CHICAGO — Some Cook County prosecutors have been instructed not to subpoena witnesses on dates when their testimony is not required in court, the Tribune has learned, ending a common practice of seek court orders summoning witnesses to meet with prosecutors before trial.
A spokesperson for Cook County State’s Attorney Kim Foxx said formal guidelines on the use of subpoenas are in the works but have not been finalized. However, prosecutors in 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 alleged it was unconstitutional and abusive to subpoena witnesses simply to help prosecutors prepare for trial.
Criticism of the pre-trial subpoenas intensified after news of the lawsuit, which was filed in the name of a young mother who spent three weeks in jail for failing to respond to a subpoena that summoned her to the prosecutors’ offices to prepare.
The subpoena process is about coercing someone to appear in court — not their cooperation with prosecutors, legal observers have said. Defense lawyers have also long criticized this practice, particularly when it results in the confinement of witnesses.
The practice of seeking subpoenas for trial preparation is common for some Cook County prosecutors, and some judges have even encouraged them. But in parts of the state’s attorney’s office, such subpoenas were largely dropped years ago, sources told the Tribune.
Some grassroots prosecutors have also recently been instructed to notify supervisors if they wish to file contempt charges against individuals who do not comply with subpoenas, suggesting that such subpoenas may not be consistently enforced, which, according to them, could make it more difficult to get witnesses through even on trial dates.
A spokesperson for Foxx’s office reiterated that no new policy has been finalized and said it will address any concerns raised by staff as official guidance is finalized.
The heart of the problem is difficult to solve with any policy: many people simply do not want to cooperate with the police or the prosecutors.
Multiple courthouse sources, including longtime prosecutors, were candid about the reasons. Members of communities affected by violence often fear for their safety if they are known to be cooperators. No one wants to sit in a room full of strangers and recount the most traumatic experiences of their life. And some witnesses just don’t trust law enforcement.
But a case rises and falls over their physical presence in court. Consequently, some prosecutors went to great lengths to secure the appearance of reluctant witnesses and demanded the incarceration of those who dodged subpoenas for trial and for trial preparation.
There are signs that can change. On May 6, the day some prosecutors received new subpoena guidelines, Circuit Judge William Gamboney presided over an unusual hearing for a man accused of skipping a subpoena ordering him to testify at trial.
Prosecutors in the Gamboney courtroom that day were seeking to have the man found in contempt of court for allegedly dodging a court summons, according to court records and a transcript of the hearing. The accused was tried 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, some time later, they returned to court and took the unusual step of asking that he be released pending the hearing.
A spokesperson for Foxx’s office declined to comment on why prosecutors are asking for his release.
Gamboney denied that request, saying he was “a little flabbergasted”. The verdict in the case could have been different had he appeared to testify, Gamboney said.
“It goes in the direction of what we do every day to earn a living. If people can walk out, not respond to subpoenas, eyewitnesses to murder cases and walk away, I have no confidence that he (he) will ever show up again,” Gamboney said , according to a transcript. “…He issued a subpoena bearing my name in a murder case.”
(Jason Meisner of the Chicago Tribune contributed.)