It’s difficult, more times than veteran prosecutors can count, to get people to show up as witnesses in New Orleans criminal court. That doesn’t help law and order safety in the city.
But the solution is not to abuse the powers of the District Attorney’s Office to frighten folks into court appearances.
"The conduct at issue in this case is far afield from the 'vigorous performance' of prosecutorial duties. It is a fraud on the criminal justice system," a new brief in the long-running dispute states.
Prominent national attorneys, across ideological lines, and including former U.S. Attorney General Michael Mukasey, who served under President George W. Bush, have made an important point about the practice of threatening witnesses to appear.
Though noting that the bogus subpoenas were issued for years in New Orleans, District Attorney Leon Cannizzaro ended the practice in 2017 when it was revealed by the news site The Lens.
The new friend-of-the-court brief arises in a federal lawsuit against Cannizzaro’s office, seeking damages for the conduct by prosecutors.
There are two issues here: One is what the new brief correctly criticizes as the “subpoenas” that did not have a judge’s signature, but threatened fines or jail time if the recipient did not appear.
We agree with the organizer of the list of legal heavyweights, Mary McCord, a top Justice Department official in the Obama administration and now with the Georgetown University Law Center: "This brings a bad name to ethical prosecutors."
But there is a second issue, and that is whether the plaintiffs in the lawsuit against Cannizzaro’s office can sue for damages, because — and generally, quite wisely — prosecutors are protected from lawsuits based on their official conduct.
We think that is a tougher issue, as the first thing a malefactor is wont to do is file lawsuits against prosecutors. That should not be encouraged.
The Louisiana District Attorneys Association filed another brief in the case. "Any ruling that alters or diminishes the scope of absolute immunity compromises the ability of district attorneys and assistant district attorneys to fulfill their responsibilities to serve the public interest and presents a substantial risk of adversely affecting the proper functioning of the criminal justice system," the group said.
We believe this is a significant point, too, although Cannizzaro’s office would have been better served had it ended the “subpoenas” voluntarily instead of under pressure from the press.
Society gives vast latitude, and maybe sometimes too much, to the judgment of prosecutors. They decide who to charge and what offense to charge with; jurisprudence on a day-to-day level in courthouses across America is less a matter of judges and juries than prosecutors making plea deals.
The failure of witnesses to appear is a problem, but it’s also a threat to public safety if this odd case generates a civil judgment that encourages a blizzard of lawsuits against prosecutors doing their jobs.