Few letters to the editor qualify as “historic,” but A.M. “Marty” Stroud’s extraordinary apology printed in The Shreveport Times fits the bill. Stroud was the lead prosecutor for the state when it convicted Glenn Ford, a Shreveport man, of a killing in 1984 which evidence later showed, Ford did not commit. After three decades on Death Row, Ford’s conviction was overturned. He was freed last year, only to learn that he had Stage IV lung cancer. Always ready to make a hideous situation even worse, the State of Louisiana worked hard to deny Ford any compensation for his lost years.
Instead of making excuses for his role in the travesty, Stroud did something incredible. He wrote a bracing self-assessment and admitted he didn’t do his job the way he should have. He described in detail how his prosecutorial failings led to a grave “miscarriage of justice.”
Having spent years wandering in the noxious fog of what has come to be known as “Commentgate,” I was totally unprepared for Stroud’s honesty. I had become used to evasive behavior from the local federal prosecutors involved in Commentgate who, in my view, repeatedly dissimulated and minimized the scope of the online commenting scandal and their full involvement in it. Yet here was Stroud, a longtime prosecutor, publicly using rhetoric about “duty” and “justice” as part of a full-throated self-critique!
Stroud didn’t hedge or parse. He didn’t plead ignorance. He “manned up” and admitted he should’ve done more to ensure a fair trial. Consider these passages where Stroud described personal shortcomings that led to professional error (bold text mine):
As a prosecutor and officer of the court, I had the duty to prosecute fairly. While I could properly strike hard blows, ethically I could not strike foul ones. … In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning.
What a contrast to lead actors in Commentgate! Surely some of the same faults Stroud admitted to having in his thirties afflicted top brass in U.S. Attorney Jim Letten’s office, even as they approached retirement age. But I strongly doubt we’ll see similar public admissions from, say, former federal prosecutors Jan Mann and Sal Perricone.
Earlier this month the Department of Justice’s Office of Professional Responsibility (OPR) released a heavily-redacted 2013 report on Commentgate to the New Orleans Advocate. The OPR’s assessment (my bold):
OPR finds by a preponderance of the evidence that when posting their comments online, Perricone and Mann acted with the purpose of obtaining a result — making extrajudicial statements about active investigations and pending cases — that the applicable rules and regulations unambiguously prohibit. Accordingly, OPR concludes that Perricone and Mann committed intentional professional misconduct.
The line in Stroud’s letter about “foul” blows comes to mind. It’s a reference to an oft-quoted passage by Justice George Sutherland (Berger vs United States, 1935). The OPR refers to it in its report (page 82), and the extended quote can be found prefacing the Department of Justice’s Bicentennial Celebration of U.S. Attorneys. Sutherland elegantly described the special role and responsibilities of the prosecutor as those of a “servant of the law.”
I learned of the Sutherland quote by way of a magnificently rich comment thread below the NOLA.com obituary of former U.S. Attorney John Volz. There, commenter “brlawyer” and Perricone’s “legacyusa” alias were going at it. In an early Commentgate column I examined the interplay between the two, because I think it gets to the heart of the issue.
Simply put, it’s the federal prosecutor’s special duty, as one who represents the United States, to privilege the process of justice over personal concerns about winning a case. It’s extremely troubling that multiple feds (three prosecutors and an FBI agent, at last count, and probably more) felt that, despite the elephantine powers at their disposal, they had to put their thumb on the scale and weigh in on cases in the NOLA.com comment section.
Even before Commentgate, there were skeptics who believed U.S. Attorney Jim Letten’s office struck some foul blows. One of the aims of my columns was to give these voices their due. Indeed, U.S. District Court Judge Kurt Engelhardt seemed to confirm many of their long-held fear of prosecutorial overreach in his stunning Danziger Order, which reversed the conviction of five New Orleans police officers for gunning down unarmed civilians fleeing Katrina’s aftermath.
