July 30, 2020

Judge rules D.A. Cannizzaro must personally pay $51,450 in penalties for his arbitrary and capricious failure to produce public records related to improper Article 66 subpoenas

NEW ORLEANS – 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. The ruling was issued on July 27 in a public records lawsuit filed in May 2017. The 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. Penalties under the Act must be paid personally by the custodian of the public records, in this case Cannizzaro.

“The District Attorney used false pretenses to compel witnesses to come to his office, sought to jail those who did not appear, and tried to cover up this odious practice by refusing to comply with the Public Records Law,” said Jim Craig, Director of the MacArthur Justice Center’s Louisiana office. “We hope the Court’s judgment of over fifty thousand dollars in penalties will deter the next District Attorney from attempting to evade judicial scrutiny of the office’s subpoena requests and public scrutiny of its practices.”

The lawsuit was filed in 2017 against Cannizzaro after the investigative website The Lens exposed his office’s practice of gathering evidence using subpoenas without seeking the required approval of a court. The suit asked the Orleans Parish Civil District Court to order Cannizzaro to comply with a May 2015 public records request from MacArthur Justice Center attorney Emily Washington, which sought “all records of any subpoenas and subpoenas duces tecum sought by the Orleans Parish District Attorney pursuant to the power granted by Article 66 of the Louisiana Code of Criminal Procedure” from 2013 to the present.

In response to Ms. Washington’s May 2015 request, the DAs Office first claimed that it had no capacity to search files for the records, and then asserted that the request was burdensome.” When Washington offered to review closed and refused case files herself to find the records, Cannizzaros office did not accept the proposal. Two years later, The Lens reported that Cannizzaros office had a regular practice of serving Article 66 subpoenas without judicial approval, and published copies of some subpoenas.

Ms. Washington filed a petition for mandamus, arguing that the exposure of the subpoenas by The Lens demonstrated that the records sought two years previously should have been produced under Louisianas Public Records Law. The District Attorney claimed that the documents revealed by The Lens, though titled SUBPOENA” in bold letters at the top and specifically invoking his power under Article 66, were not Article 66 subpoenas but instead DA Notifications.

At the February 3, 2020 trial, Craig and MacArthur attorney Hannah Lommers-Johnson submitted evidence showing that Cannizzaros chief assistant sent a template subpoena to all attorneys and staff of the D.A.s office in May 2014. The new template specifically added language stating that the document was issued pursuant to LSA-CCRP. art. 66” and that A FINE OR IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.” Testimony also proved that Assistant District Attorneys used the templates in court proceedings, even seeking to have non-compliant witnesses jailed on material witness warrants for failing to appear at the D.A.s office for interviews. However, the subpoenas were not presented to judges in Criminal District Court for approval.

According to the evidence, this template was used in cases from May 2014 through April 2017, shortly after its use was exposed by The Lens. “If the District Attorney had responded truthfully and completely to Emily Washington’s May 2015 public records request, the people of Orleans Parish would have discovered the use of these improper subpoenas two years before they were exposed by journalists,” Lommers-Johnson said.

Judge Julien found that the District Attorney acted arbitrarily and capriciously in failing to produce the documents [Ms. Washington] requested in her Public Records Request of May 7, 2015.” The Court awarded $51,450.00 in penalties (based on 1,029 days of failing to produce public records) which, by statute, must be paid by Cannizzaro from his own pocket, and an award of attorneys’ fees yet to be determined.