over a million people (5.3k per sq mi).

New York City (#1) has 8.5 million people at a density of 27,012 people per square mile. In other words, NYC has over half of the population of all of The Netherlands and roughly 20 times the average density. I don't think you should assume that anything about policing strategy in The Netherlands can be applied to these fairly radically different environments.

Edit: I can't reply to the comment below this about education spending. Let's look at the data:

http://data.worldbank.org/indicator/SE.XPD.TOTL.GB.ZS

"Expenditure on education as % of total government expenditure (%)"

> Netherlands 12.1%

> United States 13.3%


That can't be right. And it isn't. Maybe you mixed up imperial and metric units?

Amsterdam has 12.7k people per sq mi[1]. Not NY-dense, but certainly more dense than San Jose.

I am sure that Dutch police get longer and higher education than their US colleagues, on average. But more importantly, I think the culture in the police here is completely different, they attract a different type of character. In the US, using the "soft" approach is not popular with politicians and voters, so the police seems to have developed into an "army-light", attracting mostly "tough guys" who like the use of force.

[1] https://en.wikipedia.org/wiki/Amsterdam


Or maybe the difference is just that money goes into education instead of militarization of the police.


The nominal ratios spent on education actually do not matter much with a basic comparison because it is not a metric of how efficient that money is used and if citizens get equal benefits from the spending. I am quite certain the Netherlands is better at govt. spending than the US.


These are the people who destroy democracy.


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

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.


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.


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.


This is almost certainly not true, it's not just a lie its 'fraud' at best.


You can say it's not true all you want, but that doesn't change the fact that administrative subpoenas exist as a concept and are used regularly by governmental agencies.

Your inability to distinguish between a document signed by a judge and one that is not doesn't automatically imply that it is fraudulent.


Yes, administrative subpoenas exist.

The difference is whether courts are going to back the document in question.




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