Sham Subpoenas and Prosecutorial Ethics

LEAD ARTICLE
SHAM SUBPOENAS AND PROSECUTORIAL ETHICS
Ira P. Robbins*
ABSTRACT
Prosecutors are given broad freedom to conduct their investigations through-
out the grand jury process; their power is not without legal and ethical limits,
however. For example, courts have discretion to quash subpoenas that have been
issued without a proper purpose.
Unlike law enforcement off‌icials who may use deceptive tactics throughout an
investigation, prosecutors are subject to professional rules of responsibility. All
lawyers are subject to some variation of Rule 4.2 of the Model Rules of
Professional Responsibility—the No-Contact Rule—which prohibits a lawyer
from communicating with a represented individual. Prosecutors, however, have
escaped the Rule’s reach by communicating with represented individuals through
the use of undercover informants.
Moreover, some prosecutors have abused the grand jury process by creating
sham subpoena documents that have targeted witnesses and victims of crime.
This practice was recently uncovered in the following jurisdictions: New Orleans
and Gretna, Louisiana, and Nassau County, New York. Such a deceptive practice
is particularly troublesome because it implicates the rights of unrepresented
individuals.
To assess the ethical implications, courts employ a case-by-case adjudication
to analyze whether sham subpoenas constitute prosecutorial misconduct. Such a
totality-of-the-circumstances approach creates an unpredictable legal framework
that recklessly disregards the legal rights of individuals and undermines the
integrity of the court. Given the signif‌icance of the legal rights at stake, a bright
line rule is necessary to protect the rights of individuals from such an abusive
tactic and to ensure the integrity of the criminal justice system.
Both the motion-to-quash remedy and the discrepancy in legal tests that
courts employ when analyzing the applicability of Rule 4.2 provide inad-
equate protection for individuals challenging sham subpoenas. Accordingly,
* Barnard T. Welsh Scholar and Professor of Law and Justice, American University, Washington College of
Law. A.B. University of Pennsylvania; J.D. Harvard University. I am more than ordinarily grateful to my superb
and indispensable research assistants—Torrence Davenport, Kaitlyn Eckrote, Nicholas Hillman, Courtney
Knippen, Molly Prindle, Sara Pugh, and Sara Toscano—whom I consider to be my colleagues and my friends,
and to Dean Camille Nelson, for providing summer f‌inancial support. © 2021, Ira P. Robbins.
1
this Article recommends a model rule, which the states or the ABA should
adopt, that specif‌ically addresses prosecutors’ fraudulent and misleading use
of sham court documents.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. CURRENT LEGAL AND ETHICAL CONTROLS ON PROSECUTORIAL MISCONDUCT 5
A. Grand Jury Subpoenas and the Role of the Prosecutor . . . . . . 5
B. Controls on Prosecutorial Misconduct . . . . . . . . . . . . . . . . . . 7
1. Legal Controls on Grand Jury Subpoenas . . . . . . . . . . . . . 8
a. Demonstrable Abuse Standard and Proper Purpose . . 9
b. Schof‌ield Rule and Proper Purpose . . . . . . . . . . . . . . 13
2. Ethical Controls on Prosecutors: Model Rule 4.2—the “No-
Contact Rule”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
II. PROSECUTORS’ USE OF SHAM SUBPOENAS AS AN INVESTIGATORY TOOL . . 18
A. Sham Subpoena Use in New Orleans, Gretna, and Nassau
County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. Undercover Informants and the No-Contact Rule Dicta Split . . 20
1. The Aftermath of Martino and Hammad . . . . . . . . . . . . . 25
2. When Does the No-Contact Rule Apply? . . . . . . . . . . . . . 27
3. What is a Sham Subpoena? . . . . . . . . . . . . . . . . . . . . . . . 28
4. The ABA’s Response Regarding the No-Contact Rule’s
Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
III. SHAM SUBPOENA PRACTICES ARE AN ABUSIVE, UNETHICAL, AND
UNCHECKED PROSECUTORIAL TACTIC . . . . . . . . . . . . . . . . . . . . . . . . . 33
A. Available Legal Controls Are Too Burdensome for
Unrepresented Individuals. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
B. Available Legal Controls Fail to Aid Defendants Who Wish to
Challenge a Sham Subpoena in the Context of Undercover
Informants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
C. The Dicta Split Has Produced an Unpredictable Application of
the No-Contact Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
1. The No-Contact Rule Does Not Apply to Unrepresented
Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2. The No-Contact Rule Should Apply Throughout a
Prosecutor’s Investigation . . . . . . . . . . . . . . . . . . . . . . . . 39
3. The No-Contact Rule Should Not Be Analyzed on a Case-
By-Case Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
IV. A NEW RULE THAT ADDRESSES SHAM SUBPOENAS AND LIKE DOCUMENTS 45
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:1
INTRODUCTION
Prosecutors can be described as the “chief law enforcement off‌icer[s]” of their
jurisdiction, and they are afforded extremely broad discretion to conduct investiga-
tions and bring prosecutions.
