36 Current and Former Prosecutors, State Attorneys General, and Justice Department Officials File Brief in Fifth Circuit Decrying Prosecutorial Misconduct
Institute for Constitutional Advocacy and Protection Argues Absolute Immunity Should Not Shield Prosecutors Who Used Fraudulent Subpoenas to Coerce Victims and Witnesses
[New Orleans, LA] — Three dozen current and former prosecutors, state attorneys general, and former Department of Justice officials signed on to an amicus curiae (“friend of the court”) brief filed Friday in Singleton v. Cannizzaro, a case in the U.S Court of Appeals for the Fifth Circuit concerning whether prosecutors should be granted absolute immunity for serving fraudulent subpoenas on victims and witnesses of crime. The brief was authored by Georgetown Law’s Institute for Constitutional Advocacy and Protection. Eight of the signatories are currently sitting elected officials.
The plaintiffs in the case allege that the Orleans Parish District Attorney’s Office used fraudulent subpoenas to compel victims and witnesses to cooperate. The fake subpoenas, contrary to state law, were not submitted to nor approved by any court. Worse, when some victims and witnesses disregarded the subpoenas, the defendant prosecutors sought and in some cases successfully obtained material witness warrants, allegedly misrepresenting to the court that the subpoenas were valid.
The brief acknowledges that absolute immunity—which protects prosecutors from private lawsuits seeking money damages—is appropriate and necessary for most prosecutorial decisions made while initiating and pursuing criminal cases. It explains, however, that the creation and use of fake subpoenas, in non-compliance with state statutorily created procedures, does not serve the public interest and does not warrant the protection of absolute immunity. The brief emphasizes that the use of fraudulent subpoenas to compel victims and witnesses to meet with prosecutors outside court not only can result in the intimidation of reluctant victims and witnesses but also erodes the trust between prosecutors and the communities they serve, harming public safety in the long run.
“Extending absolute immunity for the issuance of fake subpoenas as alleged in this case would undermine the work of zealous but ethical prosecutors everywhere,” said Mary McCord, senior litigator and professor of law at Georgetown Law’s Institute for Constitutional Advocacy and Protection. “It does no damage to the ability of prosecutors to effectively do their jobs to deny absolute immunity in this case.”
The brief can be found here.