By Nicholas Chrastil | The Lens | October 29, 2021
As a city councilmember in 2017, Jason Williams was one of the most outspoken critics of then-District Attorney Leon Cannizzaro’s treatment of victims and witnesses who were reluctant to testify.
That year, The Lens revealed that Cannizzarro’s prosecutors were using fake subpoenas to pressure witnesses to talk to his office, and watchdog group Court Watch NOLA brought attention to the fact that his office had a rape victim jailed by requesting a material witness warrant for her arrest.
“We don’t want to be embarrassed by The New York Times, Washington Post, other national media who think that we’re running some kind of southern-fried, backwoods operation that is putting rape victims in jail and sending out fake subpoenas,” Williams, then a City Council member, told Cannizzaro at a 2017 city budget hearing.
The practices also prompted a federal civil rights lawsuit against Cannizzaro’s office and several individual prosecutors.
But now, under the terms of a settlement in that suit, it is Williams’ office that will be under the watch of a monitor who will oversee his prosecutors’ use of material witness warrants and ensure they are not issuing fake subpoenas themselves, along with reviewing any complaints made by victims and witnesses in their interactions with the office.
While monitors overseeing police departments and correctional facilities as part of consent decrees and other litigation is relatively common — including here in New Orleans, where both the Police Department and Sheriff’s Office are overseen by court-appointed monitors — having a monitor for a prosecutor’s office is almost unheard of.
“This isn’t the very first time something like this has happened, but it’s rare,” said Miriam Krinsky, director of the national reform organization Fair and Just Prosecution, in an interview with The Lens.
Attorneys for the plaintiffs say that they hope the monitor — attorney Katie Schwartzmann — will help rebuild trust between the office and the community they serve, which they say was badly damaged under the Cannizzaro administration. (A spokesperson for the Louisiana Attorney General’s Office, where Cannizzaro now works, did not respond to questions from The Lens.)
In addition, they see the monitor as a tool that can facilitate a culture change in the office, which under Williams has retained many of the prosecutors that served during the Cannizzaro administration — including one who was a named defendant in the civil rights suit.
The settlement, finalized this month, provides strict limitations on the use of material witness warrants, and bans the use of fake subpoenas altogether. (Cannizzaro announced that he would end the practice of using fake subpoenas the day before The Lens first reported on it.)
Williams says he welcomes Schwartzmann’s oversight.
“A monitor is defined as an instrument that observes and checks the progress or quality of (something) over a period of time,” Williams said in an email. “We measure air quality and water quality. Seems to me that we should be measuring the quality of justice being delivered as well.”
Williams called Schwartzmann “uniquely qualified” for the position.
Schwartzmann — a civil rights attorney who served as lead plaintiffs’ counsel in the federal suit that led to the consent decree for the Orleans Parish Sheriff’s Office and who now heads Tulane Law School’s First Amendment Clinic — was not available for an interview for this story.
Tara Mikkilineni, an attorney with the group Civil Rights Corps who represented the plaintiffs in the fake subpoena suit, said that “it’s pretty novel, pretty historic, for the prosecutor’s office to have a monitor.”
“Typically prosecutor’s offices are very opaque in their practices and don’t welcome outside scrutiny,” she said. “We are really glad that we were able to come to an agreement that involves a watchdog essentially ensuring that the office complies with the policies they’ve agreed to implement.”
Monitor has enforcement power
Mikkilineni said that it was always the goal of the plaintiffs in the fake subpoena suit to have something like a monitor to provide oversight of whatever agreement the parties ultimately came to.
“We always felt that there had to be some kind of external accountability mechanism,” Mikkilineni said. “In large part because this lawsuit was about a DA’s office that deliberately perpetuated deceptive documents to the public, to witnesses and victims, but also to the court.”
In addition to using fake subpoenas to pressure witnesses to meet with them, at times prosecutors in Cannizzaro’s office also used the fact that witnesses ignored fake subpoenas in their requests to judges for material witness warrants. In those requests, they represented the fake subpoenas as real subpoenas.
Under a policy agreed to in the settlement, which the monitor will oversee, requests for material witness warrants must not contain any “misrepresentations or material omissions,” and prosecutors can’t describe a document as a subpoena “unless it is a lawfully issued subpoena.”
Under the terms of the settlement, if the monitor determines that prosecutors are not abiding by the policy, they first bring the issue to the DA’s office to attempt to resolve the issue. If that does not work, however, the monitor can notify the plaintiffs’ lawyers, who can then file a motion in federal court asking the federal judge in the case to intervene.
