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Federal Court Denies Immunity to Prosecutors Who Used ‘Fraudulent’ Subpoenas to Jail Witnesses


New Orleans DA Leon Cannizzaro

A federal appellate court on Wednesday ruled that a Louisiana district attorney and several prosecutors in his office violated the law by using fake “subpoenas” to pressure the victims and witnesses of crimes to meet with them, finding that the attorneys were not entitled to “absolute immunity” from legal liability.

In a 17-page decision, the three-judge panel of the Fifth Circuit Court of Appeals affirmed a lower court’s decision denying immunity for former Orleans Parish District Attorney Leon Cannizzaro and ten other prosecutors who for years used “fraudulent subpoenas” not issued by any court to compel cooperation from victims and witnesses, some of whom were jailed for non-compliance.

As previously reported by Law&Crime, six recipients of the fake subpoenas and several public advocacy groups filed a lawsuit against the prosecutors in 2017.  The plaintiffs argued that the prosecutors’ tactics coerced their cooperation and were a violation of their civil rights. The prosecutors responded by claiming they were protected from liability by absolute immunity because they manufactured the fake subpoenas in relation to “the core prosecutorial function of preparing evidence and testimony for trial.”

Under the doctrine of absolute immunity, prosecutors are immune from civil liability arising from activities “intimately associated with the judicial phase of the criminal process.”

“In using the fake subpoenas, Individual Defendants also allegedly intentionally avoided the judicial process that Louisiana law requires for obtaining subpoenas. Their creation and use of the fake subpoenas thus fell ‘outside the judicial process,’” the panel of judges wrote unanimously.

The ruling means that the victims of the Orleans DA’s office – one of whom was allegedly jailed for over a week for refusing to provide testimony that contradicted her memory of a murder – will be able to continue their federal civil rights suit against the prosecutors.

Katie Chamblee-Ryan, one of the attorneys representing the recipients of the fake subpoenas, said the decision was a major victory for victims’ rights.

“Today, the Fifth Circuit made it clear that the prosecutors in the New Orleans District Attorneys’ Office should be held accountable for using fake subpoenas to threaten and coerce our clients. This is a victory for each of those people whose lives they derailed, and now they can move forward with seeking legal relief for their suffering. We are proud to fight for and alongside them,” she said.

Ken Daley, a spokesman for Cannizzaro, said in a written statement that he expects the prosecutors to prevail in the next phase of the proceedings.

“We will review the opinion and discuss options as this process moves forward. It is important to note that the court thus far has ruled only on the basis of the plaintiffs’ allegations,” Daley wrote. “We have yet to have our opportunity to challenge the factual basis of those claims. Once these allegations must be proven, we expect quite different results.”

The judges who issued the opinion, Jennifer Walker Elrod, Leslie H. Southwick, and Catharina Haynes, were all appointed by President George W. Bush.

See below for the full Fifth Circuit decision:


5th Cir. Fake Subpoena Ruling by Law&Crime on Scribd

[Image via screen grab from WLAE-TV/YouTube.]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.