In Singleton v. Cannizarro, decided April 21, 2020, the Fifth Circuit Court of Appeals held that prosecutors in New Orleans, Louisiana who issued illegal subpoenas that directed witnesses and victims to appear at their office for interviews were not entitled to absolute immunity.

Some local SC prosecutors should probably take notice… other opinions that have reached the same conclusion include Lacey v. Maricopa County, 693 F.3d 896, 913–14 (9th Cir. 2012), and Simon v. City of New York, 727 F.3d 167, 172 (2d Cir. 2013).

What is absolute immunity, and when does it not apply to prosecutors?

What is Absolute Immunity for Prosecutors?

You may have heard about qualified immunity – a legal doctrine that is often used to protect police officers and other government officials from lawsuits.

But what about absolute immunity?

Where police officers are given qualified immunity, prosecutors are given absolute immunity from lawsuits under 18 USC Section 1983 for “damages claims based on activities intimately associated with the judicial phase of the criminal process.”

The United States Supreme Court has said, see Imbler v. Pachtman, 424 U.S. 409 (1976), that a prosecutor cannot be sued under Section 1983 for violating a defendant’s constitutional rights when the prosecutor’s actions are “within the scope of his duties in initiating and pursuing a criminal prosecution.”

Prosecutors do not, however, get absolute immunity simply because they are a prosecutor – the justification for absolute immunity is based on their participation in the judicial process.

For example, the US Supreme Court has distinguished 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.” Buckley, 509 U.S. at 273.

Violate a defendant’s constitutional rights by making an outrageous argument during trial or by refusing to dismiss a case that you can’t win? Absolute immunity.

Violate a defendant’s constitutional rights by ordering them to be detained at a crime scene without probable cause? No absolute immunity.

When a Prosecutor Acts Outside of Their Quasi-Judicial Role

There are two justifications for the doctrine of absolute immunity. 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.” Marrero, 625 F.2d at 507 (quoting Butz v. Economou, 438 U.S. 478, 511 (1978)); see also Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009) (noting that “public trust” would suffer if prosecutors were thinking about their own liability in making prosecutorial decisions).

A prosecutor (or defense attorney) should not have to worry about the possibility of civil liability when they are arguing their case in a trial or when they are making charging decisions in a case. As with a judge or a juror, imposing liability for decisions made within the judicial process would “interfere… with the effective functioning of the criminal judicial system.”

Safeguards? What Safeguards?

The second justification for absolute immunity is that “the safeguards built into the judicial system tend to reduce the need for private damage actions as a means of controlling unconstitutional conduct.”

What safeguards?

In SC, it doesn’t matter if a prosecutor commits unethical conduct in the courtroom or on the street – there are no meaningful safeguards to control unconstitutional conduct.

Trial courts rarely acknowledge unethical conduct by prosecutors in the courtroom, and often go to great lengths to protect the prosecutor, for example by making a finding of “no prosecutorial misconduct” on the record.

Appellate courts rarely reverse a conviction based on a prosecutor’s unethical conduct and, in most cases, it is a non- issue on appeal.

Prosecutors can almost never be held liable in civil court for unethical conduct that harms defendants or witnesses, because… absolute immunity.

SC’s Office of Disciplinary Counsel (ODC) rarely disciplines prosecutors and, even in cases where there is documented evidence of misconduct (see below), will quickly dismiss grievances that are filed against prosecutors.

So, what safeguards are “built into the judicial system” that control unconstitutional conduct? None in South Carolina.

No Absolute Immunity for Illegal Subpoenas

The plaintiffs/ witnesses in the Fifth Circuit case sued New Orleans prosecutors, asking for monetary damages for issuing illegal subpoenas that directed the witnesses to appear at the prosecutors’ office for interviews:

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. See LA.CODE CRIM.PROC. ANN. art. 66.

At least one plaintiff was later arrested on a material witness warrant “based on [her] refusal to meet with the Office,” while others received multiple subpoenas forcing them to appear for interviews at the District Attorney’s office, instead of compelling them to appear in court for testimony.

