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G. Ben Cohen Law Offices 

636 Baronne Street New Orleans, Louisiana 70113 

504­529­5955  JAMES T. DALY Screening Counsel OFFICE OF DISCIPLINARY COUNSEL 4000 S. Sherwood Forest Blvd., Suite 607 Baton Rouge, Louisiana 70816 By Fax (225-293-3300) Re 2012-ADMIN-756 Open Investigation File No. 28942 In Re District Attorney Leon Cannizzaro

July 18, 2012 Dear Mr. Daly, I am in receipt of your letter dated June 19, 2012. I wanted to follow up with several points of clarification, specifically urging your office to conduct an independent investigation into the conduct of District Attorney Cannizzaro concerning the Jamaal Tucker case in light of the allegations made by Assistant District Attorney Eusi Phillips. As you are aware, I filed a complaint against Assistant District Attorney Eusi Phillis and District Attorney Leon Cannizzaro. At the outset of the letter I advised that, at that time, “I am unable to discern whether the misconduct herein was attributable solely to Assistant District Attorney Eusi Phillips prosecuting the case, or whether District Attorney Leon Cannizzaro was both personally responsible as well as responsible in his supervisory capacity.” (Disciplinary Complaint No. 28942). At the time I filed my complaint against Mr. Cannizzaro, I noted “Mr. Cannizzaro’s personal involvement in the conduct giving rise to a Brady violation remains unknown.” However, Assistant District Attorney Eusi Phillips’ recent assertions to disciplinary counsel establish that Mr. Cannizzaro had personal involvement in the Brady violation. In the disciplinary process that has unfolded, information has been furnished that if true would establish that Mr. Cannizzaro has personally committed a number of violations of the Rules of Professional misconduct. A

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description of Mr. Cannizzaro’s conduct follows. The Rules of Professional Conduct at issue are:

RULE 3.8. SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

. . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; . . .

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

RULE 3.3. CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

RULE 3.4. FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not:

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(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;

RULE 3.6. TRIAL PUBLICITY

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

RULE 4.1. TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; . . .

CLAIM I. District Attorney Cannizzaro violated Rules 3.3, 3.4, 3.8, and 4.1 of the Rules of Professional Conduct when he failed to disclose the leniency secured by Morris Greene for testifying against Jamaal Tucker, failed to correct Morris Greene’s testimony that he was not expecting leniency, assisted Morris Greene in concealing his false testimony, and attempted to avoid his obligation to disclose his deals with Morris Greene. Jamaal Tucker was facing prosecution for the second degree murder of David Sisolak. The State had no forensic evidence, no confession, and a single

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eye-witness Joseph Allen (discussed later), who had stated that he had been given incentives to identify Tucker as the perpetrator. The state turned to jailhouse informant Morris Greene. Prior to his testimony, he had been writing letters to the prosecution saying:

When I first got involved in this, first I talked to Ms. Francesca Bridges [an Orleans Parish Assistant District Attorney] and then I spoke with Mr. Orlando Matthews [the lead detective]. After giving my statements to them, I was asked if there was anything that I wanted . . . I informed Ms. Bridges as well as Mr. Matthews that I wanted the reward money and I wanted help getting my time cut. It was my testimony before the Grand Jury that led to the Indictment of Jamal [sic] Tucker. . . . I know that as far as getting my time cut, you can’t make any promises Before the trial, But I am entitled to the reward Because, it clearly states that I am Entitled to the money for information that leads to the arrest + Indictment. . . . You, Mr. Phillips, Guaranteed me that I would be transferred from here and I have not.

Mr. Greene concluded his letters emphatically:

I will not allow your Department to use me without any of the incentives I’m entitled to. . . . I will not testify if I do not get transferred from here . . . Hold up your end and I’ll hold up mine.

Mr. Cannizzaro did not disclose these letters.1 At trial, Morris Greene insisted that he had neither received nor expected any leniency in exchange for his testimony against Jamaal Tucker. As he explained on direct examination:

1  In addition  to  the  “time cut” Morris Greene received  following his  testimony, his DOC  records  reveal  that  he  was,  in  fact,  transferred  from  Avoyelles  Correctional Center to Allen Correctional Center less than three months after he wrote that letter to the State—and nearly five months before he testified that he had not received any benefit in exchange for his testimony. 

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MR. PHILLIPS: And I want to ask you this, have you ever been offered, or promised anything by anyone to come forward?

MR. GREENE: No, I haven’t been promised or offered

anything. I did that out of the goodness of my heart, you know what I’m saying.

