Thursday, August 05, 2010

Constitutional Law: Did City Atty’s Subpoena Sticker Violate Law? Just a Paper-Saving Device, He Says - ABA JOURNAL

Posted Aug 5, 2010 2:11 PM CDT
By Martha Neil

Over the past five years or so, when a municipal judge in Madison, Wis., sent out a subpoena at least some of the documents also featured an official-looking sticker asking the recipient to call the city attorney's office to discuss his or her testimony.

The problem is, the sticker wasn't part of the subpoena okayed by the judge. And state law prohibits altering a subpoena, reports the Isthmus.

The issue hit the press after one of the subpoenas was sent to a colleague of Erik Guenther, who serves as president of the Wisconsin chapter of the American Civil Liberties Union. He complained to the judge and the stickers have now been eliminated, the article reports.

However, city attorney Michael May says there was no intention to do anything wrong.

"It was an attempt by our office to provide additional information without having to include another, separate piece of paper," he tells the publication. "We affixed it below the judge's signature, right above the notation currently on the subpoena that says, 'Call 266-4511 if you have any questions.' "

You can view the original article here.

City attorney notices called improper - THE ISTHMUS

Practice of 'altering' subpoenas is halted after objections are raised

Bill Lueders on Thursday 08/05/2010

It may not qualify as the crime of the century, but Madison attorney Erik Guenther suggests it might be a crime.

On July 14, Guenther's law firm colleague, Marcus Berghahn, was served a subpoena ordering him to a hearing six days hence. The subpoena, issued by Madison Municipal Court Judge Daniel Koval, included an official-looking sticker asking Berghahn to contact the City Attorney's Office to "discuss your testimony."

The case at hand is of little matter. The City Attorney's Office subpoenaed Berghahn seeking information on a former client in connection with another case. When Guenther objected, noting that Berghahn didn't remember the individual and attorney-client privilege applied, the subpoena was withdrawn.

But Guenther, president of the Wisconsin ACLU, informed Judge Koval by letter of a larger concern: the official-looking sticker. He said the subpoena was "altered after it was issued by this court," in apparent violation of state law.

Wis. Stat. § 943.38(1) states: "Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions...is guilty of a Class H felony."

Yikes. Is the long arm of the law about to come down on the City Attorney's Office? Will uniformed officers soon be dragging City Attorney Michael May off to a dank jail cell, as he screams for mercy and claws at the ground with bleeding fingers?

Of course not. But Guenther believes a significant violation may have occurred. He notes there is no legal requirement that a witness speak to the party that sought the subpoena. Even a judge cannot compel testimony absent a grant of immunity.

"The doctored subpoena," says Guenther, "did what no court, district attorney or attorney general has authority under Wisconsin law to do: Order a witness to meet with one side to a legal controversy, outside of a courtroom or deposition."

In his case, the recipient knew his legal rights, but Guenther fears others might be conned into thinking they must to do what the sticker advises. Judge Koval, when the matter came to his court on July 20, voiced the same concern.

"The issue that I want to make sure is clear is that I don't authorize or permit these stickers put on after my signature because the impression could be that that is something that the court is ordering, that they have to contact the City Attorney's Office to discuss their testimony," he said in court, according to a recording obtained by Isthmus. "So I don't want any alterations or additions put on my subpoenas if they have my signature."

May, still a free man, confirms Guenther's suspicion that this was not the first time this sticker has been affixed. "As best as we can ascertain, this has been a regular practice for a number of years — at least five years, perhaps longer," he relates. "This is the first instance that any person has questioned it."

But, after Koval spoke out, "We immediately discontinued the practice."

Wasn't this arguably a deliberate attempt to mislead respondents into believing that a judge had ordered them to talk to the City Attorney's Office?

"We reject the charge," says May, a.k.a. Mugsy. "It was an attempt by our office to provide additional information without having to include another, separate piece of paper. We affixed it below the judge's signature, right above the notation currently on the subpoena that says, 'Call 266-4511 if you have any questions.'" It was really just an attempt to save paper.

Guenther is pleased the office has stopped "altering court-issued subpoenas." And while he believes the practice did subvert a subpoena's limited purpose — to compel a witness to give testimony "in the presence of both sides" — he doesn't believe May intended to deceive subpoena recipients, an element in whether a crime was committed.

Finally, Guenther says the whole episode — in which a single spirited objection brought a longstanding practice to a screeching halt — "illustrates the need for defense counsel to check the actions of the government. Absent an adversarial system, even well-meaning prosecutorial overreaching may go unaddressed."