'Seems like lawyers who made stupid mistakes,' professor says of fake subpoena practice

By Melissa Busch | Apr 28, 2017

NEW ORLEANS – The practice of district attorney offices in Jefferson and Orleans parishes sending out fake subpoenas to reluctant witnesses to get them to talk to prosecutors has probably been done that way for a long time, according to one law professor.

Dane S. Ciolino, a law professor at the Loyola University New Orleans College of Law and a New Orleans attorney, told the Louisiana Record that he believes the practice should be stopped immediately, but guesses there was no malicious intent behind it.

“This seems like lawyers who made stupid mistakes,” Ciolino said. “Was it malicious? I think it was a mistake that has happened for too many years. I think it was a matter of institutional inertia.”

Just one day after the Orleans Parish District Attorney’s Office announced it would immediately stop sending out self-described fake subpoenas to witnesses who didn’t wish to cooperate with prosecutors, the Jefferson Parish District Attorney’s Office announced Thursday it also would stop doing it. The offices made their admissions after The Lens told the Orleans office that it was publishing a story reporting that legal experts call the practice illegal and unethical.  

Not only is the practice illegal and unethical, Ciolino said the offices could have gotten exactly what they needed by obtaining real subpoenas from the court.

Though he recognized that it as an “unusual procedure” for authorities to obtain subpoenas from courts to interview investigative witnesses, it is a route district offices can take to get witnesses to talk to authorities. If prosecutors want to interview a witness in private, while a case is still under investigation, state law requires them to ask a judge to issue a subpoena.

“They skipped the court approval of the process,” Ciolino said. “You can get a real subpoena as quick as you can get a search warrant. There is a real solution to getting unwilling witnesses to talk to authorities, instead of violating the Code of Criminal Procedure.”

According to The Lens, the fake subpoenas sent out by prosecutors cited state law and declared, “A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.”

Since a judge had not approved the subpoenas, they had no legal authority.

Ciolino did not think the disclosure of the offices’ practices of issuing fake subpoenas would negatively impact any pending criminal cases. He also didn’t think that victims of the fake subpoenas would have grounds for civil suits.

“I don’t think there is any civil liability,” Ciolino said. “I do think they could face action from the Louisiana disciplinary board."

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