New Orleans DA bullies public defenders for doing their job

An Assistant District Attorney with the Orleans Parish DA is claiming that the Orleans Public Defenders’ office fraudulently obtained records in the case of a man accused of killing a New Orleans police officer in 2015. The charge is just the latest example of the DA making allegations of misconduct against public defenders for simply doing their jobs.

Assistant District Attorney Inga Petrovich claims in a motion that the public defenders improperly requested medical records of Boys’ relatives to support his plea of not guilty by reason of insanity. But one of Boys’ attorneys, Billy Sothern, said the prosecutors’ claim is based on a typo and blasted them for pursuing “false, reckless and unprofessional charges.” Boys has a family history of mental illness and had a psychotic episode in 2014, making these medical records critical to his defense.

Indeed, the collection of mental health records on the client and several generations of a client’s family is an essential component of death penalty defense work. Boys was facing the death penalty until the Orleans DA’s office decided to take it off the table in June; he will now go to trial on October 23 for first-degree murder and faces life in prison if convicted. Capital cases demand lengthy investigations into a defendant’s entire life story, including family and any history of trauma, to make the case for why they should not be put to death. The American Bar Association death penalty guidelines specifically state:

It is necessary to locate and interview the client’s family members (who may suffer from some of the same impairments as the client), and virtually everyone else who knew the client and his family, including neighbors, teachers, clergy, case workers, doctors, correctional, probation, or parole officers, and others. Records — from courts, government agencies, the military, employers, etc. — can contain a wealth of mitigating evidence, documenting or providing clues to childhood abuse, retardation, brain damage, and/or mental illness, and corroborating witnesses’ recollections. Records should be requested concerning not only the client, but also his parents, grandparents, siblings, cousins, and children. A multi-generational investigation extending as far as possible vertically and horizontally frequently discloses significant patterns of family dysfunction and may help establish or strengthen a diagnosis or underscore the hereditary nature of a particular impairment.

The Orleans DA’s office has a pattern of treating robust defense investigation as criminal activity. As I reported in May, public defenders have been repeatedly threatened with criminal charges for routine work like interviewing witnesses or obtaining records.

In December 2014, OPD investigator Taryn Blume was charged with impersonating a peace officer, a felony that carried up to two years in prison. Blume had spoken with housing authority security officers about obtaining a report and had given them her OPD business card. One of the officers mistakenly told his supervisor she worked for the prosecutor’s office. Based on this moment of confusion, the DA spent nearly two years with more than ten prosecutors pursuing the case before they abruptly dropped the charges in January.

A few years earlier, in July 2009, another OPD investigator, Emily Beasley, was charged with kidnapping because she talked to two girls outside their house while their mother slept inside. Cannizzaro also brought charges of contempt against Beasley and her two supervising attorneys based on an unrelated court order barring different public defenders from talking to a different witness. She was led out of court in handcuffs. The conviction was quickly reversed by an appeals court.

Private defense attorney John Fuller also became a target of the DA’s ire last year. Cannizzaro compiled and distributed an inch-thick dossier on Fuller’s supposed misconduct, accusing him of witness tampering and meeting with other attorneys’ clients in jail. The DA sent these allegations to several law enforcement agencies, but nothing has come of it.

“The real motivation behind this charade is an effort to create a chilling effect on my office and others who aggressively and effectively fight for the constitutional rights of our clients,” Fuller told the Times-Picayune. “But I cannot and will not be intimidated by Mr. Cannizzaro, his cronies or his tactics.”

Orleans prosecutors have also regularly threatened public defenders with arrest, sometimes by reminding them of Blume’s case. One public defender, Sarah Chervinsky, testified that Jason Napoli, the ADA who secured Blume’s indictment, had threatened her and her clients’ family with arrest if she continued meeting with them. Another public defender, Thomas Frampton, also said Napoli threatened him with charges in the middle of a plea deal negotiation.

Because of these encounters, OPD has instituted measures to protect themselves from allegations of misconduct. Investigators must always conduct field work in pairs so they have a witness who can testify if some action is later contested by the DA. Witnesses must sign statements affirming they understand they are talking to a public defender.

Meanwhile, the DA’s office has its own share of far more serious ethical complaints. A sprawling civil rights lawsuit filed Tuesday accuses Cannizzaro and several other ADAs — including Petrovich, who raised the medical records issue in the Boys case — of using fake subpoenas, forging documents and for routinely jailing victims and witnesses whom the DA’s office deemed uncooperative.