South Carolina Criminal Defense Blog

The New York Times reported today on a grand jury subpoena issued by the Bronx DA's office, seeking to compel information about anonymous bloggers on a political blog called Room 8.

The subpoena carried a warning in capital letters that disclosing its very existence “could impede the investigation being conducted and thereby interfere with law enforcement” — implying that if the bloggers blabbed, they could be prosecuted.

Imposing the equivalent of a judicial gag order and threatening prosecution if the subpoena is disclosed is not within the authority of the DA, and, without a judicial order, was a clear abuse of power. The DA's office said that "it was not uncommon for subpoenas to include nondisclosure language in order to protect an investigation," but then stated that the DA was not aware that a subpoena had been issued nor was he aware of the content of the subpoena.

Simple Justice suggests that it may be no coincidence that this tactic was used on bloggers, few of whom could afford to pay for lawyers to fight the DA's office on issues like this. Room 8 was lucky in that competent local counsel came to their assistance pro bono.

Abuse of subpoenas by prosecutors or law enforcement is not isolated to New York. In South Carolina, subpoena's are often issued by law enforcement, when there is no active court case, captioned, "State v. ongoing investigation," which is also an abuse of the subpoena power. If there is no court case, law enforcement has to obtain a search warrant signed by a judge and based upon probable cause before they can compel the production of records. A subpoena on the other hand does not require a finding of probable cause by a judge, and is obtained in a criminal case simply by asking the clerk of court to sign at the bottom.

We have a Fifteenth Circuit Assistant Solicitor who repeatedly mails subpoenas to out of state witnesses, commanding them to appear in court in Horry County, S.C. After explaining to him off the record why he cannot do that (the subpoena must be domesticated by a judge in the witness' home state), and why it is also inappropriate to threaten to send S.C. law enforcement to arrest the witness in another state where they do not have jurisdiction, he acknowledges that is inappropriate and he misunderstood the law. Yet, today, more than a month later, another witness in another trial calls and then faxes to my office a non-domesticated Horry County subpoena that was mailed to her in Maryland, commanding her to appear, by the same Asst. Sol. I'm sure, like the Bronx DA, he did not realize a subpoena was issued. Or what its contents were.

Prosecutors do not have to go outside of the law to win cases. If they do, the case should not have been won in the first place.