I’m referring to skeptics like Jefferson Parish politico Vincent Bruno and journalist R.E. Payne, who made very strong claims against Volz, a prosecutor admired by many in Letten’s office. Their alternate history of the Volz years raises the question: If Volz was such a straight arrow, why are the circumstances surrounding his ascent and removal so murky and bizarre?
I’m also referring to former Insurance Commissioner and convicted felon Jim Brown and Slabbed blog commenter “Ashton O’Dwyer” who probably wonder why citizens under suspicion receive the full brunt of the federal justice apparatus, while deceptive prosecutors only get, at most, administrative wrist slaps.
Last but not least, I’m also talking about informed pseudonymous NOLA.com commenters like “On a Steed” and “alafbi,” and astute NOLA.com observers like “muspench” and “truthisit.” They were skeptics well before this mess began, when Letten was lionized by most local media.
Commentgate combined issues of online anonymity and legal ethics— not to mention hubris, crime, free speech, power and, yes, justice— in an unforgettable witch’s brew. I believe my (perhaps obsessive) attentions to it were justified. For example, posts by “brlawyer” and “muspench”— two commenters my columns highlighted early on— received notice in the OPR report (footnotes pages 17, 18).
My work received a nod in a footnote (page 23), where OPR took interest in a column that claimed the “martyfed” psuedonym was likely a Perricone alias, based on the use of the term “pulpit pimps.” In the Danziger Order, page 28, it said Perricone denied writing under this alias. However, I have found over a dozen other identifiers that tie “martyfed” tightly to known Perricone aliases. Repeated misspellings like “debutates,” “hypocracy,” and “suduced”— plus the always-sarcastic deployment of “august”— give the game away, in my opinion.
The “martyfed” discovery showed that Perricone indulged in sockpuppetry, the deceptive practice in which a commenter uses multiple accounts in the same thread to support his or her position. More importantly, though, it underscored the shadow behind the whole scandal. The unknown still dwarfs the known; we still don’t know the totality of what was written, or how many federal “servants of the law” participated in the hijinks. And if rogue prosecutors would engage in that sort of idiotic misconduct, what other misconduct might they consider?
Other than Jeff Adelson’s exceptional story last year in the Advocate, there has been precious little investigation of Commentgate by the mainstream press. In my final column as a Lens writer, I worried about deleted comments in the nola.com archives. Unfortunately, this concern was well-founded.
Jason Berry at the American Zombie blog, who has taken a different (but extremely interesting) approach to Commentgate, reported last week that NOLA.com comment sections were not publishing comments that contained certain words. For example, when you wrote “Fred Heebe” in a comment, it was auto-zapped. Gone. One wonders how long the list of verboten words now runs.
It’s a shame. NOLA.com used to be like the wild west. Freewheeling, grubby, offensive — but also at times intriguing and fun. Throughout the Commentgate saga, NOLA.com defended the purported anonymity of their commenters in court. Berry has raised compelling questions indicating the forum has been compromised. Over the years perhaps tens of thousands of comments have been deleted during various NOLA.com website overhauls. (Just one example: there used to be hundreds of comments below this story. Now there’s just one.)
And now it appears certain names are being censored. If the guardrails are so narrow that no one can say anything interesting, or even refer to a controversial figure by name, what’s the point of allowing pseudonymous comments in the first place? I guess the point is to prevent untoward statements like the ones that led to Commentgate. Fred Heebe, the target of a federal prosecution derailed by Commengate, is a litigious fellow. It’s sad to think that the once mighty Times-Pic may be afraid of him.
Again, the important element to Commentgate is all that we don’t know. Now it looks like we never will (unless some misbegotten soul actually saved scores of disappeared comments for future analysis). It’s difficult to hold out hope that evidence will surface either soon or 30 years from now, like it did for Glen Ford. The only thing with less chance of that happening is a Commentgate participant’s apology comparable to Stroud’s.
Mark Moseley, a longtime columnist for The Lens, is now a sales executive at Pure Water Technology of South Louisiana.