Prosecutors Not Immune from Lawsuit over "Fake Subpoenas"

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From Tuesday's Fifth Circuit decision in Singleton v. Cannizzaro:

Plaintiffs allege that for years, prosecutors at the Orleans Parish District Attorney's Office (the "Office"), under the direction of District Attorney Leon Cannizzaro, used fake "subpoenas" to pressure crime victims and witnesses to meet with them. These documents were labeled "SUBPOENA" and were marked with the Office's official seal. They directed recipients "to appear before the District Attorney for the Parish of Orleans" and warned that "A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE." The Office's use of the fake subpoenas violated Louisiana law, which requires prosecutors to channel proposed subpoenas through a court.

A brief summary of each relevant Plaintiff's experience with the fake subpoenas is in order. Plaintiff Renata Singleton is a domestic violence victim who refused to speak with prosecutors about a domestic incident. She alleges that an investigator from the Office then delivered two fake subpoenas to her home. The fake subpoenas demanded that she appear at the Office for questioning. Singleton did not comply. [Similar details for other plaintiffs omitted. -EV] …

Individual Defendants first claim that they are absolutely immune from Plaintiffs' claims arising from the use of the fake subpoenas. Although they may yet be able to prevail on this claim, we disagree with their argument at this stage of the case.

The Supreme Court extended absolute immunity for § 1983 claims to state prosecutors in Imbler v. Pachtman (1976). In that case, a criminal defendant whose conviction had been overturned sued the prosecutor, several police officers, and a fingerprint expert, alleging "a conspiracy among them unlawfully to charge and convict him." But the Court concluded that state prosecutors are absolutely immune from § 1983 damages claims based on activities "intimately associated with the judicial phase of the criminal process." Thus, the Court held that a state prosecutor who acts "within the scope of his duties in initiating and pursuing a criminal prosecution" is absolutely immune from § 1983 claims for violating a "defendant's constitutional rights." …

[T]he Court distinguishes between (1) actions taken "in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of [the prosecutor's] role as an advocate for the State," and (2) "administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings." In [an earlier precedent], the petitioner sued "prosecutors for allegedly fabricating evidence during the preliminary investigation of a crime and making false statements at a press conference announcing the return of an indictment." The Supreme Court held that the prosecutors were not absolutely immune for allegedly fabricating evidence because they lacked "probable cause to arrest [the] petitioner or initiate judicial proceedings" at the time of the alleged fabrication. Thus, the prosecutors' "mission at that time was entirely investigative in character." Importantly, however, the Court also recognized that "a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. Even after that determination, … a prosecutor may engage in 'police investigative work' that is entitled to only qualified immunity."

The policy underlying absolute prosecutorial immunity is twofold. First, "the 'special nature' of the responsibilities of those engaged in the judicial process requires that such persons be accorded absolute immunity when they participate in that process." "The prosecutor's immunity is derived from the absolute immunity accorded judges and grand jurors, an immunity necessitated by the concern that these actors in the judicial process required by law to make important decisions regarding the initiation, conduct, and merit of controversies which often excite 'the deepest feelings' of the parties would be intimidated in the exercise of their discretion by the fear of retaliatory lawsuits brought by angry defendants. A prosecutor's fear of liability could, in a variety of ways, seriously undermine the criminal justice system's goal of accurately determining the guilt or innocence of defendants."

But "when a prosecutor acts outside his quasi-judicial role, he is not making decisions comparable to those of a judge or grand juror. Thus, subjecting him to liability for such decisions will not interfere to the same degree with the effective functioning of the criminal judicial system." …

Plaintiffs allege that Individual Defendants used fraudulent subpoenas to pressure crime victims and witnesses to meet with them outside of court…. Defendants argue that creating and issuing the fake subpoenas was protected prosecutorial conduct because it "relate[d] to the core prosecutorial function of preparing evidence and testimony for trial." But the Supreme Court has squarely rejected this broad interpretation of absolute immunity: "Almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive."

Based upon the pleadings before us at this time, it could be concluded that Defendants' creation and use of the fake subpoenas was not "intimately associated with the judicial phase of the criminal process," but rather fell into the category of "those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings." … Defendants allegedly used the subpoenas to gather information from crime victims and witnesses outside of court. "Investigation … ha[s] historically and by precedent been regarded as the work of police, not prosecutors, and [it does] not become [a] prosecutorial function[ ] merely because a prosecutor has chosen to participate." Defendants' information-gathering is more analogous to investigative police work than advocatory conduct….

