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Louisiana prosecutors are using fake subpoenas to pressure witnesses to talk

295 points by user982 9y ago

pizza 9y ago
Is https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree applicable?
- matt4077 9y ago
  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").
  - rendall 9y ago
    "... they routinely let people off the hook..." [citation needed]
    - alphonsegaston 9y ago
      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).
  - devoply 9y ago
    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.
  - wonderwonder 9y ago
    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 9y ago
      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 9y ago
        I really like this idea.
  - jacquesm 9y ago
    > 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.
  - eric_the_read 9y ago
    In theory. In practice, it's pretty much nonexistent. There's a long tweetstorm about it here: https://twitter.com/greg_doucette/status/821017618106744833 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.
  - adrr 9y ago
    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.
tcj_phx 9y ago
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 9y ago
  > 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.
throwit2mewillU 9y ago
These are the people who destroy democracy.
DanielBMarkham 9y ago
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?
davidgerard 9y ago
Cheap reblog of http://thelensnola.org/2017/04/26/orleans-parish-prosecutors-are-using-fake-subpoenas-to-pressure-witnesses-to-talk-to-them/ http://thelensnola.org/2017/04/26/orleans-parish-prosecutors... "Orleans Parish prosecutors are using fake subpoenas to pressure witnesses to talk to them"
- sctb 9y ago
  Thanks! We updated the link from https://www.techdirt.com/articles/20170428/20250437262/louisiana-das-office-used-fake-subpoenas-decades-to-trick-people-into-talking-to-prosecutors.shtml https://www.techdirt.com/articles/20170428/20250437262/louis....
ouid 9y ago
if I ignore a real subpoena now, could that be considered entrapment?
- bogositosius 9y ago
  Can you elaborate on your reasoning? I don't see how entrapment follows from this.
  - ouid 9y ago
    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 9y ago
      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.
    - coldcode 9y ago
      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.
Doxin 9y ago
> 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.
- Pyxl101 9y ago
  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 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%
  - tobltobs 9y ago
    Or maybe the difference is just that money goes into education instead of militarization of the police.
  - Maarten88 9y ago
deleted 9y ago
[deleted]
ptero 9y ago
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 9y ago
  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.
- rhino369 9y ago
  Another avenue is a complaint to the state bar. This is an unethical practice.
- _jal 9y ago
  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.
sheraz 9y ago
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 9y ago
  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.
  - Zak 9y ago
    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 9y ago
      Well, the lawyers should know that digitizing it means that they are liable and provably so.
      - Zak 9y ago
        I don't think lawyers generating paper documents, signing them and then denying their authenticity is a widespread practice.
        a3camero 9y ago
        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.
ASlave2Gravity 9y ago
This sounds like the plot for an Elmore Leonard novel.
CodeWriter23 9y ago
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 9y ago
  Breaking the law by those enforcing it is meh?
  - CodeWriter23 9y ago
    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.
    - jacquesm 9y ago
      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.
    - TallGuyShort 9y ago
      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?
bogositosius 9y ago
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.
- forgotpwtomain 9y ago
  This is almost certainly not true, it's not just a lie its 'fraud' at best.
  - bogositosius 9y ago
    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.
    - _jal 9y ago
      Yes, administrative subpoenas exist. The difference is whether courts are going to back the document in question.
- geofft 9y ago
  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.
mpweiher 9y ago
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 9y ago
  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").
pc86 9y ago
> 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.
- mannykannot 9y ago
  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.
- wccrawford 9y ago
  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 9y ago
    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.
d883kd8 9y ago
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-law-new-orleans https://www.theguardian.com/us-news/2017/may/01/prosecuted-l...
Spoom 9y ago
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 9y ago
  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.
kens 9y ago
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-common/ http://www.mercurynews.com/2007/12/23/fake-lab-reports-were-... [2] http://www.mercurynews.com/2007/12/16/sex-case-hinged-on-phony-lab-report/ http://www.mercurynews.com/2007/12/16/sex-case-hinged-on-pho...
scrps 9y ago
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.
fencepost 9y ago
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.
turc1656 9y ago
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.
JackFr 9y ago
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-stationed-in-nopd-internal-affairs-unit/ http://www.pbs.org/wgbh/frontline/article/fbi-officers-stati... http://www.pbs.org/wgbh/pages/frontline/law-disorder/etc/cron.html http://www.pbs.org/wgbh/pages/frontline/law-disorder/etc/cro...
mnm1 9y ago
These are prosecutors. What do you expect? Integrity and ethics? Seriously? From a position of unchecked, almost infinite power over others?
gumby 9y ago
These same prosecutors are also attacking public defenders with fake criminal charges: https://www.theguardian.com/us-news/2017/may/01/prosecuted-law-new-orleans https://www.theguardian.com/us-news/2017/may/01/prosecuted-l...
teilo 9y ago
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.
pasbesoin 9y ago
Well, some people need to be losing their law licenses -- toute suite. And permanently.

