What if lawyers representing the Times-Picayune argued on behalf of the First Amendment rights of anonymous commenters, and shortly thereafter archived comments — the very expression of those rights — were disappeared from the Nola.com website?
Gnaw on that unsettling possibility while we catch up on Commentgate.
Two federal judges recently summarized findings from the Justice Department’s Office of Professional Responsibility (OPR), which concluded that disgraced former federal prosecutors Jan Mann and Sal Perricone were likely the only ones in then-U.S. Attorney Jim Letten’s office to have commented inappropriately on NOLA.com. The report also claimed Mann and Perricone were unaware of each other’s mischief, and Letten, their boss — a former intelligence officer in the U.S. Naval Reserve — was also clueless about chicanery by his longtime lieutenants.
Thus, according to the OPR, the only two prosecutors from the local U.S. Attorney’s Office to play around in the regions’ most heavily-trafficked comments section have already been unmasked. Pretty convenient finding for the Feds, don’t you think?
If smell-tests are any indication, this doesn’t seem to be the “clear, unequivocal and all-inclusive reliable report” that U.S. District Judge Kurt Engelhardt hoped for, but failed to receive, prior to his blockbuster order overturning the Danziger verdict. Engelhardt’s skepticism of federal investigations into government misconduct led him to relentlessly probe the issue until he learned that the Commentgate trail of misconduct stretched from New Orleans all the way to the Department of Justice in D.C..
The OPR report, like the Horn report before it (which was centered on comment activities related to the Danziger trial), is being withheld from public consumption. Engelhardt had little confidence in either investigation, and neither should we. But the OPR report doesn’t appear to be a complete whitewash.
According to the summary by U.S. District Judge Mary Ann Vial Lemmon and U.S. Magistrate Judge Joseph Wilkinson, it comes down hard on Mann and Perricone, concluding that they engaged in “extensive and intentional prosecutorial misconduct,” some of which might be “material and discoverable” — and thus useful for other defendants seeking to have their cases dismissed.
Surely defense lawyers will take that cue, and Commentgate will creep along, in fits and starts. Former New Orleans Affordable Homeownership program chief Stacey Jackson apparently won’t be helped. Wilkinson and Lemmon threw a wet blanket over her lawyer’s efforts to identify the commenters behind three usernames under stories about Jackson’s alleged fraud.
These omissions and mysteries, are more than just a nuisance to Commentgate obsessives.
After compelling Nola.com to deliver username info, they found that “jammer1954” wasn’t a federal prosecutor. In the case of “aircheck,” a username that some have suspected was Letten himself, no identity could be ascertained. And finally, the judges ruled that comments by “kefir” were “not sufficiently similar to the comments known to be attributable to Jan Mann and Perricone in tone, word choice, frequency, style or content.”
My first thought after reading the news about the judges’ conclusions was: What about “urantia”? Why didn’t Jackson’s team investigate that alias? That’s the username associated with comments I see as very similar in tone, word choice, frequency, style and content to those by “aircheck.” If info from both accounts could be obtained, perhaps it would establish that they are the work of the same author.
Don’t believe my suspicions about the similarities between “aircheck” and “urantia”? Good! Just click the links above and compare the comment histories for yourself. Oh, wait, you can’t. They used to be available, but during a modification of the NOLA.com comment archives that occurred, I believe, last year, comment histories for non-active users became inaccessible. The user profile pages don’t even disclose the total number of comments made. For example, if web archive pages are correct, over 2,600 comments were made by “aircheck” and “urantia.” What did they say in all those comments? Good luck finding out.
Unfortunately, a more recent overhaul of the NOLA.com comments section has made forensic investigation of suspicious comments even more difficult. The old permalinks to many comments are now dead and inoperative. For example, this permalink to one of the postings made by Perricone under his “campstblue” pseudonym returns “Page not found.”
The new timestamps for the comments couldn’t be less helpful. They basically show the date the comment was written, rather than the specific time so that that readers can judge elapsed time between comments. (For example it might be assumed that a redundant comment timestamped a minute after another indicates that the author hadn’t seen the earlier opinion.) The deleted timestamps make them a step or two away from being totally useless.
It’s not a minor problem. Every scintilla of data in Commentgate is potentially valuable. For example, not long ago one could go to the following story link: and see these comments in sequential order:
aircheck: I resolve to host a large party after $Bill is tried and convicted. Wednesday, December 31, 2008, 2:00:22 PM
urantia: Hey Aircheck: I even buy the drinks ! Wednesday, December 31, 2008, 2:01:52 PM
Interestingly, “urantia” chimes in only 90 seconds after “aircheck” posts (this happens repeatedly between the two, likely indicating the same author is using deceptive sockpuppetry — different accounts on the same thread).
So, to review: in the past, the profile links found in the comments would take you to a working-user profile page with a list of archived posts that you could inspect; the timestamps on those posts showed the actual time, down to the second in some cases; and the permalinks to individual postings functioned. Now, it seems, none of those basic elements of the comment section are in working order at NOLA.com.
