For years, the Orleans Parish District Attorney’s Office has taken a stern approach to skittish witnesses, warning in written notices with the word "subpoena" at the top that failing to talk could mean fines or even jail time.
On Wednesday, prosecutors announced they are dropping the ominous heading on those notices, acknowledging that the DA's Office does not have the authority to issue subpoenas by itself.
Critics, including the Orleans Public Defenders, had assailed the notices as misleading.
The DA's Office will now send a request called a “notice to appear” instead.
“I have today again gone out and said this is the only acceptable notice to appear that we will be sending to people,” First Assistant District Attorney Graymond Martin said.
Prosecutors and defense attorneys alike have the right to try to speak with witnesses in pending criminal cases. But in general, only a court order can force witnesses to appear to talk.
Martin said prosecutors have used what is known within the office as a “district attorney subpoena” for years. Various versions of the document have been used at different times, including the one titled “subpoena,” he said. That title is now being discarded in favor of the less forceful “notice to appear.”
“It’s an assertive invitation for you to come and talk to us,” Martin said.
The old "subpoenas" also invoked article 66 of the Louisiana Code of Criminal Procedure, which allows prosecutors to obtain a subpoena to force a witness to be questioned. But that requires a judge's order. The new notice discards the legal reference.
A local watchdog group is demanding that the Orleans Parish District Attorney’s Office stop …
The change comes as defense attorneys have placed the “DA subpoena” practice under increasing scrutiny. Colin Reingold, the special litigation director for the Orleans Public Defenders, said his office was exploring whether to take legal action over it.
“It gave people receiving the subpoena the false impression that these were judicially sanctioned,” Reingold said. “We certainly can’t send people subpoenas asking them to come to the Public Defenders Office, and the District Attorney’s Office doesn’t have that right either.”
Reingold said the new “notice to appear” document improves on the old “subpoena” document. But he still thinks that it should be phrased as a request instead.
“I still think it could be misconstrued as mandatory,” he said. "I am concerned that a lay person will not be aware that an order to appear issued by (District Attorney Leon) Cannizzaro does not carry the force of law."
Martin said he did not know how often the old notices were sent to witnesses because there was no formal system of keeping a record of them. They were issued by individual prosecutors who decided on their own whether to place them in case files, he said.
Reingold said public defenders only found out about the documents when a witness told his office one had been received.
The "DA subpoenas" were only one of a variety of tactics that prosecutors use to entice or force witnesses to tell their tales. Cannizzaro has ordered his prosecutors to take aggressive steps to make sure cases can go to trial.
"Our obligation is to the community at large, not necessarily to the victims or the witnesses," said Assistant District Attorney Chris Bowman, a spokesman for the office. "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."
Earlier this month, the nonprofit group Court Watch NOLA detailed how the DA's Office obtained at least 30 court warrants to arrest "material witnesses" and victims so as to force them to testify. In one case, a woman who had accused a man of rape was placed in jail for eight days.
Martin said that in a city full of squeamish witnesses, hard-nosed tactics are necessary.
“It’s an unpleasant business. We try to be as nice as we can, to as many people as we can … but there comes a time when the public safety demands that citizens step up and participate in the process,” he said.