Some two or three weeks ago, the Hon. District Attorney for the Parish of Orleans got caught with his hand in the cookie jar again. Turns out that his office had been mailing notices to certain persons that he (or more accurately, his assistants) wanted to speak to. This in and of itself would not be significant – every DA's office sends correspondence to certain individuals that it would like to speak to.
But these notices were different. They began by stating “SUBPOENA: A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.” I've attached an image to this blog post for your viewing pleasure. These documents, whatever you want to call them, are clearly not subpoenas. Subpoenas must be issued through the clerk of court's office and served by a constable, the sheriff's office, or a special process server. If you've ever been served with a subpoena, chances are that you were handed a subpoena by another person. There's a very good reason for this – when a person is served with a subpoena, the person that served the subpoena makes a paper record of the time and date of service (this is called a return and is clearly viewable in the image I attached). Broadly speaking, if a person is not properly served or something is wrong with the return, the person cannot be punished for failing to comply with the subpoena.
The district attorney's office was simply putting these “subpoenas” in the mail to the last known address of the target. The documents were not issued by the clerk of court's office nor were they served by a constable or deputy sheriff. The “subpoenas” contained text referencing personal and domiciliary service, but neither one of those types of service can be accomplished by simply mailing the document to a potential interviewee. Thus, the “subpoenas” were without legal effect.
So why did they send these “subpoenas” out in the first place? The remarks by spokesman Chris Bowman are telling. “Maybe in some places if you send a letter on the DA's letterhead that says ‘you need to come in and talk to us' that is sufficient. It isn't here” he stated when recently asked about the “subpoenas.” What I take from that is that the district attorney's office believes that if it sent out letters on the DA's letterhead, the recipient of the letter would just ignore it. I suppose that the office feels that using the “subpoena” language and falsely stating that those who ignore the “subpoena” are subject to fine and/or imprisonment would spur people who would otherwise ignore the document to contact the DA's office to speak about a criminal prosecution.
I cannot read the district attorney's mind, nor do I know what he was thinking with respect to these “subpoenas.” The impression I get from his actions here and elsewhere is that he believes that his job is to punish people who commit crimes in Orleans Parish (this is true, but he has other jobs too) and that the ends ALWAYS justify the means. I cannot agree that the ends justify the means here. Clearly, most ordinary people that receive these “subpoenas” are going to believe that if they fail to contact the district attorney's office, they are going to either be fined or thrown in jail. Whether or not this language from the "subpoena" was included intentionally, it is simply not true. Anybody that receives this “subpoena” document from the district attorney's office has no obligation whatsoever to speak to anyone. The deception is magnified by the “subpoena's” reference to LSA-C.Cr.P. art. 66, which is the Code of Criminal Procedure article addressing REAL subpoenas and their issuance. If anybody that received a “subpoena” from the district attorney's office bothered to Google that codal article, it is fair to say that their fears of being thrown in jail would magnify.
I refuse to believe that the purpose of these “subpoenas” is anything other than to frighten and intimidate otherwise reluctant persons into speaking to the district attorney's office. This is not a justifiable manner to gain information germane to a criminal case. It's a shortcut. It's cutting corners. It's playing loose and fast with the rules. It's just wrong.
The problem with these letters is exasperated by the district attorney's use of material witness warrants, as discussed two weeks ago in this very blog. I am sure that at least some of the people who received these letters were either eyewitnesses to crime or had intimate details of a crime or the person that is alleged to have committed it. Those persons could be justifiably worried about the district attorney requesting a warrant for their arrest if they choose not to speak to his office. After all, the “subpoena” does say that a failure to comply could be subject to imprisonment. Again, the district attorney apparently believes that the ends (punishing those accused of criminal activity) justify the means (punishing those who are not accused of criminal activity). I disagree.
To his credit, it appears that the district attorney knows that he was in the wrong and changed course accordingly. Chris Bowman recently indicated that the office has stopped issuing letters with the word “SUBPOENA” at the top. It is now issuing letters with the words “NOTICE TO APPEAR” at the top. You can take a look at the new letters here, if you are so inclined. The new letters are a step in the right direction, but I feel they are still misleading, and I still think that if an ordinary citizen receives one, he or she will be quite fearful of the consequences of a failure to comply with its terms. Of course, the DA only decided to stop issuing these letters after the public outcry in the local media. I fully believe that the practice of issuing the “SUBPOENA” letters would have continued had the press not gotten wind of it.
Even though he agreed to those changes, the DA (through Mr. Bowman) also stated that he sees no “legal issues” with the policy. With the caveat that I am clearly not an expert in these types of matters, I will say that I do not think what the district attorney's office was technically illegal. In a recent article, however, Colin Reingold of the Orleans Public Defenders quipped that if a criminal defense lawyer was caught doing the same thing, the district attorney's office would prosecute him or her for it. This is absolutely, 100%, categorically, positively, true. Why should the district attorney's office get to play by a different set of rules than defense lawyers? One might say, “well, the DA's office is trying to put bad dudes away for doing bad things, and defense lawyers are trying to get people off on technicalities.” If you believe that, if you REALLY believe that, I would suggest some light reading. I've done you the favor of linking to the United States Constitution and its amendments, and I suggest that you take some time to read the same.
The DA also opined that this practice had been going on prior to his taking over the office in New Orleans and elsewhere. I've spoken to practitioners who operate mainly in Jefferson Parish and they confirm that DA Paul Connick had sent out similar letters in the past. Mr. Connick also agreed to stop the practice after being questioned by local media. I've also spoken to some Tulane and Broad veterans who confirmed to me that this is a practice going back to the days of Harry Connick, Sr. Just because something has been a certain way or has been going on for a long time does not make it right. If that were the case, for example, gay people wouldn't have the right to marry, Jim Crow laws would still be on the books, and indigent defendants would not have the right to an attorney. The hallmark of an advanced and open society is that it is always moving forward.
If you receive a document from a district attorney's office asking you to come in for a friendly chat, please be aware that you do not have the obligation to speak to anybody, and you have the right to consult with a lawyer prior to speaking to anybody. Call the Law Office of Alex Kriksciun today!