1
To a large extent, this “discretion is unbridled,” and
in deciding to pursue criminal charges, a prosecutor’s “decision is unassailable.”
2
Prosecutors may also be active participants in coordinating police investigations—
especially in large cities.
3
In conducting investigations, there are many creative
and atypical ways that prosecutors obtain the evidence necessary to make their
case, from supplying ingredients for drug operations,
4
to using docking facilities to
catch those involved in smuggling operations.
5
Taking their creativity to a new level, some prosecutors began using sham
subpoenas—subpoenas that have no legal foundation—as another tool to gather evi-
dence in their investigations.
6
Prosecutors started using these sham subpoenas by giv-
ing them to undercover informants who would then show them to the targets of
ongoing investigations in order to elicit incriminating responses from the targets.
7
Similarly, prosecutors use sham subpoenas as tools to maintain informants’ cover.
8
In 2017, the press uncovered sham subpoena use in New Orleans, Louisiana;
Gretna, Louisiana; and Nassau County, New York.
9
The publications alleged that
1. JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT: LAW, PROCEDURE, FORMS §§ 1.09, 1.14 (4th ed. 2019).
2. Id.
3. Id. § 1.13 (describing the role that prosecutors should have in helping to coordinate police investigations).
4. See United States v. Russell, 411 U.S. 423, 431–32 (1973) (holding that an undercover agent supplying
suspected drug manufacturers with phenyl-2-propanone, an essential ingredient of methamphetamine, did not
violate the Due Process Clause of the Fifth Amendment).
5. See United States v. Ward, 793 F.2d 551, 552–53 (3d Cir. 1986) (determining that the Drug Enforcement
Administration’s (“DEA”) involvement in an undercover operation involving drug manufacturing and
distribution, which included the DEA selling the drugs to the defendants, did not violate fundamental fairness or
due process).
6. See United States v. Martino, 825 F.2d 754, 760 (3d Cir. 1987) (discussing whether the prosecutor issued a
“sham subpoena” to an undercover informant when he issued a subpoena under the informant’s pseudonym). The
word “sham” is def‌ined as “[a] false pretense or fraudulent show,” or “[s]omething that is not what it seems.”
Sham, BLACKS LAW DICTIONARY (11th ed. 2019). The way that courts have identif‌ied and labeled subpoenas as
“sham” aligns with the Black’s Law Dictionary def‌inition; however, the Third Circuit explained that using the
word “sham” to describe a subpoena does not necessarily bear weight in analysis of a prosecutor’s actions,
especially in the undercover informant context. See Martino, 825 F.2d at 760 (explaining that a subpoena under
an informant’s pseudonym “[is] ‘sham’ in the same sense that any undercover agent using a false name or
purporting to be someone s/he is not is ‘sham,’” and thus, characterizing a subpoena as “‘sham’ does not aid in
the analysis of its propriety”).
7. See, e.g., United States v. Hammad, 858 F.2d 834, 838–40 (2d Cir. 1988) (concluding that the federal
prosecutors violated New York’s ethical rule when they gave a “sham subpoena” to an undercover informant to
show to a target of an investigation, who was represented by counsel in the matter).
8. See United States v. Ryans, 903 F.2d 731, 735–39 (10th Cir. 1990) (analyzing whether prosecutors violated
Oklahoma’s ethical rule when they issued a subpoena to an undercover agent’s alias).
9. Charles Maldonado, Jefferson Parish Prosecutors Used Fake Subpoenas Similar to Those in New Orleans,
THE LENS (Apr. 27, 2017) [hereinafter Maldonado, Jefferson Parish], https://thelensnola.org/2017/04/27/
prosecutors-in-jefferson-parish-have-used-fake-subpoenas-similar-to-those-in-new-orleans/; Charles Maldonado,
Orleans Parish Prosecutors are Using Fake Subpoenas to Pressure Witnesses to Talk to Them, THE LENS (Apr. 26,
2017) [hereinafter Maldonado, Orleans Parish], https://thelensnola.org/2017/04/26/orleans-parish-prosecutors-are-
2020] SHAM SUBPOENAS AND PROSECUTORIAL ETHICS 3

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