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  1. But they’re still immune from jail or disbarment or any other sort of actual punishment that might provide an incentive to stop committing criminal acts, right?

    1. Why would they be immune from disbarment? Obviously no expert here, but way back in my law school, or early legal practice days, I was told that prosecutors cannot ethically lie, but cops, not subject to attorney discipline, can, unless they were working under the direction of an attorney (prosecutor).

      Maybe things have changed in the intervening 30 years. Last night on Blue Bloods, ADA Erin Reagan’s investigator admitted to her that he routinely fibs a bit to people he interviews for her. Of course that is TV, but does seem to run afoul of the line that was seemingly drawn in those ethics classes I took so many years ago.

      1. The investigator is not a lawyer, but was and may still be may be a police officer.

      2. I never understood how it can be a crime to lie to the cops, but not for them to lie to you.

        1. You realize that cops are allowed to handcuff suspects and suspects are not allowed to handcuff cops.

          Not every law is applied symmetrically.

          1. Ummm — at least in theory, one could make a citizen’s arrest of a cop. And other cops routinely arrest cops.

            1. I wouldn’t recommend testing that theory, but if you ever do, let us know how that works out…

            2. Routinely?

              1. It sometimes seems that way. Just now a police chief for liking little boys way too much, a whole bunch of state troopers in an overtime scandal that unfortunately (for them) involved Federal money so that’s the FBI — and much of the FBI’s Boston Office got arrested a while back in the Whitey Bulger scandal, etc.
                There was the drunken off-duty state trooper who punched a bystander at a country & western concert, another drunken one who did something with his weapon, another chief who should have been arrested for OUI and wasn’t, and numerous domestic violence assaults.

    2. Our governments continue to establish many good reasons why their power over citizens should be curbed. The corona virus is the perfect disease for would be fascist types to flout the law and do whatever they want (see Bill and Hillary Clinton).

      1. And countless DemoFascist Governors, along with a RINO named Baker, rhymes with “Faker.”

        1. Said Dr Ed (rhymes with brain-dead)

    3. Legally? No. But who’s going to prosecute the prosecutor?

      1. Gah, it put this in the wrong spot. Sorry.

  2. There are times when I’m surprised this country doesn’t have a terrorist organization specifically dedicated to assassinating assholes who get off through this sort of immunity.

    1. Well, you can thank conservative judicial activism, because the qualified immunity we have sure ain’t found in the text of the statute.

      1. Specifically, *what* “conservative judicial activism” is responsible for creating qualified immunity? From the court cases I’ve read, I’ve seen many Clinton and Obama judges rule in favor of qualified immunity.

        Or, is your shtick on here just to go around and criticize conservatism in general? Because that’s what it seems like with your comments.

        1. Under the oh-so-conservative doctrine of federalism, the federal government should not interfere with the states. Section 1983 is a federal statute that allows people to sue state officials and agencies in federal court, and the conservative position is therefore to limit it as much as possible. Which is precisely what a conservative Supreme Court did by concocting the doctrine of qualified immunity pretty much out of whole cloth; there is no textual support for it whatsoever.

          Clinton and Obama judges faithfully implement qualified immunity because the Supreme Court tells them they have to. But they’re not the ones who invented the doctrine.

          1. “Which is precisely what a conservative Supreme Court did by concocting the doctrine of qualified immunity…”

            The wiki article on QI has a section headed “History of qualified immunity” that says “The modern test for qualified immunity was established in Harlow v. Fitzgerald”. That case was an 8-1 decision. The only dissenter was Burger; among the majority were Bryon White, Thurgood Marshall, and William Brennan. You might say there was a conservative majority in the later Saucier decision, but hasn’t that been refined by the unanimous Pearson?

            1. By the way, Burger thought the aide in the Harlow v. Fitzgerald case was entitled to absolute immunity. Also there was a 4 justice concurrence by Brennan, White, Blackmun, and Marshall.

            2. It doesn’t matter which judges wrote the decision. The concept of limiting the power of the federal judiciary, especially as applied to the states, is a conservative concept, and therefore concocting the non-textual doctrine of qualified immunity was conservative judicial activism. I don’t care if Brennan and Marshall were persuaded to go along with it.

              1. ” I don’t care if Brennan and Marshall were persuaded to go along with it.”

                Clearly, you don’t care at all.