Odder still, when you go to the New Year’s eve story link, the “urantia” comment is inexplicably missing. What’s the deal? Have the archives been purged? Emailed requests for an explanation of the new system sent to the NOLA.com engagement team yesterday were not answered prior to publishing this column.
Here’s a similar example: The web archive shows there were, at one time, 63 comments to the story of Utah’s upset of Alabama in the Sugar Bowl, including this quinella:
aircheck January 02, 2009 at 9:04 pm: Just like I predicted earlier today, UTAH will surprise Bama !!!!!!!!!!!!!!!!!! HAHAHAHAHAHAHAHAHAHAHAHAHA>>.
urantia January 02, 2009 at 9:06 pm: Sabin had to change his underwear at half-time !
Note the times. But now, in the current iteration of the story, it (weirdly) says only 13 comments exist (though 52 appear). “Aircheck’s” posting is still visible, but there is no sign of “urantia.”
Here’s another example, a web archived version of a 2008 story by Gordon Russell titled “Judge rules that lawyer Ike Spears can no longer represent Mose and Betty Jefferson” shows 47 comments including this one:
Posted by urantia on 09/17/08 at 12:25 pm: Jefferson tribe = 100% criminals.
That’s a sentiment utterly typical of both “aircheck” and “urantia,” by the way. However, after the various comment overhauls the “updated” version of the page reveals only 19 comments. The posting by “urantia” is one of the 28 missing comments.
These omissions and mysteries are more than just a nuisance to Commentgate obsessives. I suspect thousands of old comments are currently missing. Remember, the comment archives are the central evidence in this scandal. Unlike many of the other facts of the scandal, they haven’t been filtered through the biased and narrow agendas of criminal defense attorneys, or obscured by sealed government reports. Now it appears that NOLA.com site and comment systems overhauls have made it well nigh impossible to do forensic analysis of the comments.
Lawyers for NOLA.com have strenuously argued for the First Amendment rights of anonymous commenters. Partly it’s about profit. (Comments, perhaps especially the most obnoxious ones, draw traffic to a website, which is why owners resist calls from the community to require commenters to use their real names.) But the T-P has always been a sincere and deep-pocketed defender of press freedoms and free speech — which makes it only more disappointing to see the site archives become increasingly impenetrable and incomplete.
Hopefully this is just a temporary migration issue, and complete archives, links and timestamps will be restored soon. If not, one can only speculate why NOLA.com would want to appear as if it was making its site less transparent. Sure, NOLA.com owns the forum, and can do what it wants, but given the incredibly high stakes involved — retrials, misconduct and a host of unknowns — I think there is a public interest in discovering what government prosecutors said in their online forums. To do that, the comment archives need to remain intact.
There is more to this story, Oyster. The Nola.com site is part of a group of newspaper sites owned by Advance Digital in New Jersey, and those news sites all run on the same platform. When they make a change in the software at the main office, twelve newspaper websites (listed at advancedigital.com) around the country then are also changed accordingly. I don’t think the programmers are concerned about commentgate. More likely, the updates are, as with any such system, intended to make computer stuff work more efficiently. The parties to relevant lawsuits and criminal trials have the right through court orders to have the old data maintained. But, say I want to play amateur detective and run every comment through some fancy interpretation program, I am kind of stuck with whatever the current format wants to give me. There are few free commercial databases that will maintain mountains of access forever; it becomes quite expensive and resistant to upgrades.
Yes, I would say that the disappearance of comment threads on nola.com has nothing, or at the most, very little to do with subterfuge. This comment is totally opposite of my usual position, mostly because I see so much graft and corruption in this city and in this state without looking too hard. And, I am of the opinion that this could not happen without federal, governmental complicity and participation. This is not paranoia. It’s not a conspiracy. It’s worse. And as far as nola.com, it hit its high a while back – some people – anonymous and some identified – got caught in its snare, but it’s finished. And what is left are those with attorneys who can afford to pay to retrieve “lost” data. The general public is out of the loop. Wouldn’t be the first time, now would it?
I agree Mark. It’s hard to imagine that Mann/Perricone were lone wolves. Furthermore, this would not be the first time that a federal investigation severely limited its inquiry.
You guys are really going to assume these missing comments are part of a software upgrade? You don’t think the timing is suspicious? You realize this is the second time this happened and been accredited to a “system upgrade”?
For those of you who still think Nola.com is actually an independent, objective journalistic entity….please try not to preach about conspiracy theory….it’s nauseating.
I am having a hard time finding “anything” that is independent and objective. So much for the FREE PRESS. Nola.com has been neutered, de-bugged, re-programmed, cleaned up, and cleaned out, and that makes it safer and keeps it out of courtrooms. Honesty is a dangerous thing and can serious consequences for others, even masked messengers. At its height (it’s passe’ now), a lot of factual information was being lost (Nola.com) – but was a venue for others with knowledge to express themselves – sorta like insider trading, but with a twist (of the knife). Can you beat that irony? It’s so deliciously dirty. Now, it doesn’t matter who cleaned out the comments, how it was done, or why. If someone has the money to spend, and an attorney, the lost comments are probably retrieveable, but the threat has to be real and it has to be great. The sad part is that some people (in power positions) are still making censorship decisions for other people (the general public) about what they can read and what resources they can access. And that has been going on for a long time and not likely to go away anytime soon.