MR. PHILLIPS: You expecting anything out of this? MR. GREENE: No, I don’t expect anything.

. . .

MR. GREENE: I’m here today to provide testimony so

David’s family can have closure, that’s all. I can’t get nothing out of it, you know. I’m not here for myself at all. I feel as though if I wouldn’t came forward, they wouldn’t, you know, Jamaal Tucker would have probably went out, you know, that’s why I’m here, you know, strictly for the family. That’s all.

This was unquestionably perjury; and the State knew it. Morris Greene provided similar testimony in the face of defense counsel’s cross-examination:

DEFENSE: Isn’t it true that you’ve told a number of people at Basile that you would do anything to get out of jail, including lie to the court?

MR. GREENE: Check this out, if you meaning about –

my testimony here doesn’t benefit nothing as far as me getting out of jail. I caught my charge in Lafayette Parish. It has nothing to do with Orleans Parish. Orleans District Attorney can’t do nothing for me, man.

I’m doing this because, to clear my conscious of what he told me

and for the family of David Sisolak to

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have closure, and for the record, man, I’m going to get out of jail anyway, because, you know, I mean, I don’t have life. All I have is fifteen years. . . .

MR. GREENE: . . . I’m trying to get myself out of prison through the court’s, [sic] not by coming here and testifying on Jamaal Tucker for the District Attorney. What the district attorney going to do for me? Lafayette Parish –

DEFENSE: They brought you here today, didn’t

they? MR. GREENE: -- and Orleans Parish is two, two

different parishes. Excuse me? DEFENSE: The district attorney was responsible

for you being here today, weren’t you? MR. GREENE: Yeah, and that’s my purpose of writing

the letter, to tell what Jamaal Tucker told me.

DEFENSE: And it’s your honest expectation that

the District Attorney, Leon Cannizzaro, does not send a letter to Lafayette Parish? You don’t expect him to send a letter to Lafayette Parish detailing your assistance in this case?

MR. GREENE: I haven’t been told nothing like that,

and plus, they never even promised me anything. I ain’t, I have no agreement with the district attorney on anything.

DEFENSE: I just asked you whether that was

your expectation. MR. GREENE: Well, no, for what?

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DEFENSE: And it’s not your expectation that Mr.

Phillips sends a letter, or calls the Lafayette Parish District Attorney to let them know about your assistance?

MR. GREENE: No, no –

Not only did Mr. Cannizzaro fail to disclose the letters written by Morris Greene at that time, he failed to correct his testimony. At the time that Morris Greene testified that he could expect no leniency from Mr. Cannizzaro, Morris Greene and Leon Cannizzaro knew that Mr. Cannizzaro was planning to call the District Attorney’s Office in Lafayette and assist Morris Greene in securing relief. While Morris Greene was told that he could not get a deal in writing, he was also informed that would get assistance from Mr. Cannizzaro if he testified. Indeed, it appears that Morris Greene was counseled by Mr. Cannizzaro and/or Eusi Phillips to refrain from requesting a deal in writing so that the deal would not have to be disclosed to defense counsel. Mr. Cannizzaro was present at the trial when Morris Greene falsely testified, or was aware of his false testimony, and did nothing to correct his dishonest statements. He did not disclose the favorable evidence reflecting Morris Greene’s interest in and receipt of financial payment in exchange for his testimony. After Morris Green testified, Mr. Cannizzaro did not call defense counsel and inform them of Mr. Greene’s perjury. Rather he called the Lafayette District Attorney’s Office, and sought leniency for Mr. Greene. Until he was confronted with a transcript reflecting the fact of his call, Mr. Cannizzaro denied doing this and did not disclose that he had done this. Further, until the point at which he was to be subject to cross-examination, Mr. Cannizzaro made multiple false statements in the media asserting that he had complied with his Brady obligations. The letter written by Mr. Eusi Phillips makes clear that District Attorney Leon Cannizzaro was personally involved in the Brady violations and professional misconduct. Mr. Phillips asserts:

During my initial meeting with Mr. Greene, which was either late 2009 or early 2010, he asked if it was possible that his sentence would be reduced as a result of his

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testimony. I explained to him that that would not happen and my only concern was speaking with him regarding his knowledge and preparing the case for trial. . . .

After my initial meeting with Mr. Greene, I met with Mr. Cannizzaro to discuss the case. My reason for doing so was because Mr. Cannizzaro advised me to keep him informed as to the progress of the case as the family of the victim was persistent in contacting the office regarding the status of the case. During that meeting with Mr. Cannizzaro, I advised him that everything went well with Mr. Greene, however, at one point during the interview, he [Greene] asked if his testimony would affect his sentence.

