If things proceed as scheduled, Ray Nagin will go on trial in federal court next month. In a figurative sense, he won’t be the only one.
The trial, which is set to begin Oct. 28, promises to be a test case of sorts — for the troubled office that is prosecuting the former New Orleans mayor, who faces charges of accepting kickbacks from several people who did business with the city; for newly minted U.S. Attorney Kenneth Polite; and for a courthouse still reeling from U.S District Judge Kurt Engelhardt’s surprise decision to overturn the jury verdict in the Danziger Bridge police shooting case on the grounds that online commenting by several former federal prosecutors and other ethical lapses amounted to “grotesque prosecutorial misconduct.”
The trial’s outcome will not only settle Nagin’s guilt or innocence.
It will also provide a window into just how much things have changed since the commenting scandal forced Polite’s once-lionized predecessor Jim Letten from office and brought unprecedented scrutiny to his operation.
Attorneys who worked under Letten and remain on the job say there’s no reason to think much has changed at all. Lead prosecutor Matt Coman, whose team handled the related, successful prosecution of former city tech consultant and likely Nagin trial witness Mark St. Pierre, argued in a motion that neither Letten nor the top deputies who turned out to be regular anonymous commenters had played significant supervisory roles in the investigation.
Letten, Sal Perricone and Jan Mann “did not direct, counsel or suggest any course of action related to this investigation or prosecution,” Coman’s motion said. “All of the evidence gathering, witness interviews, investigative decisions, record analysis, and document reviews were performed by trial attorneys and federal agents handling the case.”
Nagin lawyer Robert Jenkins obviously sees things differently.
He said he had a conversation with Mann, who was Letten’s first assistant, about the case. And he argued that, “given the extensive media attention and involvement in one of the highest-profile cases to be investigated in a decade ... it is hard to accept blindly the government’s suggestion that the former United States attorney, the former first assistant United States attorney, as well as senior staff within the United States Attorney’s Office were aloof from the protracted investigation and were entirely detached.”
Jenkins may be up against long odds, but he’s got some material to work with. Unlike the Danziger prosecution, Nagin’s is being handled out of the local U.S. Attorney office, not Washington. And Perricone in particular aimed some troubling comments at Nagin, including one in 2009 that’s truly chilling.
“For all of you who have a penchant for firearms and how they work, Ray Nagin lives on Park Island,” a commenter calling himself “campstblue,” one of several aliases later linked to Perricone, wrote on nola.com.
Whether or not U.S. District Judge Ginger Berrigan buys Jenkins’ suggestion that Perricone’s animus was either personal or racial, the very question is an uncomfortable one for prosecutors.
In a broader sense, we could soon have a better idea of how the post-Letten era will shape up.
We’ll get a sense of whether Engelhardt’s peers share his overt anger over the former prosecutors’ behavior, and if they agree with his arguably extreme remedy. (Berrigan used a Friday ruling to tip her hand when she rejected Jenkins’ request for a delay to sort out commenting-related issues. “The Court acknowledges the utterly juvenile postings by various prosecutors and how much they demeaned their high offices in doing so,” she wrote. But “the jury, and only the jury, will decide whether the defendant is proven guilty beyond a reasonable doubt.”)
We’ll see whether potential jurors have read the offending comments or followed the stories about them — and whether the whole episode has made them more skeptical of prosecutors than they were before.
We’ll see how hard other defense attorneys might be able to push the argument that lawyers’ behavior outside the courtroom irrevocably taints what happens inside.
And we’ll have a better sense of whether Polite is in for a long campaign to rebuild public trust, or whether he and his remaining staff can soon put all the unpleasantness behind them.
Even under normal circumstances, a criminal case involving a former big-city mayor would be a very big deal.
Thanks to Perricone, Mann, Letten and now Engelhardt, the stakes of this one are even higher, all around.
Stephanie Grace can be contacted at firstname.lastname@example.org.