                1. That Brennan and Marshall were persuaded to go along with it? No, I don’t care at all, though I’m disappointed in Brennan and Marshall. And if they could come back from the dead to see the damage qualified immunity has caused, I suspect both of them would change their minds.

                  1. “That Brennan and Marshall were persuaded to go along with it?”

                    You view seems to be that an evil cabal of Powell, White, Blackmun, Rehnquist, Stevens and O’Connor managed to dupe poor Brennan and Marshall into signing the majority opinion and two concurrences (and n.b. that the two concurrences were authored by Brennan). An alternate view would be that an evil cabal of Brennan and Marshall duped poor Powell, White, Blackmun, Rehnquist, Stevens and O’Connor into signing onto the various opinions.

                    Do you have evidence why your view is more likely than the other? “I dislike Team X, so anything bad must have been done by Team X” isn’t particularly persuasive. Similarly “Brennan and Marshall were easily swayed lightweights” is not persuasive, and not, I think, fair to either of those justices.

                    In particular, I think that the Occam’s Razor approach might be “All of the majority thought there ought to be some degree of immunity, but not the claimed absolute immunity, and they collectively failed to see where qualified immunity might lead”. Perhaps you can explain why blaming everyone but Brennan and Marshall for the opinions they authored and signed is appropriate instead of the simpler explanation?

                    1. I wouldn’t say it was an evil cabal. I would say that if you look at Brennan’s and Marshall’s record over the entire time they were on the Court, they were normally very suspicious of police power, frequently voted to rein it in, and this decision is an aberration for both of them. They probably didn’t appreciate that qualified immunity would in time morph into near total immunity, and I doubt very much that they would have voted as they did had they known that would be the outcome. Every judge occasionally casts a vote that is at odds with his or her larger record.

                      All that said, though, my original point still stands: Qualified immunity is a breathtaking bit of conservative judicial activism, because it furthers the conservative principle of federalism, that the federal courts should be sharply restricted in their ability to interfere with state and local officials. The viewpoint itself is a conservative viewpoint, even if a couple of liberal Supreme Court justices signed on to it.

                    2. “They probably didn’t appreciate that qualified immunity would in time morph into near total immunity, and I doubt very much that they would have voted as they did had they known that would be the outcome.”

                      Whereas, in your opinion, the other justices probably did appreciate what QI would become, and were happy to go down that path anyway? As, again, opposed to them all missing where things would go?

                      (and, in your experience, do reluctantly persuaded justices frequently author concurrences they only reluctantly support?)

                    3. You know, Absaroka, you’re imputing to me an awful lot of things that I never actually said. First you have me claiming there’s some sort of evil cabal, and now you have me claiming the liberals were reluctantly persuaded, and that the conservatives knew where things would go and the liberals didn’t. If you want to engage a view that I’ve actually taken, fine. If you’re going to just make stuff up that you claim I said, enjoy talking to yourself.

                      Neither Brennan nor Marshall (or, for that matter, any of the other members of the Court at the time) are here to ask why they voted as they did. The most that can be said is what I already did say: Given Brennan’s and Marshall’s overall record, in which they repeatedly expressed their distrust of the police and voted to keep the police in check, this particular case was an aberration for them. Aberrations happen; it changes neither the fact that Brennan and Marshall generally favored holding police power in check, nor that this was a decision grounded in federalism and therefore a conservative decision.

              2. So a liberal conception of federal power would encompass Federal courts brushing aside nonsense like sanctuary cities. Interesting. Does this also mean that liberals agree that Trump is correct as to his authority to regulate quarantine rules nationally?

                1. No, HMI, you’ve engaged in a logical fallacy known as affirming the consequent. Just because every dog has four legs does not mean that everything with four legs is a dog.

              3. “It doesn’t matter which judges wrote the decision. ”

                Glad you are coming around to my plan to eliminated signed opinions.

              4. Conservatism is a belief in the value of “hard-wrought” tradition, and, not that it shouldn’t be changed, but shouldn’t be changed willy-nilly, but rather after much debate and thought. This as opposed to liberalism, where institutions must ne overturned to better society.

                Here, it may be conservative, but is it an epitaph as you use it in this context. Your world seems to be tying something to a word, “and therefore it is bad.”

                1. Actually, there are some issues on which I agree with conservatives; I can provide a list if you like. I wouldn’t say “conservative bad”. What I would say is that it’s OK to tear down a fence so long as you understand why the fence was put up in the first place, and have reason to believe that either times have changed, or that it shouldn’t have been put up, such that we are now better off without it.