It appears that the whole “comment” scandal is going to only benefit Fred Heebe. Ironically Heebe is not even mentioned anymore. He is the real “Keyser Soze” of this area.
The blatant racism of perricone is probably much more prevalent in the U.S Attys. office than the powers that be want’s reveled. Of course there is a cover up going on.
“The parties to relevant lawsuits and criminal trials have the right through court orders to have the old data maintained.”
One would think. And yet, during legal volleys this year lawyers for Stacey Jackson and Nola.com kept saying that “aircheck” had written over 500 comments. Actually, archive.org shows evidence that over a thousand were written. If “urantia” was a sock puppet/ alternate account by the same author
Have you ever heard of Danzinger or River Burch?
TraveLAr’s correct on the Advance uniformity, because I just
checked nj.com and al.com. They’re both on livefyre. However, Jason Brad Berry’s
correct in that this new switch is the SECOND such alteration that
restricted/wiped out access to old comments at critical times in the commenting
scandal.
And that scandal has
given nola.com legal headaches, like a unending succession of subpoenas (from
Heebe’s defamation suit against Jan Mann: “The Nola.com
profile page for eweman indicates that 40 comments were posted to the
site under that handle.
Plaintiff thus far has been able to locate only 35 comments. Plaintiff intends to subpoena
the full set of eweman postings from Nola.com”), although I don’t think
that subpoena was ever issued.
The last subpoena ended in reporters testifying in court (very
unusual), and under those circumstances I cannot discount the possibility the
livefyre switch was timed to hide some of the relevant info. That would be silly, because it might be
expected to generate even more subpoenas, but Advance is notorious for
lousy business decisions. :/
The problem I have with “commentgate” is the gray area that exists in trying to figure out what constitutes misconduct for prosecutors. what was different about danziger and river burch, as opposed to other cases that were commented on?
WHAT constitutes misconduct for prosecutors?
Unfortunately, we don’t know so many fundamental questions about this scandal, including “Who said what?” As for the gray area, I’d refer you to the section of the Danziger Order titled “Laws governing conduct of prosecutors” which begins on pg 34 https://www.documentcloud.org/documents/799092-danziger-order-9172013.html
Here’s just one section from it:
“At no time shall personnel of the Department of Justice furnish any statement or information for the purpose of influencing the outcome of a defendant’s trial, nor shall personnel of the Department [of Justice] furnish any statement or information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial.”
Federal prosecutors have very special responsibilities as “servants of the law”:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor
Good question, JGB_504 (“The problem I have with ‘commentgate’ is the gray area that exists in trying to figure out what constitutes misconduct for prosecutors. what was different about danziger and river burch, as opposed to other cases that were commented on?”).
In Danziger, Judge Engelhardt uncovered a pattern of commenting by prosecutors AND a pattern of concealment by the DOJ. Engelhardt discovered Letten, Jan Mann, and Sal Perricone had all lied to him at various points, and he was furious.
When Engelhardt pressed for a full investigation of the matter, all he got was the series of defective Horn reports, indicating the government didn’t want to be honest about what had
happened.
Furthermore, one of the Danziger commenters was the “taint team” leader from Washington, which is a very sensitive position.
Also, Engelhardt couldn’t convince the government to identify the source of the “one-day leak,” in which early publication of the Lohman plea on nola.com showed the government had given reporters case material that was not public (described as a “violation of Rule 6(e) of the Federal Rules of Criminal Procedure”).
In River Birch, Heebe had the goods on an undetermined number of USAO commenters, and his successive defamation suits against Perricone & Jan Mann made it clear he could keep dropping those bombs. The government nevertheless proceeded until Judge Chasez (Mark Titus case) directed the government to hand over a pen recorder, which was evidence in that case.
The government had tampered with the recorder, that was about to become fact in the court record, and before that could happen the government announced it was dropping the River Birch investigation, period. The official disclosure of tampering would have exposed FBI misdoings, and the government did not want that to happen.
Other federal judges have been less willing to investigate government misconduct in individual cases, for whatever reason. Wilkinson made an effort in the Stacey Jackson case, but did not identify jammer1954 as a federal employee at the time of commenting, and had no luck identifying aircheck at all.
Feldman took the unusual step of insisting that reporters testify in the Hankton case, but limited the questioning as to their sources in such a way that the very promising effort failed (the hearing could only inquire as to three FBI agents known to have met with reporters before publication of an article on the Hankton case).
Two points to take away: the judge matters (some are more inclined to consider commenting a problem), and the solidity of the defense’s research matters a great deal (Heebe was thorough, and worked from tips that came directly from the USAO, in my opinion). [6/3/2014 12:55 PM]
And here is where my reply (“Good question, JGB_504…”) should have gone. Sorry about that– I’m not familiar with Disqus. 🙂 [6/3/2014 12:58 PM]