Because the illegal subpoenas were outside of the proper judicial process, the Fifth Circuit held that the plaintiffs’ lawsuit can go forward and the prosecutors are not protected by absolute immunity.

That Doesn’t Happen in SC Does It?

Prosecutors have engaged in similar practices in South Carolina, including:

• Issuing “fake subpoenas” directing witnesses to appear for interviews at the solicitor’s office when there are no court proceedings,
• Keeping a clerk of court’s signature stamp in the solicitor’s offices to circumvent the requirement of getting the clerk’s signature on criminal subpoenas,
• Allowing investigators to issue subpoenas without supervision or review by prosecuting attorneys,
• Issuing subpoenas before a criminal case has been filed (why ask a judge for a search warrant when we can just print a subpoena?), and
• Mailing illegal subpoenas to witnesses outside of the state without following the requirements of SC law.

An attorney I shared office space with years ago was contacted by a witness who shared with the attorney a subpoena the witness had received that instructed him to appear at the Fifteenth Solicitor’s Office for an interview. There were no court proceedings scheduled, but there were additional instructions typed on the subpoena that stated, “failure to appear in court pursuant to this subpoena constitutes contempt of court.”

Two other witnesses had received the same subpoena, related to the same case (which was not the attorney’s case – it was a cold call from a witness who wasn’t sure what to do).

The attorney sent a letter (a “grievance”) to the Office of Disciplinary Counsel (ODC) that included a copy of the subpoena as well as a transcript from an unrelated hearing where the Fifteenth Circuit Solicitor (now state Senator Greg Hembree) testified under oath that his office:

…maintained stamps with the Clerk’s signature in the Solicitor’s Office which were kept by the Solicitor’s Office investigators and secretaries, that they did not keep track of those stamps or who had possession of them, that they used those stamps to issue subpoenas without the Clerk’s review or signature, that they allowed the Solicitor’s Office investigators to issue subpoenas without supervision or review by prosecuting attorneys, that they issued subpoenas duces tecum before any case had been filed, that they issued subpoenas and sent them out of state without regard to the requirements for out of state subpoenas, that they failed to provide any training to prosecuting attorneys or support staff as to the issuance of subpoenas, and that they issued subpoenas commanding witnesses to appear at the Solicitor’s Office for interrogation.

ODC promptly responded, dismissing the complaint and stating that, despite the attorney having provided them with a copy of the subpoena and a transcript, ODC had determined that there “is no evidence of any such lawyer misconduct on the part of [the assistant solicitor] arising out of the events mentioned in your complaint and that further investigation would not likely reveal any such evidence.”

The attorney replied, asking for a further review and pointing out Ethics Advisory Opinion No. 01-05 (which prohibits the use of a subpoena before there is an open General Sessions case or the use of any evidence obtained with such a subpoena) and the SC Supreme Court opinion In Re Boyce, 639 S.E.2d 44 (S.C. 2006) (where an attorney in private practice was reprimanded when her paralegal issued an improper subpoena in the attorney’s name), but ODC again declined to pursue the matter.

The saga ended with the Chief Administrative Judge for the Fifteenth Circuit signing an Order ordering the Fifteenth Circuit Solicitor’s Office not to subpoena witnesses to their office. Did the practice end? Do the Fifteenth Circuit’s assistant solicitors know, seven years later, that the Order exists?

There should be no absolute immunity for unethical conduct such as issuing illegal subpoenas to witnesses – 1) it is outside of the judicial process because it is illegal, and 2) there are no safeguards to control unconstitutional conduct by prosecutors in this type of situation.

ODC will approve unethical conduct by a prosecutor in a criminal case, even as they discipline a solo attorney in private practice for the exact same conduct. There is no judicial remedy when you receive an illegal subpoena forcing you to appear at the solicitor’s office – other than a Section 1983 lawsuit for damages for violation of the witness’s constitutional rights.

SC Criminal Defense Lawyer in Charleston, SC

If you have been charged with a crime in SC or believe you are under investigation, call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.