                  My point in calling it out as conservative activism is that there are some who complain incessantly about liberal judicial activism, and talk and act as if judicial activism is only found on the left. It isn’t. This is one situation in which conservatives were every bit as activist as liberals ever are, with devastating results.

                2. Conservatism is a belief in the value of “hard-wrought” tradition, and, not that it shouldn’t be changed, but shouldn’t be changed willy-nilly, but rather after much debate and thought. This as opposed to liberalism, where institutions must ne overturned to better society.

                  On the other hand, I could say that conservatives oppose change, no matter how lengthy and thorough the debate, and how strong the arguments for change.

                  I would say that if I wanted to caricature conservatives.

          2. Qualified immunity applies to both state and federal police. Whatever you think of the evils of QI (and there are many), the doctrine of federalism has nothing to do with it.

            1. Except that the case we’re talking about was a Section 1983 case, which statute is explicitly directed to abuses “under color of *state* law”. If you want to sue the feds, that is not the statute you proceed under.

  3. The NO DA’s office is probably one of the nastiest law enforcement organizations in the country.

    Jim Garrison, Harry Connick, now this guy.

    Why creating false subpoenas is not simply a crime of some sort is something I don’t understand.

    1. What about this story leads you to believe anyone (beyond, perhaps, the defendant prosecutors) has concluded that sending these “subpoenas” isn’t a crime?

      And what crime do you believe it was?

      1. Perhaps the question should be why does immunity cover criminal acts?

        And as to what crime, didn’t the decision cite the statue violated?

        1. Perhaps the question should be why does immunity cover criminal acts?

          Which criminal acts do you think are inappropriately subject to immunity?

          The decision cited the statute that outlines the procedural requirements for this type of subpoena.

          The statute does not make it a crime to issue a subpoena without complying with the requirements.

          1. This case seems to have a number of crimes — uttering forged documents, extortion under color of law — for which at least the defendant claims to be immune.
            And let’s be clear: the defendants forged documents (by issuing paperwork they had no legal authority to issue) and then threatened the plaintiff with harm if they did not comply.

            1. This case seems to have a number of crimes … for which at least the defendant claims to be immune.

              The defendants are asserting immunity from a civil lawsuit for a civil rights violation. They’re not asserting immunity to criminal prosecution.

              uttering forged documents

              The Louisiana forgery statute (La. Rev. Stat. § 72(C)(1)(a)(i)) defines “forge”, in relevant part, as making a writing that purports “to be the act of another who did not authorize that act”.

              These “subpoenas” do not appear to purport to have been authorized by anyone except the prosecutor. I suppose you could argue that they’re similar enough to genuine subpoenas that they implicitly purport to be the act of the clerk of court, but that seems like a stretch to me.

              (This is apparently what the “subpoenas” looked like, by the way: https://www.documentcloud.org/documents/3677078-Tiffany-LaCroix.html#document/p5/a3 )

              extortion under color of law

              Louisiana doesn’t have a crime called “extortion under color of law”. The general Louisiana extortion statute (La. Rev. Stat. § 66) requires proof of intent to “obtain anything of value or any acquittance, advantage, or immunity of any description”. That’s broad, but I’m not sure that it covers an opportunity to interview a witness to perform your job better.

              And let’s be clear: the defendants forged documents (by issuing paperwork they had no legal authority to issue) and then threatened the plaintiff with harm if they did not comply.

              To be clear, I’m not defending the actions of the prosecutors here. What they did was clearly wrong. At a minimum, the DA deserves to lose both his job and his law license, and most if not all of the other prosecutors probably do as well. I’m not even saying that they didn’t commit criminal offenses (and I think it would be entirely fair for this conduct to be criminal): I’m just not sure that they did, and I’m asking the people who seem to be sure to explain why.

              1. “These “subpoenas” do not appear to purport to have been authorized by anyone except the prosecutor.”

                It purports to be an act of the DA’s office, which doesn’t have the power to authorize a subpoena.

                1. It threatens a criminal penalty, jail or a fine for non compliance, is that extortion or blackmail?

                  1. To me it seems pretty clearly covered under the LA extortion statute cited by Noscitur a sociis above. Noscitur a sociis disagrees.

                2. But the statute doesn’t criminalize making a document that falsely overstated the scope of your own authority: it criminalizes making a document that falsely claims that another person has granted authority.

                  1. IIUC prosecutors, who are individuals, created documents that purport to be acts of the DA’s office, a separate entity. The DA’s office did not, and cannot, authorize such documents.

