Should a Prosecutor’s Immunity Cover Faking Documents to Lock Up Witnesses?

On Wednesday, a federal appeals court will consider the case of a prosecutor accused of faking official documents to coerce crime victims and witnesses—under threat of incarceration—to cooperate with his office’s investigations. According to a lawsuit filed by the American Civil Liberties Union and the Civil Rights Corps, longtime Orleans Parish District Attorney Leon Cannizzaro did so for years with impunity. 

Louisiana law allows prosecutors, with a judge’s permission, to subpoena people for questioning outside the usual courtroom setting. But the complaint accuses Cannizzaro’s office of creating its own documents, sometimes affixed with the office’s official seal, to elicit witnesses’ cooperation—thereby bypassing the judicial system altogether. “A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE,” one template read.  

And, the lawsuit alleges, Cannizzaro’s office sometimes followed through on this threat. Prosecutors would ask courts to issue “material witness” arrest warrants, swearing to judges that the witnesses had failed to obey a valid subpoena—not a fraudulent one doctored to cow them into submission. 

These warrants allow prosecutors to ensure that critical witnesses show up in court to testify in a given case—especially people they fear might skip town altogether. Cannizzaro has made liberal use of this tool during his tenure, seeking more than 150 material arrest warrants over an eight-year period, according to a 2018 analysis conducted by a team at Yale Law School. 

Some of these warrants were used to lock up the victims of crimes. In 2014, Renata Singleton was the victim in a domestic violence incident involving her then-boyfriend. A mother of three, she told prosecutors she could not afford to take time off from work in order to pursue the charges against him, according to the complaint. She said she had ended the relationship and simply wanted to move on. 

In response, Cannizzaro’s office sent two bogus subpoenas demanding that she come in for questioning, the complaint alleges. After she did not show up at the appointed time, prosecutors obtained a material witness warrant for her arrest, citing her failure to comply with a “subpoena” that in fact had no legal force. 

Singleton was booked and jailed for five days on a $100,000 bond. Her alleged abuser paid his secured $3,500 bond at arraignment and eventually pleaded guilty to two misdemeanors, thereby avoiding jail altogether. 

Last February, the New Orleans City Council unanimously passed a resolution urging Cannizzaro to end the practice of using material witness warrants to jail crime victims in this manner. But the ordeal humiliated Singleton, who worried her new arrest record meant she would be unable to find employment as an accountant again. And the incident “left another mark as well,” the lawsuit adds. “Ms. Singleton is afraid to ever call the police again.”

In their brief before the Fifth Circuit Court of Appeals, Cannizzaro and his co-defendants argue that they used the “subpoena” documents at issue to “prepare witnesses for trial” and “secure their testimony at trial.” Because they took these actions “in the course of prosecuting cases in court,” they contended, they are covered by the absolute immunity of prosecutors—whether or not the conduct was “right or wrong, legal or illegal, authorized or unauthorized.” 

Molly Kovel, a senior staff attorney at the ACLU’s Criminal Law Reform Project and an attorney for the plaintiffs in this case, told The Appeal that granting absolute immunity to Cannizzaro and his co-defendants does not serve the “ostensible goals” of granting absolute immunity in the first place: to ensure that busy, overburdened prosecutors needn’t constantly look over their shoulders. “This behavior is so far outside of the Louisiana statutory framework that it’s essentially a complete end run around those checks and balances,” she said.

The defendants went on to say they did not mete out actual subpoenas, but instead issued “invitation[s] … to meet with them outside of court.” This is roughly analogous to saying that you could not have been impersonating a police officer because the “badge” you carried was a plastic trinket from the costume store—and that shouting “STOP, POLICE!” was just a request to pull over and wait.

The plaintiffs counter that by issuing so-called “subpoenas” without obtaining judicial approval, Cannizzaro and company usurped the authority that Louisiana law explicitly reserves for the courts. And by straying beyond the traditional, established boundaries of the prosecutor’s role, they abandoned their roles as advocates within the judicial system—and surrendered the absolute immunity their actions might have otherwise enjoyed. “Defendants circumvented that process to cut the courts out of the equation, freeing them to do exactly what the law prohibits: engage in abuse and harassment,” the plaintiffs write.

Court Watch NOLA Executive Director Simone Levine, whose organization authored a 2016 report on the incarceration of material witnesses in the parish, called the treatment of crime victims “key to public safety in New Orleans” in a statement provided to The Appeal. “Do we marginalize crime survivors and consider them a number, or do we engage and empower crime survivors and ask them what true safety means for them and their community?”

Attorneys for the defendants declined to comment for this story or did not respond to The Appeal’s request to comment. A spokesperson for the district attorney’s office also declined to comment. 

Cannizzaro’s use of the “subpoena” documents first came to light in 2017, when The Lens published a story highlighting their use against Tiffany LaCroix, a potential witness in the 2016 murder of former New Orleans Saints player Will Smith. At the time, the district attorney’s office denied any wrongdoing. But a Cannizzaro spokesperson seemingly acknowledged that they intended the documents—which he called “notifications” or “notices”—to make recipients believe compliance was mandatory. 

“Maybe in some places if you send a letter on the DA’s letterhead that says, ‘You need to come in and talk to us,’ … that is sufficient. It isn’t here,” Assistant District Attorney Chris Bowman told The Lens. “That is why that looks as formal as it does.”

The same day The Lens’s story broke, the office announced it would end the practice altogether.

In October 2017, the ACLU and the Civil Rights Corps filed suit on behalf of Singleton, LaCroix, and other impacted individuals. In an order handed down last February, District Court Judge Jane Milazzo decided that Cannizzaro and his co-defendants, as prosecutors acting on behalf of the state, were entitled to immunity with respect to most of the lawsuit’s claims, including those regarding threats to put uncooperative witnesses in jail and misstatements or omissions in their applications for material witness warrants. 

However, the court determined that the allegations of subpoena-manufacturing amounted to allegations of “systematic fraud,” and that granting absolute immunity “would not protect the proper functioning of a district attorney’s office.” Doing so, she wrote, “would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.”

Last spring, Cannizzaro’s office appealed Judge Milazzo’s ruling to the Fifth Circuit. Today, a three-judge panel composed of judges Jennifer Walker Elrod, Leslie H. Southwick, and Catharina Haynes will hear oral argument in the case.

In an amicus brief filed with the Fifth Circuit, a bipartisan coalition of 36 current and former prosecutors wrote that extending absolute immunity in this instance would set a dangerous precedent. They stress that the doctrine of absolute immunity, in general, is “appropriate and necessary” to the effective execution of a prosecutor’s duties. “Without it, ethical prosecutors might be deterred from zealously seeking justice … out of fear of facing civil liability for missteps made under considerable time and other pressures,” they write.

But granting absolute immunity to Cannizzaro’s evasions of the judicial process, they urge, would not serve the public interest. Noting that victims of gendered violence are especially likely to be leery of cooperating with law enforcement, the prosecutors call the use of coercive fake subpoenas a “highly disturbing” tactic that “not only can result in the intimidation of reluctant victims and witnesses, but also erodes the trust between prosecutors and the communities they serve.” 

“When prosecutors fail to conduct themselves ethically in their interactions with victims and witnesses, it undermines confidence in the criminal justice system as a whole,” they conclude.