|U.S. District Court Judge Kurt Engelhardt|
To be sure, most would say that federal prosecutors were wrong to rant on NOLA.com about targets and defendants. But how can the piddly sputtering from commenters with handles like “dramatis personae” justify reopening the city’s deep wound? It seems imbalanced.
Engelhardt spent 129 pages justifying his order for a retrial. He noted the unprecedented nature of the online shenanigans: how First Assistant U.S. Attorney Jan Mann and federal prosecutor Sal Perricone used “social media to circumvent ethical obligations, professional responsibilities, and even to commit violations of the Code of Federal Regulations” (page 4 of order). Mann, Perricone and their boss, longtime U.S. Attorney Jim Letten, all retired in 2012 as the comment scandal unfolded.
The “news” from the order was how Engelhardt, after repeated inquiries, finally squeezed out a key finding from the Department of Justice’s investigation into the scandal: Karla Dobinski — the trial attorney from Washington’s Civil Rights Division charged with safeguarding testimony by Danziger defendants that had been ruled inadmissible in the federal trial — also had written anonymous comments.
In my view, Engelhardt’s order borders on the heroic. He could have taken the easy way out and accepted at face value the Department of Justice’s weak investigation of the online comments: a few harsh words for the government, a shake of the head at all this newfangled internet weirdness, and a reluctant denial of the Danziger defendants’ motion for a retrial.
Opinion writers were unconvinced by the judge’s conclusions:
The Advocate’s Stephanie Grace argued that some of the comments by Perricone, Mann, and Dobinski may have been bad, but they were not made by the prosecutors who actually tried the Danziger case nor did it seem likely that they had influenced the jury. Despite the “many, many offenses” chronicled by Engelhardt, Grace submits that the Danziger trial was a good prosecution and wasn’t demonstrably skewed by the “totality of the circumstances” now catalogued by the judge.
James Varney from NOLA.com/The Times-Picayune made similar points. Playing devil’s advocate, he downplayed the prosecutors’ online comments: Sure, the rants may have been a stupid move, he wrote, but they didn’t justify Engelhardt’s “nuclear” decision to vacate the verdict. (Referring to Mann and Perricone, Varney adds: “They were, it could be argued persuasively, simply exercising their First Amendment rights in an admittedly goofy sort of way.” That’s Perricone’s argument, and I think it’s well worth a debate. Group me among the unpersuaded.)
Not mincing words, the editors at The Washington Post called Engelhardt’s “emotional 129-page ruling unconvincing in the extreme:”
Judge Engelhardt is right that the online comments were egregious, unjustifiable, unprofessional abuses of authority on the part of the lawyers. … However, his conclusion that the online postings created a “prejudicial, poisonous atmosphere” that justified throwing out the convictions is a huge stretch. By that logic, overturning the convictions might also be justified by the TV show “Treme,” which began airing on HBO 14?months before the officers’ trial and depicts the New Orleans police as corrupt, brutal and violent. It’s a safe bet that more New Orleanians have seen “Treme” than the prosecutors’ online postings.The focus on the lack of apparent connection between the online comments and the prosecution and jury strangely misses the point. Extracted from their context, Dobinski’s comments seem innocuous. But Engelhardt probed deeper and found that under Dobinski’s online goading commenters proceeded to “report” highly biased summaries of the proceedings, more than one of which culminated in a chant of “Guilty Guilty Guilty!” (page 83 of order)
The undisputed facts as set forth in … this Order are sufficient for the Court to rule as it does today, although they may just scratch the surface. In fact, a reader of both Orders will note quite conspicuously that pivotal questions abound and remain unanswered. In addition, one can only wonder what other unanticipated revelations might be in store along the lines of those suggested herein. Secrets such as these are not given up easily, and have not been. For instance, the shock of learning of “taint team” leader Dobinski’s posting activities leads the undersigned to think that nothing would surprise the Court at this point.I don’t believe we should interpret that paragraph as an exaggeration or rhetorical flourish. Pivotal questions do abound. Among them: How many were involved in this? (It seems less and less likely that Mann and Perricone acted alone.) What other usernames were in play? (We still don’t have anywhere near a full list.) Did commenters collaborate? (It would seem so.) What were their motives? (Fight fire with fire, perhaps?) What was behind the apparent cover-up?
The abusive prosecutorial misconduct and behavior in the Eastern District by the U.S. Attorney’s Office has long been known and ignored by the local bar That the office indicts first and asks questions later, withholds evidence, permits false testimony, engages in selective prosecution, makes inflammatory statements to the media, horse-trades guilty pleas, lies to opposing counsel and uses multi-defendant trials isn’t anything new…
I’ll bet if there are statistics kept on this, Louisiana would rank first in the nation in misprision of a felony offenses — we’ve had a misprision crime wave here over the past decade or two! That results from having prosecutors who will make any deal to “get their man” as we saw in the Edwards case. When the government allows people whom it believes to be guilty of serious crimes [to] plead to the least serious federal crime in the book … in order to secure testimony against their target, it is fair to ask whether the government is abusing its power.Commenter "alafbi" wrote:
Just hope there is a real investigation into Letten’s office and this doesn’t stop it. I believe it will expose that Letten and others in the office were fully aware of and/or participated in the postings. The abuses of the thugs in Letten’s office are of more concern: threating (sic) and intimidating witnesses, selective prosecutions, misleading judges, etc.In the wake of the comment scandal, yes, we must confront the possibility that there has been a long history of misconduct in the office. We must demand, as opinion writer Clancy Dubos did on WWL-TV, that the findings of the investigations be made public. And that likely won’t be sufficient, as Engelhardt’s investigation painfully illustrates. The implications are mind-boggling, of course, but it’s long since time for a clear-eyed reevaluation of recent history. We can’t just hop from “Letten was a boy scout” to “now that he’s been replaced we can forget what happened on Letten’s watch.” That’s no way to rebuild trust in the system.
The only positive is that someone may examine how this USAS (sic) office has operated over that past 10 years. It’s doubtful that any real investigation will occur. There is no doubt that Sal, Jim Mann and Jim Letten sat round Letten’s office laughing at Sal’s posts. If ever interviewed, I would suspect that numerous employees would confirm that not only Sal, but others in that office, routinely post to the TP [Times-Picayune]. … So far, few have chosen to complain due to retaliation against future clients. There has been corruption in New Orleans at every level and this is the best opportunity to examine it at the federal level.Engelhardt adds: “The following day, March 22, 2012, one EDLA AUSA emailed the copied [alafbi] comment to another, stating: ‘This was posted yesterday by ‘alafbi.’ Seems to know a bit, yes?’”