The Danziger Order still startles. How can a trial that found police officers guilty of massacring civilians on a bridge during the Katrina aftermath be undone by NOLA.com commenters by the likes of “123ac” and “crawdaddy”?
To understand U.S. District Court Judge Kurt Engelhardt’s order for a retrial, it’s essential to grasp both the spirit and the methodology of his judicial investigation into online shenanigans. Engelhardt not only uncovered the identity of a senior Civil Rights Division lawyer from the Department of Justice, but also found evidence of possible online collaboration with other federal prosecutors hiding behind pseudonyms.
Most usefully, though, Engelhardt’s order offered an investigative model by which we can navigate the murky, unmapped terrain of Commentgate.
The model is premised on two operating principles:
1) Do not trust the feds to expose their own.
2) Explore the full context of a comment to grasp its meaning.
The first principle is simple enough, but the second requires elucidation. Engelhardt spent about 40 pages of the order analyzing and weaving together long-forgotten online comments about the trial made by unknown users. He excerpted; he sequenced; he highlighted.
He compared comments to testimony, and made a strong case that these were signposts pointing to more misconduct by others. He didn’t take the posted comments at face value. If they name-checked or replied to another commenter, he investigated archived posts by the newly named. If they repeated uncommon phrases, such as “the fish rots from the head down,” he looked at who else did so (and sometimes found aliases of known users, including commenters already known to be federal prosecutors).
The “news” of the Danziger Order was that Karla Dobinski, a senior lawyer from the Department of Justice’s Civil Rights Division, had commented on Danziger trial news stories under the pseudonym “Dipsos.” But the real question (and story) was this: Did Dobinski know the commenters she was talking to?
The Horn Report, the DOJ’s inadequate and as-yet-unreleased investigation into the comment scandal, neglected to cite Dobinski by name. It focused narrowly on comments by Dipsos, and acknowledged that a DOJ “employee” had commented, but not in a way that was “inflammatory, critical, or prejudicial, or otherwise.”
Skeptical and curious, as we all should be, Engelhardt had to make repeated inquiries to ascertain the identity of “Dipsos.” He was shocked to learn she was the very attorney who had been tasked with safeguarding testimony by Danziger defendants that had been ruled inadmissible in the federal trial.
The real genius of Engelhardt’s order came next. Unlike the Horn Report, Engelhardt explored the full context of the seemingly benign comments by “Dipsos” (Dobinski), in particular her repeated encouragements to purported first-hand observers of the trial — commenters “crawdaddy” and “123ac.”
Instead of merely conveying what they saw, “crawdaddy” and “123ac” seemed to argue the prosecution’s case online. Their observations often picked away at the defense’s arguments. Any pretense of neutrality was abandoned during the run-up to the verdict, when“crawdaddy” chanted “Guilty Guilty Guilty!” (pg 83) and “Guilty as charged!” (pg 82). Engelhardt noted that hours after “crawdaddy” fired up the online minions, then-federal prosecutor Sal Perricone also used one of his aliases to demand a “Guilty as charged” verdict (pg 83).
Seen in this context, the promptings by “Dipsos” seem much less innocent. The purported trial observers she relied on for information — who shared remarkably similar views on the proceedings — loom much larger. That Engelhardt sussed this out from the context of “Dipsos’ ” comments — not just the seemingly benign text of her postings, but the comments by the users she encouraged and their connections to yet other commenters later discovered to be federal prosecutors — led the judge to overturn a landmark civil rights verdict.
If you ask me, that makes Engelhardt nothing short of a hero.
The judge understood why comments are called “threads.” They do not exist in isolation.
Every comment by “Dipsos” referred to, and was therefore interwoven with, the highly opinionated (and informed) voices of “123ac” and “crawdaddy.” Hypothetically, if the three users were in cahoots, then the encouragements by “Dipsos” — breezily dismissed by the feds— seem more like a sly endorsement of the rants from “123ac” and “crawdaddy”.
Engelhardt wrote that the real identities of “crawdaddy” and “123ac” were unknown to him and beyond the scope of the order. He likely had his suspicions, though. A look at the comments written by those short-lived usernames yields disturbing clues. (Inconveniently, though, the comment archives for these non-active accounts are now inaccessible through NOLA.com’s user-profile pages. Note that “crawdaddy’s” username URL at NOLA.com is “bobbychas,” whereas in the case of “123ac,” the user name and URL name are one and the same.)
In an apparent reply to a commenter who had trashed Attorney General Eric Holder, on July 23, 2011, at 2:22 p.m., “123ac” wrote: “You pay the highest compliment to Pres. Obama and his ‘pathetic excuse for an Attorney General’— but for them, Henry Glover’s family and the Danziger Bridge victims would never have gotten justice or even their day in court.”
Hypothetically, doesn’t this sound like the defense one would give if one were a federal prosecutor from DOJ who was in town to try the Danziger case?
A few days later “123ac” claims, quite implausibly, that it is the first time he or she “sat in” on a trial. Then 123ac proceeds to authoritatively correct a news report on grand jury testimony specifics, using lawyerly lingo — “GJ” — to refer to the panel.
No response from “123ac,” but “crawdaddy” is there to take up the slack, with spirited support for the prosecution written in a slang that I can’t help thinking is fake. Attempting to appeal to African-Americans, “crawdaddy” even invokes the name of Sirius radio talk jock Joe Madison, who broadcasts out of Washington, D.C., and leaves little doubt that he is a huge fan of President Obama. The first photo in the slideshow on Madison’s home page shows him with Obama’s attorney general, Eric Holder, the man ultimately in charge of the Danziger prosecution.
Post verdict, 123ac returned to nola.com to comment on an article that describes how the Danziger defense team “seemed to simultaneously fear… despise… and respect” lead prosecutor Bobbi Bernstein. (Engelhardt makes a point of noting that Dobinski and Bernstein had known each other for a “long-time”— even before Bernstein went to law school. pg 59) There, “123ac” reveals: “I am an attorney barred in DC and Md and those states’ legal ethics laws preclude attorneys from acting 1) improperly or 2) in a manner that gives the appearance of impropriety.”
Did “123ac” just happen to be on vacation in the Crescent City, when he or she— an attorney— “sat in” on her first trial?
Girded with Engelhardt’s skepticism toward the feds and his attentiveness to the total context of the comments — the main semi-available evidence in this whole mess — we need to seriously consider the possibility that Commentgate includes more than one employee of the Department of Justice in D.C., in addition to the outed federal prosecutors from the Eastern District of Louisiana.