Eusi Phillips Letter, Dated March 16, 2012 Page 3 of 5. Attached. Assistant District Attorney Phillips then asserted that he informed Mr. Cannizzaro of his response to Morris Greene’s question. Mr. Phillps then asserted that there were conversations between Mr. Cannizzaro and the Lafayette Parish District Attorney’s office, in which Green’es involvement in the Orleans case was discussed. In contrast to his obligation to turn over favorable evidence, Mr. Cannizzaro never disclosed that he had conversations with Morris Greene and the prosecutors in the Lafayette Parish District Attorney’s office concerning potential leniency in exchange for testimony. CLAIM II. District Attorney Cannizzaro violated Rules 3.3, 3.4, 3.8, and 4.1 of the Rules of Professional Conduct when he failed to disclose Joseph Allen would avoid perjury charges in exchange for testifying against Jamaal Tucker, failed to correct Joseph Allen’s testimony that he was not expecting leniency, assisted Joseph Allen in concealing his false testimony, and attempted to avoid his obligation to disclose his deals with Joseph Allen. Joseph Allen gave an initial inculpatory statement to the police, that formed the basis for Jamaal Tucker’s arrest. Whether Allen (or his family) received crime-stopper’s reward or other incentives for this information remains unknown. At Tucker’s initial trial, however, Mr. Allen recanted his prior statements, said that he had been induced by the police to give the statement, and testified that he had not witnessed the murder. Joseph Allen was then arrested and charged with perjury. Facing up to 40 years in prison for perjury in a second degree murder case, Mr. Allen ultimately changed his testimony and alleged that Jamaal Tucker was responsible for the murder.

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Significantly he denied any expectation of a deal or leniency in exchange for his testimony. After he testified, however, the charges against Mr. Allen were essentially dropped altogether.2 In Mr. Phillips’ letter to Disciplinary Counsel, Mr. Phillips details Leon Cannizzaro’s personal involvement in the undisclosed effort to secure leniency for Joseph Allen:

I had no discussions with Mr. Allen, or his attorney Kevin Kelly, regarding the handling of the perjury charge. I was informed by Mr. Kelly after the trial that he had been involved in discussions with Mr. Cannizzaro regarding resolving Mr. Allen’s charges. . . . I was approached numerous times after trial by Mr. Kelly regarding Mr. Allen’s perjury charge, however, I advised that he speak with Mr. Cannizzaro as I was no longer involved in the matter.

Id. at 4 of 5. It is specifically these conversations, involving and ultimately securing, leniency on behalf of Mr. Allen and Mr. Greene that formed the subject of the Brady violation and the violation of the Rules of Professional Responsibility. Significantly, with full knowledge that he had engaged in efforts to secure leniency on behalf of Mr. Allen and Mr. Greene, and without disclosing these efforts to defense counsel, Mr. Cannizzaro initiated public statements to the media insisting that he had disclosed all potentially favorable material and castigating defense counsel for raising the Brady issue. Mr. Cannizzaro submitted a Letter to the Editor in the Times Picayune, asserting he had complied with his Brady responsibilities in the Tucker case. Mr. Cannizzaro then participated in a lengthy interview with the Gambit, in which he again denied that he had withheld Brady information, and suggested that the issuance of a subpoena for him to testify in the Tucker case was some type of political attack. 2 The trial court apparently expressed concern to the State that they would drop the perjury  charges  if  Mr.  Allen  changed  his  testimony  and  assisted  in  Mr.  Tucker’s prosecution. The State vehemently insisted that this would not occur, and that they would  fully  pursue  felony  perjury  charges  against  Mr.  Allen,  regardless  of  the outcome  of  Mr.  Tucker’s  trial.  Despite  this  assertion,  however,  the  State  [Mr. Cannizzaro?]  ultimately  allowed  Mr.  Allen  to  plead  guilty  to  one  count  of misdemeanor  criminal  mischief,  for  which  he  was  sentenced  to  time  served—80 days.  

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This personal involvement in the effort to secure non-disclosed deals with State witnesses, and the statements to the media claiming the contrary, constitute a violation of Rules 3.8 and 4.1. While it is true that any action involving an elected District Attorney presents considerable issues, it is because of the central role that Mr. Cannizzaro plays in setting the standards for the conduct of his office and the role of prosecutors in Louisiana, that warrant investigation into his personal actions in this case. Please do not hesitate to contact me with any questions or concerns.

Sincerely,

G. Ben Cohen