295 points by user982 9y ago

Is https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree applicable?

matt4077 9y ago
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").
- rendall 9y ago
  "... they routinely let people off the hook..." [citation needed]
  - alphonsegaston 9y ago
    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).
- devoply 9y ago
  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.
- wonderwonder 9y ago
  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 9y ago
    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 9y ago
      I really like this idea.
- jacquesm 9y ago
  > 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.
- eric_the_read 9y ago
  In theory. In practice, it's pretty much nonexistent. There's a long tweetstorm about it here: https://twitter.com/greg_doucette/status/821017618106744833 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.
- adrr 9y ago
  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.

tcj_phx 9y ago

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 9y ago
> 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.

throwit2mewillU 9y ago

These are the people who destroy democracy.

DanielBMarkham 9y ago

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?

davidgerard 9y ago

Cheap reblog of http://thelensnola.org/2017/04/26/orleans-parish-prosecutors-are-using-fake-subpoenas-to-pressure-witnesses-to-talk-to-them/ http://thelensnola.org/2017/04/26/orleans-parish-prosecutors... "Orleans Parish prosecutors are using fake subpoenas to pressure witnesses to talk to them"

sctb 9y ago
Thanks! We updated the link from https://www.techdirt.com/articles/20170428/20250437262/louisiana-das-office-used-fake-subpoenas-decades-to-trick-people-into-talking-to-prosecutors.shtml https://www.techdirt.com/articles/20170428/20250437262/louis....

ouid 9y ago

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

bogositosius 9y ago
Can you elaborate on your reasoning? I don't see how entrapment follows from this.
- ouid 9y ago
  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 9y ago
    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.
  - coldcode 9y ago
    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.

Doxin 9y ago

> 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.

Pyxl101 9y ago
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 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%
- tobltobs 9y ago
  Or maybe the difference is just that money goes into education instead of militarization of the police.
- Maarten88 9y ago

deleted 9y ago

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ptero 9y ago

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 9y ago
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.
rhino369 9y ago
Another avenue is a complaint to the state bar. This is an unethical practice.
_jal 9y ago
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.

sheraz 9y ago

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 9y ago
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.
- Zak 9y ago
  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 9y ago
    Well, the lawyers should know that digitizing it means that they are liable and provably so.
    - Zak 9y ago
      I don't think lawyers generating paper documents, signing them and then denying their authenticity is a widespread practice.
      - a3camero 9y ago
        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.

ASlave2Gravity 9y ago

This sounds like the plot for an Elmore Leonard novel.

CodeWriter23 9y ago

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 9y ago
Breaking the law by those enforcing it is meh?
- CodeWriter23 9y ago
  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.
  - jacquesm 9y ago
    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.
  - TallGuyShort 9y ago
    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?

bogositosius 9y ago

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.

forgotpwtomain 9y ago
This is almost certainly not true, it's not just a lie its 'fraud' at best.
- bogositosius 9y ago
  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.
  - _jal 9y ago
    Yes, administrative subpoenas exist. The difference is whether courts are going to back the document in question.
geofft 9y ago
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.

mpweiher 9y ago

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 9y ago
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").

pc86 9y ago

> 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.

mannykannot 9y ago
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.
wccrawford 9y ago
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 9y ago
  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.

d883kd8 9y ago

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-law-new-orleans https://www.theguardian.com/us-news/2017/may/01/prosecuted-l...

Spoom 9y ago

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 9y ago
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.

kens 9y ago

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-common/ http://www.mercurynews.com/2007/12/23/fake-lab-reports-were-... [2] http://www.mercurynews.com/2007/12/16/sex-case-hinged-on-phony-lab-report/ http://www.mercurynews.com/2007/12/16/sex-case-hinged-on-pho...

scrps 9y ago

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.

fencepost 9y ago

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.

turc1656 9y ago

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.

JackFr 9y ago

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-stationed-in-nopd-internal-affairs-unit/ http://www.pbs.org/wgbh/frontline/article/fbi-officers-stati... http://www.pbs.org/wgbh/pages/frontline/law-disorder/etc/cron.html http://www.pbs.org/wgbh/pages/frontline/law-disorder/etc/cro...

mnm1 9y ago

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

gumby 9y ago

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

teilo 9y ago

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.

pasbesoin 9y ago

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