Some Cook County prosecutors have been instructed not to subpoena witnesses for dates when their testimony is not required in court, the Tribune has learned, halting a common practice of seeking court orders to subpoena witnesses to meet. with prosecutors before trial.
A spokesperson for Cook County State’s Attorney Kim Foxx said official guidance on the use of subpoenas is in the works but has not yet been finalized. However, prosecutors in some parts of the office received the instruction last week, multiple sources confirmed.
The notice came days after a lawsuit filed in federal court last week argued that it is unconstitutional and abusive to subpoena witnesses simply to help prosecutors prepare for trial.
Criticism of the trial preparation subpoenas grew louder after word spread about the lawsuit, which was filed on behalf of a young mother who spent three weeks in jail for failing to respond to a subpoena summoning her. to prosecutors’ offices for preparation.
The subpoena process is meant to compel someone to appear in court, not their cooperation with prosecutors, legal observers said. Defense attorneys have also long criticized the practice, particularly when it results in the jailing of witnesses.
The practice of seeking subpoenas to prepare for trials has been commonplace for some Cook County prosecutors, and some judges even encouraged them. But in parts of the state attorney’s office, such subpoenas were largely abandoned years ago, the sources told the Tribune.
Some base prosecutors have also recently been instructed to notify supervisors if they want to seek contempt charges for people who don’t comply with subpoenas, leading to speculation that such subpoenas won’t be consistently served, which they said, could make things difficult. getting witnesses through the door even on trial dates.
A spokesperson for Foxx’s office reiterated that no new policy has been finalized and said they will address any concerns raised by staff as official guidance is finalized.
The core of the problem is difficult to address with any policy: many people simply do not want to cooperate with the police or prosecutors.
Multiple judicial sources, including longtime prosecutors, were candid about the motives. People in communities affected by violence often fear for their safety if they are known as cooperators. No one is eager to sit in a room full of strangers and recount the most traumatic experiences of their lives. And some witnesses just don’t trust law enforcement.
But a case rises and falls on his physical presence in court. Therefore, some prosecutors have gone to great lengths to ensure the appearance of reluctant witnesses and have called for the jailing of those who evade subpoenas for trial and trial preparation.
There are signs that they may be changing. On May 6, the day some prosecutors received new subpoena guidelines, Circuit Judge William Gamboney presided over a rare hearing for a man accused of skipping a subpoena ordering him to testify at trial.
Prosecutors in Gamboney’s courtroom that day were seeking to have the man held in contempt of court for allegedly evading the subpoena, according to court records and a transcript of the hearing. The accused went to trial in March without the testimony of this witness and was acquitted.
Prosecutors initially registered no objection to Gamboney keeping the man in custody pending a contempt hearing. But then, an unspecified amount of time later, they went back to court and took the unusual step of asking to have him released pending the hearing.
A spokesman for Foxx’s office declined to comment on why prosecutors called for his release.
Gamboney denied that request, saying he was “a little stunned.” The verdict in the case could have been different if he had come forward to testify, Gamboney said.
“This goes to the fabric of what we do for a living every day. If people can walk away, not respond to subpoenas, eyewitnesses in murder cases and walk away, I have no confidence that (he) will ever show up again,” Gamboney said, according to a transcript. “…he rushed to a subpoena that had my name on it in a murder case.”
Jason Meisner of the Chicago Tribune contributed.