Subpoena Power Subject of Debate
Saturday, February 7, 2009
D.C. Attorney General Peter J. Nickles told a D.C. Council committee yesterday that he believes his office has the legal authority to subpoena private records without the approval of a grand jury. But opponents called his assertion mistaken and said such power would be a threat to civil liberties.
Also yesterday, Mayor Adrian M. Fenty (D) reintroduced an anti-crime bill that he first proposed in October, with revised provisions aimed at limiting gang activity and enforcing gun laws. The new provisions would create a registry for gun offenders and enhance efforts to deter at-risk young people from joining gangs. The bill also would make it a crime to possess a gun in a vehicle.
"You have to approach crime from different angles," Fenty said as he stood on the corner of Mississippi Avenue and Sixth Street SE. "We are giving tools to law enforcement and doing it in areas that really need it. There is a youth angle, an incarceration angle, the returning residents [ex-offenders], the possession of firearms angle."
On the subpoena issue, Nickles appeared before two members of the Committee on Public Safety and the Judiciary, arguing that D.C. law empowers Fenty to issue subpoenas. Nickles also said that Fenty was within his authority in November when he delegated the power to Police Chief Cathy L. Lanier. After council members stripped Lanier of that power last month, citing civil liberty concerns, Fenty gave the responsibility to Nickles.
Traditionally, when law enforcement officials are seeking private records in a criminal investigation, they ask prosecutors to obtain a subpoena from a grand jury. The process can take several days.
Nickles and Lanier said yesterday that in fast-moving case -- for example, in the hours after a slaying-- detectives often need quick access to cellphone call logs, car rental records and other information. Companies, on the advice of lawyers, usually decline to give up customers' private records without subpoenas. Delays in obtaining subpoenas can hamper cases, Nickles and Lanier said.
Officials with the D.C. Public Defender Service, the D.C. Association of Criminal Defense Lawyers and the local chapter of the American Civil Liberties Union told the committee chairman, Phil Mendelson (D-At Large), that allowing law enforcement authorities to seize private records without the approval of a grand jury or judge would violate constitutional principles.
Nickles said he has not issued any subpoenas for records being sought by D.C. police in criminal cases. "I want to assure the council that I will put in place procedures to make certain that my subpoena authority is used prudently," he told Mendelson in written testimony.
Mendelson said he intends to push for legislation that clearly defines what subpoena power, if any, will be vested in the mayor's office. In the meantime, Mendelson said that if Nickles tries to issue subpoenas, he will ask the council to pass emergency legislation stripping Nickles of the authority, as it did with Lanier last month.
"If you want to give them that power, then clarify the power," said Richard Gilbert of the defense lawyers association, urging that the council at least pass a bill limiting the power of the attorney general to issue subpoenas.
Laura E. Hankins, special counsel to the director of the public defender service, said Nickles has misinterpreted the D.C. law that he believes grants the executive branch subpoena power. Hankins said that law gives the mayor's office the power to issue subpoenas for records and testimony only in internal city government cases involving personnel matters, not criminal probes by police in the community.
Stephen M. Block, legislative counsel to the ACLU of the National Capital Area, said that allowing the attorney general to issue orders for private records, without independent review by a judge or grand jury, would be a subpoena system "of the prosecutor, by the prosecutor, for the prosecutor."
But Nickles said the attorneys general in several states have subpoena power in criminal probes. He also reminded the council that his office has subpoena authority to order the surrender of private records in Medicaid fraud cases.
Staff writer Hamil R. Harris contributed to this report.