                    1. I don’t think that’s an accurate characterization: as best I can tell from the decisions and media coverage, the District Attorney directed the creation of these forms on behalf of the office and directed his assistants to complete and deliver them when they felt they needed to. The document isn’t misrepresenting what the District Attorney or the Office did.

                      On the other hand, taking a closer look I notice that the document does claim to be exercising authority under article 66, and the return of service section references “process of the Court”, which might be enough to demonstrate that it was falsely representing to be issued under the authority of the court.

                    2. “the District Attorney directed the creation of these forms on behalf of the office”

                      The office doesn’t have the authority to create the documents. So the DA can’t direct them to do so on behalf of the office. It’s just a bunch of individuals acting ultra vires to create documents that falsely purport to be acts of the DA’s office.

                    3. For example, if a criminal court judge directs a clerk to create a divorce decree granting the judge a divorce and awarding the judge the house, nobody would say that the clerk is acting on behalf of the court, would they?

                    4. Suppose the District Attorney directed them to send out letters of marque saying that the DA’s office would murder the witnesses and their families if they didn’t show up at the meeting. The DA certainly doesn’t have the legal authority to do that, but I don’t think that means that the letters are forged.

                    5. I’m not sure how the letter of marque hypo is different from this instant case. It’s a letter from individuals that purports to be an official document from the DA’s office, which didn’t and can’t authorize it.

                    6. That doesn’t make much sense. Would it be your position that since Don Corleone cannot autjorize a hit, this means he never in fact does so, and all Corkeone Family hits are therefore the sole responsibility of the individual assassins, and not the Don?

                      If we accept that a written hit order in Don Corleone’s name is a forgery because Don Corleone can’t authorize it, it would seem to follow that Don Corleone can’t have any legal responsibility for the conduct involved in the hits done in his name.

                      So your argument appears to be absolving the District Attorney of responsibility for what his subordinates were doing under his direction.

                    7. “Would it be your position that since Don Corleone cannot authorize a hit, this means he never in fact does so, and all Corleone Family hits are therefore the sole responsibility of the individual assassins, and not the Don?”

                      No, I’m saying that even though the DA, as an individual, can in fact authorize people to create a fake subpoena, the DA’s Office, as an official entity, cannot. And the fake subpoenas purport to be official acts of the DA’s Office, not just correspondence from the DA as an individual.

                  2. §72. Forgery
                    A. It shall be unlawful to forge, with intent to defraud, any signature to, or any part of, any writing purporting to have legal efficacy.

                    B. Issuing, transferring, or possessing with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute a violation of the provisions of this Section.

                    C. For purposes of this Section:

                    (1) “Forge” means the following:
                    (a) To alter, make, complete, execute, or authenticate any writing so that it purports:

                    (iii) To be a copy of an original when no such original existed.

                    From the “subpoena:”
                    “I received the process of Court of which this is a duplicate.”

                    This subpoena purports to be a copy of an original when no suck original existed.

                    So?

                    1. Of course the original existed. The original just wasn’t a valid subpoena.

                    2. Wrong! There never was a “process of the court.”

              2. “That’s broad, but I’m not sure that it covers an opportunity to interview a witness to perform your job better.”

                To “obtain..any…advantage…of any description”? What the argument that is not covered? What’s the difference between “perform[ing] your job better,” and obtaining an advantage in performing your job?

                1. Applying my favorite canon of construction, I read “advantage” to mean some sort of economic or material advantage. That’s bolstered by the fact that it’s included in a series of statutes called “Offenses against property by misappropriation with violence”. It also appears that this is a fairly serious crime (it carries a harsher penalty than robbery or residential burglary, for instance). Under your reading, it’s also hard for me to imagine a threat that wouldn’t qualify, and I’d be surprised that the legislature had swept so broadly.

                  I understand the counterargument, but I don’t think I’m convinced.

                  1. “Applying my favorite canon of construction, I read “advantage” to mean some sort of economic or material advantage.”

                    How do you read, “of any description”?

                    But in any event, doing your job better is certainly seeking an economic or material advantage. Prosecutors get paid.

                  2. As to “advantage”, while it’s both Federal and in Boston, look at the ongoing Boston Calling saga where two aides to the Mayor allegedly shook down a festival on behalf of a union. US District Court agreed with you on no personal benefit, 1st Circuit reversed.
                    See: https://boston.cbslocal.com/2019/03/28/boston-calling-extortion-charges-brissette-sullivan/

                    1. I’m not sure that a different court applying different language in a different statute to different conduct sheds a great deal of light on the question.

