NO.smithday8.121316 04

Leon Cannizzaro leads the press conference about the conviction in the Cardell Hayes trial held by Orleans Parish District Attorneys in New Orleans, Monday December 12, 2016.

Marc Mitchell didn't start out as a reluctant witness. Orleans Parish District Attorney Leon Cannizzaro's office made him that way, he says, and then jailed him for it.

Hours after he was shot in the chest and leg in a dispute over the next game on a Central City basketball court in 2014, Mitchell lay in a bed on the sixth floor of the Interim LSU Hospital. A police detective was there, and Mitchell pointed to a mug shot of Gerard Gray as the man who issued a courtside threat — "I hope you make it home, homey" — before another man started firing.

He went on to testify against the triggerman, Jonterry Bernard, who was convicted of firing 28 bullets that left Mitchell and a friend wounded in A.L. Davis Park on a sultry July afternoon.

But by April 2016, Mitchell had turned cold on prosecutors. He would ignore their calls. A week before Gray's scheduled trial date, at a meeting near his job at a tony French Quarter hotel, Mitchell told four DA's Office staffers he was through with them.

A prosecutor whipped out a subpoena for Mitchell to appear at the trial. He signed it. But Cannizzaro's office wasn't taking chances. Prosecutors told a judge that Mitchell had said he would testify only if arrested — a claim he denies.

But in jail phone calls played for The Advocate by the DA's office, Mitchell acknowledges he told prosecutors he wouldn't come to court "willingly," and tells his girlfriend he meant it. The calls, the DA's office said, show prosecutors had good reason when they petitioned a judge to order his arrest.

Three days after prosecutors gave Mitchell the subpoena, police showed up at his workplace, handcuffed him and drove him to Central Lockup. Mitchell was booked as a material witness, with his bail set at $50,000.

"I don't know if it's right to say this, but I'll forgive those guys (Gray and Bernard) before I forgive the DA. That's how bad that was," said Mitchell, 41.

"I've been shot and almost died, and I really got to go through all this with y'all?" he said. "Any means necessary, they'll do it. By any means, and it don't matter what the effect of that is."

Mitchell's jail stay was short. His friend Chris Smith, who works with mental health court clients, said he pleaded with Criminal District Court Judge Laurie White, who had signed the warrant. She freed Mitchell the next day on his own recognizance.

But Mitchell remains bitter. He lost his job shortly after his arrest. And while the hotel's owner told The Advocate that Mitchell was canned for other reasons, Mitchell places the blame squarely on the DA's Office.

Flurry of criticism

Mitchell describes himself as a casualty of a district attorney who has faced a flurry of criticism lately over his aggressive approach to getting witnesses, including crime victims, into court.

Those tactics, and Cannizzaro's defense of them, have sharpened a division between the DA and his critics — led by City Council members Susan Guidry and Jason Williams, a criminal defense lawyer — over the right approach to prosecuting crime in a city where violence is rising and willing witnesses are scarce.

Last month, Court Watch NOLA issued a critical report finding that Cannizzaro's office secured material witness warrants against at least 30 people last year, an incomplete count that included six crime victims who landed behind bars and nine others who couldn't be found. Among the jailed was a woman who had accused a man of rape and was locked up for a week.

The group urged the DA to stop jailing victims of rape or domestic violence. The City Council followed Thursday with a resolution condemning the practice. A defiant Cannizzaro spurned the call and defended his jailing of the rape victim.

"That's not something I want to do. Think about it. How compliant is my witness going to be if I have to resort to those measures just to get the person in court? But I had to weigh the rapist versus the victim," Cannizzaro said in an interview, adding that the case resulted in a conviction.

"That to me is a win for the community. That to me is a victory for public safety."

Meanwhile, following a report in The Lens that drew a chorus of condemnation, Cannizzaro last week shelved another tool aimed at corralling witnesses: so-called "DA subpoenas" — fake legal orders to show up at his office under threat of jail.

Although he accepted responsibility for the false pretense of a practice that predated him, Cannizzaro also downplayed the impact of those bogus subpoenas, arguing that no one actually faced arrest.

Jefferson Parish District Attorney Paul Connick admitted last week to sending out similarly phony subpoenas. And other district attorneys employ Louisiana's material witness law, which lets them jail "essential" witnesses by showing a judge why "it may become impracticable to secure the presence of the person by subpoena."

But Cannizzaro's office, which prides itself on prosecuting the vast majority of felony arrestees in the city, seems willing to go further than most to force witnesses' hands.

Even Crimestoppers, the anonymous tipster program, sparred with the DA's Office this month as it tried — unsuccessfully — to stop prosecutors from placing one of its callers on the witness stand in a murder trial. 

Cannizzaro's office has taken an even more bare-knuckled approach with some witnesses. His office secured an indictment in 2015 that charged four witnesses with murder in a French Quarter slaying. Police had declined to book them for the 2010 killing, but after the indictment they sat jailed for months until they testified against the accused shooter. The DA's office then dropped the charges, freeing them.

Driving away witnesses?

Such tactics have drawn increasing scrutiny from those who argue that Cannizzaro — who describes crime victims as "my lifeblood" — risks driving them off.

Cannizzaro bristled at that notion, arguing that the real danger to witness cooperation arises from the catcalls of ignorant critics.

"I'm concerned that people who have no knowledge, understanding, appreciation or experience in the area of criminal justice are spouting opinions about violent criminals of which they know nothing," said Cannizzaro, a former Criminal District Court judge for 17 years.

"I have to resort to things like the material witness bond because I believe public safety is my No. 1 concern, and I think that I protect that victim," he added.

