Here’s some advice if you’re walking by River Birch landfill or the U.S. Attorney’s office in New Orleans: keep a clothespin handy for your nose, because both stink.
The U.S. Department of Justice’s motion on Friday to dismiss indictments against River Birch chief financial officer Dominick Fazzio and businessman Mark Titus shocked seasoned legal observers.
Former U.S. Attorney Harry Rosenberg told NOLA.com/The Times-Picayune: “I cannot remember a situation where the government has charged an individual, filed superseding indictments, litigated aggressively up until the eve of trial, and then decided to voluntarily withdraw the indictments.”
But that was only the prelude. Citing “evidentiary concerns” the Department of Justice also abandoned its expensive, years-long probe of alleged corruption associated with River Birch landfill, leaving the co-owners, Fred Heebe and his stepfather, Jim Ward—who were both federal targets—in the clear. Clearly relieved by the decision, Heebe thanked the Justice Department’s Public Integrity Section, which is the bureau investigating online comments made by top lieutenants to then-U.S. Attorney Jim Letten. Last year Heebe’s legal team “outed” two Letten aides de camp: federal prosecutor Sal Perricone and Assistant U.S. Attorney Jan Mann. All three took an early retirement, but not before their attempts at damage control raised the ire of a federal judge, who ordered a second, and presumably more thorough, investigation of the comment scandal.
So Heebe, Ward and Fazzio are breathing easy, just as speculation about the shenanigans that took place in the U.S. Attorney’s office reaches a fever pitch. For example, a post at Slabbed blog (which has been an indispensable resource from the start of the River Birch saga) promotes a quote from commenter “NOLA born”:
I have NEVER seen anything like this in 17 years with the federal government. NEVER saw the government let someone off the hook by publicly announcing that they are NOT going to indict him OR publicly stating that they were ending an investigation. Of course, the government closes investigations all the time—but NOT with a public announcement.
It is so highly unusual that I think there must be something HUGE uncovered in the DOJ investigation. … Whatever it is, it should come out and it’s going to be ugly.
These shocking, unprecedented announcements by the feds portend more ugly revelations. This Nola.com | The Times-Picayune story on the fallout and history of the River Birch landfill probe includes quotes from Rosenberg who raised the specter of prosecutorial misconduct, perhaps on the scale that took place against U.S. Sen. Ted Stevens. Regarding the Stevens case, the editors of the New York Times wrote:
The obligation of prosecutors to disclose evidence favorable to their adversaries is a cornerstone of justice. Yet in the conviction of Senator Stevens in 2008, vital evidence was concealed that would have “seriously damaged the testimony and credibility of the government’s key witness,” according to the [518 page] finding of Henry Schuelke, who conducted a two-and-a-half-year investigation.
We’ll deal more closely with this issue in a commentary later this week, but for now I’d encourage you to read this WWL-radio story, which reprints highlighted quotes from a radio interview with Fazzio’s lawyer Buddy Lemann. In short, Lemann believes it’s no coincidence that the probe and trial were called off right before the government was to hand over evidence—a microphone disguised as a pen—for forensic examination by the defense. The pen-mic was used by businessman Mark Titus, then under federal investigation, to record his meetings with the feds. Lemann thinks the government lied about what was discussed at meetings, and perhaps even erased data on the recorder to help their case.
Lemann went on to speculate about additional misconduct prosecutors might have engaged in:
“I think the fact that they had this secret meeting behind (Fazzio’s attorney’s) back was misconduct … I do know, for example, the U.S. Attorney’s office, at that secret meeting that Friday night, they actually whited out (names on the sign-in sheet.) They had just moved into a building with a security guard, and they were required to sign in. So when Fazzio and Titus got there, they signed in. When it became apparent that they had signed in, [then Assistant U.S. Attorney Jim] Mann went down, grabbed the sign-in sheet from the private security guard, [and] whited out the signatures … The fact that Titus and Fazzio and the agents had signed in … he whited that out, and brought it back down and gave it to the security guard. That’s pretty serious misconduct, in my estimation.”
Remember who is allegedly committing these shenanigans: top attorneys in U.S. Attorney Jim Letten’s shop. Letten, the “Justache,” the “straight arrow,” the “boy scout,” who for 11 years led a “modern-day band of untouchables” that took down many of the biggest names in local and state government. Three months ago Rosenberg said Letten was “the best public official we’ve probably had in this city in my lifetime.”
But the online comment scandal was much bigger than Letten’s office initially claimed, and might turn out to be much bigger than we know now. Given the startling cessation of the River Birch probe by the DOJ’s public integrity bureau, would we be surprised if the prosecutorial misconduct allegations Lemann mentioned are just the tip of another iceberg?
Slabbed commenter “lockemuptight” speculates that the misconduct was so rampant that it was “affecting the Danziger case,” and the Department of Justice decided to cut its losses before embarrassments in a River Birch trial affected the Danziger Bridge decisions. These days, I share that suspicion.
In my next column, I will distill what I’ve uncovered in previous (overlong) columns about the expansiveness of the online commenting scandal, and review some new evidence that may shed more light on possible misconduct by the U.S. Attorney’s office.
For now, though, let me be clear: I don’t mean to imply equivalence between the leading actors in the River Birch landfill deal and our local U.S. Attorney’s office. I’m endlessly suspicious of anything having to do with River Birch. On its face, the mega-million-dollar landfill deal with Jefferson Parish never made sense to me. And when you add in the mind-bending entanglement of money trails, elected officials and the extended Heebe/Ward/Sneed family tree, the stink rivals a Katrina refrigerator stuffed with seafood and left on the sidewalk for months.
Without doubt, our public servants of justice must be held to the highest standard. In the past decade we heard repeatedly that Letten’s prosecutors diligently “followed the evidence” in their investigations. It was proclaimed from podiums and in newspapers (not to mention those anonymous online commenters). But now it appears that there may have been more serious and systemic problems during Letten’s term than we ever knew. Indeed, however wild the speculations I aired in this column might have been, surely they seem less far-fetched now, in light of recent events.
American justice is a process. And we have important safeguards to ensure that the process is fair. Justice is not served when all-powerful officials use unethical or illegal tactics to target the “bad guys” whom “everyone knows” are guilty. It remains to be seen how much those warped “by any means necessary” attitudes infected Letten’s regime, but the history of his remarkable tenure in office is already being rewritten, and not for the better.