Quick-thinking prosecutors in movies or TV dramas might pace the courtroom while tying defendants in knots under cross-examination. Only when the state has won the battle of wits can society's enemies be safely sent up the river, and honest burghers sleep soundly.
Real life for assistant district attorneys tends to be significantly less glamorous, for opportunities to demonstrate forensic brilliance are limited. Get collared on a charge of any gravity, and your case will likely never get to court. The art of the plea deal is paramount these days.
“We've got you dead to rights,” the assistant DA will assure the hapless suspect. “Play ball and make it easier on yourself. Resistance will only make it worse for you in the long run.” More likely than not, a mea culpa will follow.
While prosecutors are quick to recognize the wisdom of a confession when they are running the show, they are less inclined to prescribe a similar course when the boot is on the other foot and they are the ones accused of sleazy and corrupt antics. So, it was when New Orleans DA Leon Cannizzaro's office was sued for ginning up what were styled “subpoenas” to bully possible crime victims or witnesses into submission. Judges were even persuaded to lock suspects and material witnesses up on the strength of fake court orders.
The use of bogus documents to alter the course of justice is clearly a bigger threat to the civilized order than many a crime that occupies the attention of Cannizzaro's enforcers. And this was no aberration, because they had been playing this trick for many years. Malice does not come much more forethought than this.
Because prosecutors are paid to hold the rest of us accountable for our transgressions, it is reasonable to expect a higher ethical standard from them. But there must be plenty of prison inmates who wouldn't stoop to the level of prosecutors who are prepared to lie and counterfeit so that recalcitrant but law-abiding witnesses can be thrown in jail.
Prosecutors in New Orleans have been dishing out what purported to be subpoenas for years, although any first-year law student could have told you that, lacking a judge's signature, they were null and void. It must, therefore, have been common knowledge in the criminal justice system that prosecutors were persuading judges to lock up witnesses and suspects for refusing to comply with orders that had no legal force. This does not boost confidence in the judiciary, which was evidently content to let prosecutors usurp its authority.
That all changed when an online news service, the Lens, exposed the dirty tricks on which New Orleans prosecutors have long relied. The evidence was all there in black and white on the bogus subpoenas, and the prudent course for Cannizzaro's prosecutors would clearly have been to 'fess up. Nobody knows better than they do when the jig is up, and here they were without a leg to stand on.
They refused to take responsibility for their gross abuse of office, however, and claimed that they were untouchable under state law. Because the various deceptions and counterfeits to which they resorted were all part of a criminal investigation, they could not be sued. So they argued, but they were wrong.
Prosecutors enjoy absolute immunity for actions “intimately associated with the judicial phase of the criminal process,” the U.S. Supreme Court has ruled, but only for purposes of “protecting the proper functioning” of their office.
Federal judge Jane Triche Milazzo threw out the prosecutors' claims of absolute immunity, noting that it never was intended to bless “systematic fraud,” and that “where a prosecutor has side-stepped the judicial process, he has forfeited the protections the law afford those who work within the process.”
Now that Milazzo has refused to dismiss the lawsuit, perhaps prosecutors ought to do what they always advise defendants to do — take their medicine and start behaving in the way we are entitled to expect from officers of an American court. Instead an appeal has been filed. Surely a waste of time.
Email James Gill at Gill1407@bellsouth.net.