"I know people are gonna say, 'Oh, no, you don't protect that person by putting them in jail.' No, I do protect them. Because I protect society. I protect society from the rapist, the murderer, the armed robber."

Cannizzaro described an escalation of measures to secure witnesses who have reported crimes to police: first phone calls, then visits, then — until last week — a "DA subpoena." And if all else fails, a material witness warrant.

"I'm remiss if I just allow the witness, because he has a whim or a caprice which says, 'I don't want to testify,' and then I say, 'That's OK,' " Cannizzaro said.

In Mitchell's case, Cannizzaro insisted he had little choice but to jail him, though Mitchell had testified against Bernard seven months earlier and hadn't skipped town.

"They knew where I was," Mitchell said. "I didn't have nowhere to hide. I wasn't trying to hide."

Prosecutors told White that Mitchell had repeatedly indicated that "this would be the last meeting he would have with the District Attorney's Office and he did not want to move forward with the case."

Taking aim at Mitchell's claims, the DA's Office played The Advocate jail phone calls between Mitchell and his girlfriend following his arrest. In one call, Mitchell recounted a conversation with prosecutors.

"They said, 'So, you want the police to get (you)?' " Mitchell said. "I said, 'Well, I'm not coming willingly.' "

Weary witnesses

Cannizzaro said he can only speculate about why Mitchell shunned his office nearly two years after he was shot. Witnesses tend to grow weary the longer a case lingers, he said, or else the defendant's friends and supporters get to them.

Mitchell insists he wasn't afraid to testify and didn't need to be thrown in jail, though he admits he was fed up.

He said prosecutors had been cajoling him to echo a narrative that Gray, an aspiring rapper, was a violent gang leader staking a territorial claim to the hoops court.

Gray, known as "Roy Da Prince," had previously been acquitted of firing a gun along the St. Charles Avenue parade route during the truck parades on Fat Tuesday in 2009, in an incident that injured several revelers.

Prosecutors claimed Gray was a leader of the "Byrd Gang."

"They were trying to get me to say that those guys were gang members and they've been terrorizing the city. I was like, 'I just want the guys who did something to me. I don't know about anything else,' " Mitchell said.

"That's what they were trying to get me to say to make their case stick. I didn't even know the man was a rapper. All I know was I got in a dispute with one guy, and the other guy shot me. That's it."

The DA's Office already had strung him along with empty promises of protection and other assistance, he said.

Cannizzaro's office bought him a home alarm system and paid for a year of service for Mitchell after he left the hospital and moved to Avondale. After that, Mitchell said, past due bills on the $70 monthly service went to a credit agency.

"I gave them a full story in tears in their office when they started promising all this protection, (that they would) move me to a safer place and help me with expenses," he said. "They didn't do any of the things they said, besides getting me an alarm system that got me in debt."

Mitchell recalled that after Bernard's trial in October 2015, a man pulled up to him near the courthouse steps, raising two fingers and a thumb, as if to mimic a gun. Smith, his friend, also recounted the incident. Mitchell said he mentioned it to the DA's Office, but nothing changed.

Cannizzaro denied promising Mitchell more than a year of home security. He said the office went further, footing the bill for an extra three months. DA's Office records show the last payment, however, came days after Mitchell was jailed.

Cannizzaro also accused Mitchell of lying about losing his job over his arrest.

'Work with us'

He said his focus on victims and witnesses is reflected in a beefed-up staff of 13 well-trained specialists who serve far more people than his predecessors. He also boasted that the office has never lost a witness to violence who has followed prosecutors' advice — for instance, to avoid a certain neighborhood.

Cannizzaro said that limited funding for the victim-witness program comes from a budget that his critics on the City Council cut last year by 10 percent.

"I am more concerned about victims than I am about anyone else in this community, because those are the ones whose lives are being wrecked and destroyed, especially by the violent acts that are taking place," Cannizzaro said.

"My message has been: Work with us, cooperate with us, please don't run and hide. We are going to do everything in our power to help you and work with you," he added.

"But if you opt to take another course of action, then you sometimes leave us with very few alternatives with regard to how we handle the case."

In Louisiana, those alternatives include a material-witness statute that allows prosecutors to have a victim like Mitchell jailed even if he has not first ignored a subpoena.

Wesley Oliver, a Duquesne University law professor who has studied the history of such detentions, said some other states do it differently, giving witnesses a chance to show they'll appear in court on a subpoena before landing in jail.

"If they don't, you can arrest them for a failure to comply with a court order," Oliver said.

"As it is, you treat him as someone who can't be trusted to comply, with no track record of failure, when it would be really easy to establish that track record and avoid the unnecessary incarceration of someone who is presumed to be nothing more than a person with information helpful to the prosecution."

Because they aren't accused of a crime, people who are jailed under Louisiana's material-witness statute have no right to an appointed lawyer.

Oliver called the frequent use of such warrants "very bad PR, because (authorities) are using this basically as an alternative to social work or to witness protection."

Mitchell said his story about the shooting never changed. He just didn't want to deal with Cannizzaro's office anymore, he said, and if it happened again, he wouldn't.

"I never recalled saying nothing about not showing up in court, ever," he said. "Once I signed a subpoena, I know what that means. I could go to jail for that. I never knew I could go to jail for not showing up before the court date."

Following Mitchell's release, Gray's trial was delayed for a month. A jury convicted him on two counts of attempted murder. White later handed him a 100-year prison term.

Mitchell, who still has a 9-mm slug lodged above his heart, took the stand and testified.

Follow John Simerman on Twitter, @johnsimerman.