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Orleans Parish District Attorney Leon A. Cannizzaro, Jr., in City Council Chambers on Wednesday, Sept. 20, 2017.

Lawyers for the Orleans Parish District Attorney’s Office told a federal judge Wednesday that prosecutors should be shielded from liability for arresting reluctant witnesses and issuing bogus subpoenas.

The lawyers told U.S. District Judge Jane Triche Milazzo at a court hearing that she must toss out a civil rights lawsuit filed in January because prosecutors have legal immunity for their actions.

On the other side, attorneys for plaintiffs who were jailed ahead of trials or pressured into meeting with the DA's Office said the law does not protect prosecutors when they lie to judges or fabricate subpoenas.

Milazzo, who pointed to the tangle of factual and constitutional issues before her, did not rule immediately. But she expressed skepticism of some of the plaintiffs’ claims, noting that courts have given prosecutors “pretty broad” immunity from legal liability.

The judge has not set a trial date. The DA’s Office hopes it can knock out the lawsuit on legal grounds without a trial.

On the same day that the Lens news website last year exposed the practice, the District Attorney’s Office stopped using bogus subpoenas, which were not signed by a judge, to pressure witnesses to come to the DA’s headquarters for interviews. However, the office continues to arrest reluctant witnesses, on a judge’s order, to make them testify at trials.

The DA’s Office says that if the lawsuit succeeds, it will hamstring prosecutors. Civil rights groups say that out-of-control prosecutors must be reined in from jailing and threatening innocent witnesses.

Courts have held that prosecutors have nearly total immunity from legal liability for their actions as long as they are about to take a case to trial. The theory is that holding prosecutors civilly liable for their actions might make them timid about going after criminals, or overwhelm the courts with lawsuits from convicts.

W. Raley Alford III, a private lawyer representing the District Attorney’s Office, said it was clear that prosecutors' immunity should block the lawsuit, which was filed by the American Civil Liberties Union of Louisiana and the Washington, D.C.-based nonprofit law firm Civil Rights Corps.

“Few things are more important and fundamental than deciding on the witnesses that (prosecutors) will present, and preparing them for trial,” Alford said.

The immunity still applied even in the case of fake subpoenas, Alford said. “That’s true even if he or she employs unauthorized means,” he said. “What matters is the role of the prosecutor.”

Although she appeared sympathetic to that argument, Milazzo repeatedly questioned where she could draw the line between the immunity that prosecutors enjoy just before and during a trial and the lesser shield that protects them at earlier stages of a case, when they are acting in an investigative role that more closely resembles that of a police officer.

In that case, only “qualified immunity” protects prosecutors from lawsuits, meaning they are shielded as long as they did not break laws that they should have known about. That standard would be more favorable to the plaintiffs, who claim the District Attorney’s Office must have known that creating fake subpoenas was wrong.

Katherine Chamblee-Ryan of the Civil Rights Corps told Milazzo that there is no “bright line” in the law for the judge to follow.

Given that there are eight plaintiffs in the case, each of whom encountered different behavior by prosecutors, the judge should allow the case to stay alive so that the plaintiffs can uncover more facts about exactly what prosecutors did and why, Chamblee-Ryan said.

“This is a classic factual dispute. Whether or not this conduct is more like what an investigator does or more like what a prosecutor does turns on the specific facts in each case,” she said.

Meanwhile, Milazzo expressed vocal concern about people who were arrested as material witnesses under a judge’s order and left to sit in jail.

“What was particularly troubling to me with the material witness warrants is that people, as I appreciate it, were incarcerated for a period of time with no appearance before a judge,” she said.

Criminal defendants are supposed to be brought before a judge within 72 hours of their arrest. Yet some of the people jailed on material witness warrants were kept behind bars for many days without seeing a judge, the lawsuit alleges.

“It appears to me that people picked up on material witness warrants are being treated differently from people picked up on arrest warrants for crimes,” Milazzo said.

She wondered aloud if the DA’s failure to notify judges that material witnesses had been jailed would be covered under their absolute immunity.

Attorneys for the DA's Office said that bringing witnesses before a judge was the responsibility of the Sheriff’s Office.

Separately, the judge agreed to accept two friend-of-the-court briefs from supporters of the plaintiffs. One came from a group of legal scholars. The other was from the Louisiana Foundation Against Sexual Assault and two national groups for rape and domestic violence survivors.

"It is no stretch to conclude that the abusive subpoena and material witness procedures and retaliatory punishments, should they be proven, will chill the voluntary witness cooperation on which the successful prosecution of sexual assault and domestic violence cases so heavily depends," the victims' rights groups said.

Follow Matt Sledge on Twitter, @mgsledge.

msledge@theadvocate.com | (504) 636-7432