              3. “The defendants are asserting immunity from a civil lawsuit for a civil rights violation. They’re not asserting immunity to criminal prosecution.”

                They don’t need to, since immunity to criminal prosecution comes directly from the fact that they’re working for the people who’d be able to prosecute them, and almost certainly won’t.

              4. These “subpoenas” do not appear to purport to have been authorized by anyone except the prosecutor. I suppose you could argue that they’re similar enough to genuine subpoenas that they implicitly purport to be the act of the clerk of court, but that seems like a stretch to me.

                That’s no stretch at all. This argument is akin to claiming that a “reasonable person” has as much grasp of his constitutional rights when stopped by police as a criminal defense lawyer does.

                The average citizen doesn’t know what a subpoena is supposed to look like, or who is supposed to sign it, etc. That’s nonsense. The average citizen sees a document called a subpoena, apparently issued by the DA’s office, with threats of punishment for non-compliance, and complies. In that sense the subpoena is, de facto, a forgery. That the DA was crossing his fingers behind his back when issuing it doesn’t count.

      2. I haven’t read about a prosecution.

        IANAL, so I leave to the lawyers to figure out exactly what specific statute this practice violates. And if it doesn’t violate any, it’s time for the legislatiure to get to work.

  4. [Similar details for other professors omitted. -EV]

    Do tell 🙂

    1. Beat me to it. 🙂

    2. A follow-up post is in order.

    3. Whoops, fixed, thanks — should have been “plaintiffs,” of course. Or as you would probably prefer, “płäìñtíffs.”

      1. Well, probably “Płäìñtíffs” to be consistent 🙂

        1. Or maybe not. Whoops on me!

  5. “Similar details for other professors omitted.”

    Plaintiffs maybe? Unless I’m still not awake. Which is a distinct possibility.

  6. If a patriotic citizen ever wants to take a corrupt thug out, I can only hope to be on the jury so I can nullify.

  7. I am not a lawyer or involved professionally in law enforcement, the courts, or legislature.

    That said, I am appalled that these prosecutors have not just been charged criminally. Isn’t what they have done a crime?

    Doesn’t anyone care?

    1. What crime do you think they should have been charged with?

      1. I don’t know, IANAL; but how about fraud? Document fraud.

        To forge, counterfeit, alter, or falsely make any document…. The term “falsely make” means to prepare or provide an application or document, with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted.

        I think that’s a start, don’t you?

        1. The problem with that theory is that, as best I can tell, whatever it is you’re quoting is not an actual criminal statute in Louisiana. Indeed, the words “falsely make” do not appear in the Louisiana criminal code at all.

      2. How about these?

        §46. False imprisonment
        False imprisonment is the intentional confinement or detention of another, without his consent and without proper legal authority.

        (The person is told that they *must* appear, and they are therefore not free to leave, and are thus being detained.)

        §122. Public intimidation and retaliation
        A. Public intimidation is the use of violence, force, or threats upon any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:

        (3) Witness, or person about to be called as a witness upon a trial or other proceeding before any court, board or officer authorized to hear evidence or to take testimony.

        (The prosecutor is using threats against a witness.)

        §129.1. Intimidating, impeding, or injuring witnesses; injuring officers; penalties
        A. No person shall intentionally:
        (1) Intimidate or impede, by threat of force or force, or attempt to intimidate or impede, by threat of force or force, a witness or a member of his immediate family with intent to influence his testimony, his reporting of criminal conduct, or his appearance at a judicial proceeding;

        (The prosecutor is threatening force to influence the witness’s appearance and/or testimony.)

        1. I’ve wondered if the judge and prosecutor could be charged with witness tampering in this case, where a judge ordered a defendant to recant allegations of police misconduct as a condition of bail.

          1. It’s kind of irrelevant what they could theoretically be charged with, the US doesn’t have private prosecution. These people, though they could theoretically be charged with crimes, are almost always shielded by selective prosecution.

  8. As the 5th Circuit explains, the policy behind absolute prosecutorial immunity is not to protect the prosecutors personally, but to protect their role as participants in the judicial process, e.g. advocating for the state before the courts.

    Given this policy, it stands to reason that when prosecutors bypass the judicial process and elect not to participate in it, they also bypass the immunities that participating in the judicial process brings.

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