The MacArthur Justice Center is suing Orleans District Attorney Leon Cannizzaro in light of his office’s practice of gathering evidence using subpoenas that do not have the required advance approval of a court. The suit asks the Orleans Parish Civil District Court to order Cannizzaro to comply with a 2015 public records request for copies of district attorney subpoenas from 2013 to the present.
The suit also questions the constitutionality of the District Attorney’s subpoena process, which, according to Article 66 of the Louisiana Code of Criminal Procedure, only requires the attorney general or district attorney set forth “reasonable grounds” as opposed to probable cause.
The case is on appeal to the Louisiana Court of Appeal for the Fourth Circuit.
The Louisiana Fourth Circuit Court of Appeal issued its opinion, affirming the ruling of Judge Ethel Julien of the Civil District Court for Orleans Parish that former District Attorney Leon Cannizzaro is liable to New Orleans attorney Emily Washington for his arbitrary and capricious failure to produce public records related to his office’s improper use of illegal subpoenas. That judgment requires Cannizzaro to pay $51,450 in penalties under the Louisiana Public Records Act, and also to pay attorneys’ fees and expenses to be determined later.
Judge Ethel Julien of the Civil District Court for Orleans Parish has entered judgment against District Attorney Leon Cannizzaro finding him liable for the arbitrary and capricious failure to produce public records related to the use of Article 66 subpoenas.
On appeal, DA Cannizzaro has abandoned the defense that producing the records would be burdensome, and has argued the second of his defenses. At oral argument on August 9, 2018, we challenged this specious argument, which amounts to allowing the DA to issue fraudulent subpoenas without having to answer to the public. We await the ruling of the Louisiana Fourth Circuit Court of Appeals.
We filed a Petition for Mandamus to enforce Louisiana’s Public Records Law, which provides penalties, damages and injunctive relief against a public official who wrongfully refuses to produce public records. In the Civil District Court, the DA contended that the request was “burdensome,” and that he did not have to produce the records for that reason. He also asserted that the records disclosed in May 2017 were not Article 66 subpoenas because they were not approved by a judge. The District Court ruled in the DA’s favor, and our office appealed.
Emily Washington requested all records of any subpoenas sought by the Orleans Parish District Attorney under the power granted by Article 66 of the Louisiana Code of Criminal Procedure. That article gives the DA the right to ask a judge to issue a subpoena for interviews or documents on “reasonable grounds” – a lower standard than the Fourth Amendment’s “probable cause” requirement for a search warrant. The DA did not comply, and two years later it was revealed that DA Leon Cannizzaro’s office issued Art. 66 subpoenas without getting judicial approval.