“She does have enforcement power because she can bring — and as plaintiffs we can still bring — to the federal court, any proceeding with the violations of the agreement,” Mikkilineni said.
The settlement policy agreement also draws strict limits on when prosecutors can request material witness warrants in the first place. It dictates that a request for a material witness warrant should be “an extraordinary measure” used “only when absolutely necessary.” They are not to be used in misdemeanor cases, against witnesses who are pregnant or have serious health concerns, or against victims of crimes “unless exceptional circumstances apply.” The settlement also bars prosecutors from asking for money bail for a person who has been arrested on a material witness warrant.
It also calls for the designation of a supervising attorney who will oversee all requests for material witness warrants, as well as annual training requirements for prosecutors related to interactions with witnesses and victims.
“There was a pattern and practice….by prosecutors to intimidate victims and witnesses because of their kind of win-at-all-costs culture,” Mikkileneni said. “Some of the prosecutors who were there in the Cannizzaro years are still there, so there’s a big question about changing the culture of the office.”
Among the Cannizzaro holdovers is Arthur Mitchell, who was accused in the civil rights suit of representing fake subpoenas as real subpoenas in a request for a material witness warrant against a victim of domestic violence. The victim was eventually arrested and spent 5 days in jail on a $100,000 bond.
Williams’ First Assistant Bob White, however, said that Mitchell is committed to the new policies of the office.
“During Arthur Mitchell’s interview process, he made it exceedingly clear that he wanted to be a part of this reform administration,” White said in an email. “Since January 11th, his decisions, performance and actions have manifested the same.”
Mikkileneni also said she hopes Schwartzmann will provide a point of contact for people with concerns about interactions with prosecutors, but do not feel comfortable bringing them directly to the office.
“Specifically given this particular office’s long history and the trust that has really broken down between the office and community, people aren’t going to necessarily feel comfortable or empowered going directly to the DA’s office about individual prosecutors,” she said. “The monitor is really there as a failsafe for the community as well. People know who she is. She’s been a longtime civil rights attorney in the community.”
Others are not convinced that a monitor is necessary at all, however. Rafael Goyeneche, with the Metropolitan Crime Commission, said that given the fact that fake subpoenas are no longer being used, and the fact that there is already state law governing the use of material witness warrants, he doesn’t see the need for a monitor.
“You’re creating up his position for something that isn’t going to be needed,” Goyeneche said. “Whether it’s DA subpoenas — those are gone. … And material witness warrants, they’re governed by state law.”
And the law was modified in 2019 — after the fallout over Cannizzaro’s practices — placing some limits on the use of the warrants.
But Mikkilineni noted that the policies adopted under the settlement agreement go beyond state law in restricting the use and procedures related to material witness warrants. Where the settlement bans their use against any witness in any misdemeanor case, the law prohibits the issuance of material witness warrants only against victims of misdemeanor sex crimes or domestic violence.
“Prosecutors have discretion to limit themselves further,” Mikkilineni said, “and what this agreement is, is an agreement that they will curtail their use in more categories that are covered by state law. And that is enforceable in federal court because this is a settlement agreement.”
‘A tool in the arsenal’
Krinsky, with Fair and Just Prosecution, said that there have been a few other instances where independent monitors have been appointed as the result of federal litigation.
She poitned specifically to Missoula, Montana, where a 2014 Department of Justice investigation found that the county attorney’s office was mishandling sexual assault cases. That investigation eventually lead to an agreement between the DOJ and the county attorney that implemented new policies and training procedures around sexual assault, and the appointment of the Montana Attorney General’s office to act as a monitor to the changes.
That monitorship ended in 2016.
But Krinsky said that she hopes the practice of investigating and establishing oversight on DA’s offices becomes more common, and “should be a tool in the arsenal moving forward for the DOJ Civil Rights Division.”
“There are other ways to hold elected prosecutors accountable for the operation of their offices,” she said. “You know, obviously, the ballot box is a way to do so. Prosecutors offices are run at state and local level by elected chief prosecutors. But that doesn’t mean that there shouldn’t be additional tools used when deep concerns arise.”
And while Krinsky said that she thinks Williams is “bringing about a lot of changes that are long overdue, and that are reflective of a new direction, nationwide, in prosecutorial practices,” she said it was still not a bad idea to have external pressure making sure he continues on his trajectory.
“Often, new leadership can be greatly benefited by outside forces that are trying to keep a watchful eye on how quickly things are changing within that office,” she said.