by Rory Fleming
The city’s top prosecutor learned that the murdered young man was the boyfriend of the woman’s daughter. So he had investigators call the woman to find out what she knew. When the investigators did not get the responses they wanted, the prosecutor sent her several missives, ordering her to come to his office.
The top of the documents read: “A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE”—technically, the law said this was puffery, as only judges have that power.
But no matter. When the woman did not show up, she was thrown in jail anyway at the prosecutors’ command.
That may sound like a chapter summary for a dystopian novel set in some stereotypical oppressive regime. In fact, it’s just a day in the routine governance of New Orleans.
The woman is real: Her name is Lazonia Baham. The prosecutor is real, too: He is Orleans Parish District Attorney Leon Cannizzaro—a near-mythical figure in prosecutorial accountability circles since no prosecutor routinely breaks the law quite like him.
For many years, DA Cannizzaro sent fake, illegal subpoenas like the one above to witnesses and crime survivors—including victims of child molestation and child pornography. He has bragged on television about jailing rape victims as material witnesses to their own rapes. When local police coerced a man to give false testimony in a murder case, Cannizzaro charged the man with a count that carried 40 years in prison.
He even charged at least six staffers at the public defender’s office with crimes for doing their jobs. “It destroyed my life in so many ways,” said Taryn Blume, a defense investigator in her mid-20s whom Cannizzaro claimed impersonated a cop (the case, handled by his own daughter, fell apart).
For the first time, it looks like Cannizzaro’s reign of terror is coming back to haunt him. The US Court of Appeals for the Fifth Circuit decided on April 21 that, when it comes to the fake subpoenas, Cannizzaro and his prosecutors are not entitled to “absolute immunity” from lawsuits, which prosecutors usually receive in the course of doing their jobs.
Instead, the prosecutors now get only “qualified immunity,” like the police do—because they decided to act like bad cops by tricking people into talking to them in furtherance of an investigation.
Absolute immunity, while not quite “absolute” by the normal meaning of the term, still shields bad prosecutors from liability with virtual certainty. Qualified immunity is much easier for someone suing to overcome.
There are two big points to be made here. First, prosecutors are now on notice in this federal circuit court’s jurisdiction—which covers Texas, Louisiana, and Mississippi—and perhaps nationally, that if they cross that line from prosecution to detective work, they will open themselves up to lawsuits.
That is good, because Cannizzaro isn’t the only Louisiana DA office with a fake subpoena problem. In St. Tammany Parish—known as “St. Slammany” to the locals because of its particularly harsh criminal court—the DA’s office had done the same thing for many years if not decades. Bigger prosecutors’ offices also often employ “investigators” that act as de facto detectives, bringing up questions about the nature of those jobs and the litigation risks they bring.
Secondly, the federal court has acknowledged Cannizzaro has indeed routinely broken the law in a state notorious for law enforcement corruption. In short, the US Department of Justice knows that Louisiana “justice” is a problem.
Louisiana almost certainly has the dubious honor of having more DAs go to prison than in any other state, though they get sent there by the federal government, not via prosecution from the state attorney general. Former St. Charles Parish DA Harry Morel, who bribed women into sex in exchange for leniency, is perhaps the best known example. Morel sentenced to three years in federal prison for other crimes, though he controversially evaded a sex offense conviction. St. Tammany Parish’s infamously tough former DA Walter Reed also received four years in federal prison for corruption recently.
While it is unlikely that the Trump administration would criminally investigate Cannizzaro—unless it were to gain cheap partisan points, since Cannizzaro happens to be a Democrat—the next presidential administration, whenever that comes, might well open up a probe immediately.
The Obama administration opened a civil “pattern and practice” investigation against Tony Rackauckas, the similarly scandalized former DA of Orange County, California, in 2016, though the Trump administration let it stall with no further updates. That means there is significant interest in cracking down on the least ethical DAs, at least from within the Democratic party establishment.
For the benefit of the less imaginative federal prosecutors out there, Section 242 of Title 18 of the United States Code provides for the crime “Deprivation of Rights Under Color of Law.” Often, this is used to prosecute police brutality. However, all the statute requires is that a governmental official acts to “willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States,” under the pretense of carrying out official duties.
Cannizzaro’s use of illegal subpoenas deprived his victims of many constitutional rights. As attorney and First Amendment scholar David L. Hudson, Jr. writes, “the First Amendment not only limits the government from punishing a person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.”
Cannizzaro’s “subpoenas” could also potentially endanger or violate the Fifth Amendment right against self-incrimination or the Sixth Amendment right to an attorney during a “custodial” interrogation—or questioning during which one is, or feels like she is, not free to leave.
These are the constitutional risks of prosecutors pretending they are cops.
Cannizzaro has often argued that his overzealous tactics are necessary due to violent crime in New Orleans, claiming that the city is “literally drowning in gunfire.” But purported necessity is no defense for continuously breaking the law as a prosecutor.
If there is any credence to the theory that an important part of prosecution is deterrence, then it is only logical that holding Cannizzaro accountable in the way that befits his position would put a swift end to similar tricks elsewhere. Absolute prosecutorial impunity should be confined to the pages of those dystopian novels.
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