Stunned disbelief greeted the U.S. District Court Judge Kurt Engelhardt’s order to vacate the Danziger convictions. People wondered how pseudonymous online comments could possibly require retrying police officers convicted of massacring unarmed New Orleanians.
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)
Engelhardt didn’t hang his entire decision on the poisonous atmosphere created by the comments, however. As Grace noted, he was responding to a “totality” — a combination of the comments, the false statements made by federal prosecutors, the judge’s discovery of Dobinski’s involvement, and preexisting concerns he had about apparent witness coercion. (Recall his critique of the government from an earlier order: “Using liars lying to convict liars is no way to pursue justice.”)
Things reached a tipping point, and Engelhardt could not stomach preserving a verdict amid such rampant misconduct. Indeed, Engelhardt writes on page 117 that the circumstances were so egregious that “prejudice need not be shown.”
Engelhardt’s order is long, but it fully merits close reading. Altogether, the circumstances are, as he says, “extraordinary and offensive.” The multitudinous details shouldn’t obscure the order’s central thrust: The misconduct involving comments might be an unprecedented “21st Century” problem, as Engelhardt acknowledges, but combined with the other abuses, it undercuts our most basic notions of prosecutorial fair play.
The judge declares that for years members of our local U.S. Attorney’s shop repeatedly ignored their special role as servants of the law. Their collective delinquency struck at the fundamental pillars of our justice system, and when caught they lacked candor and credibility.
In short, Engelhardt’s order demonstrates that we’re beyond “a few bad apples.” It’s time to inspect the branches and roots, even if that means going back to square one in a civil rights case as horrific as Danziger.
To contend, as the Washington Post did, that Engelhardt arrived at an illogical decision due to a fit of pique insults the judge’s intelligence and integrity. If he would go so far as to overturn Danziger, something must be seriously wrong.
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.
Instead, Engelhardt decided to launch his own investigation, a rare move for a federal judge. His forensic analysis of comment archives spotted linguistic connections among online handles such as “ac123” and “crawdaddy” (among others) and strongly implied collaboration among commenters. Mainstream local media had little inclination to explore that shadowland. Rather, it seems, they wanted to wait until Fred Heebe’s legal team or an intrepid judge took the initiative — or local bloggers showed the way.
Engelhardt persevered and asked tough but important questions. He was increasingly skeptical, as we all should be, when intelligent lawyers like Sal Perricone suffered sudden memory loss or made patently ridiculous excuses, as Dobinski did in saying she read the NOLA.com comments to stay informed about the trial. He was skeptical when skilled federal investigators suddenly became incurious about the behavior of their brethren in the U.S. attorney’s office. Plainly, he grew sick of the lies, the cover-ups, and the abuse of power.
The more Engelhardt probed this mess, the more disturbing it became. Every hard-won discovery raised new vistas of inquiry. And the few answers he (eventually) received caused him to reevaluate earlier concerns. Prior decisions that relied on the honesty of government witnesses — Mann in particular — required a second, more skeptical look.
Above all, the judge understood that the collective facts pointed to an over-arching and crucial reality: The dimensions of what is unknown about this scandal are immense and perhaps still expanding.
Indeed, as stated on page 121 and 122 of the Danziger Order (my emphasis):
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?
That last one potentially leads us down a very dark wormhole. But that is precisely where we should head. We have to fully explore the scale of the “grotesque” campaign of misconduct in the U.S. attorney’s office before it can regain our trust.
I know that Jim Letten has been featured in front of the podium looking very “no nonsense” in breaking news segments over the past decade, talking about the “sacred” mission of his office. We know that he has been repeatedly characterized as an apolitical boy scout who bleeds red, white and blue. But the ever-increasing possibility that the comment scandal is symptomatic of more severe misconduct inspired by a “win at all costs” mentality during Letten’s term as well as his predecessors’ has been a discussion so far limited to the margins of the blogosphere, including, of course, some chronic NOLA.com commenters. Last year “On a Steed” wrote:
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…
Last year, commenter “brlawyer,” who occasionally sparred over comments later revealed to be by Perricone, put it this way:
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.
I quoted “On a steed”, “brlawyer” and “alafbi” not to sensationalize or fan the flames. I truly believe we are in frightening terrain and that immense skepticism is warranted. One of many disturbing details from Engelhardt’s order was footnote 93 on page 103. There he quotes from a March 21, 2012, post by alafbi who wrote (my emphasis in bold):
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?’”
Whether you agree with Engelhardt’s Danziger order, his argument should serve as a strident wake-up call. We — and that certainly includes media — need to demand more inquiry, transparency and accountability if we’re ever to get to the bottom of this deep embarrassment to local jurisprudence.