At the stolid federal courthouse on Camp Street, a rare changeover is under way on both sides of the criminal court aisle.
On one side, New Orleans defense attorney Ken Polite took over Friday as U.S. attorney, assuming a post that Jim Letten held for more than 11 years, making him the longest-serving U.S. attorney in the country when he resigned last December amid an online posting scandal that also took out three of his top deputies.
On the other, Federal Public Defender Virginia Schlueter is calling it quits at the end of the month after 35 low-profile years in the office, saying she’s taking a bullet in light of crippling budget reductions to her office, brought on largely by the austerity of federal sequestration.
In the middle sit 16 federal district judges, some of whom appear emboldened lately in their criticisms of federal prosecutors, taking them to task with growing zeal for deals cut to secure convictions in some high-profile cases — most notably, the River Birch probe that led to the exposure of the online-posting shenanigans.
Just how the shifting pieces will play out in their courtrooms is a question likely to be answered one case at a time. What’s clear is the prospect of a new era, and perhaps stability in the wake of scandal.
“Things have changed, but the changes you’re going to get are going to come about subtly and slowly,” said Julian Murray, a veteran federal defense attorney who was once a federal prosecutor.
Part of that results from sequestration.
While not nearly as dire as the fiscal plight of Schlueter’s office, which led her to slash two investigators, a case manager and herself, the automatic federal budget cuts have brought on a hiring freeze at the Department of Justice that Polite says will keep him from choosing his own top deputies from outside — something he had originally intended to do.
Polite said he aims to mold a diverse office in his own image, but at least for now, he’ll be limited to a game of musical chairs.
“I think the budgetary concerns will only get a little bit worse before they get better,” he said. “I think any office can be benefited by bringing in an outside perspective. Certainly that’s what I hope to bring to bear, some different perspective in that office.”
But, he lamented, “I will not be able to bring in new leadership from Day One.”
What’s more, the online posting scandal seems likely to haunt his office for months if not years to come.
In the wake of U.S. District Judge Kurt Engelhardt’s surprise ruling last week, discarding the convictions of five New Orleans police officers in the Danziger Bridge case, defense attorneys are gearing up to launch appeals in cases that seem to carry the taint, if not the direct involvement, of the top prosecutors implicated in the scandal.
Former Mayor Ray Nagin is among several criminal defendants aiming to cast their prosecutions in a compromised light. He has already been joined by Stacey Jackson, accused of looting a city-funded nonprofit during Nagin’s tenure, and more are sure to follow.
That’s not the only challenge. In the nine months since Letten left office, the pace of criminal prosecutions has slowed significantly — a slide that Polite expects to reverse.
According to the federal court clerk’s office, criminal filings have dropped by about 15 percent this year, at an office that already ranks far below the national average in federal prosecutions per capita.
Polite said the office is “a little inefficient in terms of the number of cases that it’s brought,” and he intends to pick up the pace.
The impact of the slowdown has also been felt at the federal public defender’s office, which represents the bulk of criminal defendants.
Schlueter said she learned in June that her budget for 2014 was being cut by 23 percent. The result: She chose to “hit myself,” she said, rather than extend furloughs to as many as 50 days next year for her staff.
“It is a consequence. It’s impacted my caseload, and my caseload impacts my budget,” Schlueter said of the slowdown in prosecutions.
“The U.S. Attorney’s Office has been under a substantial amount of turmoil — firings and retirings and whatever they want to call it. We’re a very reactive agency, so if the numbers fall, it’s a one-two punch. It’s not just sequestration.”
Schlueter is retiring at month’s end. A replacement is expected to come from within the office. So far, she said, the office has not been forced to turn away cases, although other federal public defender’s offices across the country have done so amid the budget woes.
What it means, however, is that the office has fewer resources to do its own investigation into cases, while prosecutors still can rely on a host of partner federal agencies, Schlueter said.
“The U.S. attorney has the FBI, the DEA, the Secret Service,” she said. “I had two investigators. Now I have none.”
For Polite, sequestration is less dire. It means he can’t pick his own right-hand man or hire from without, at least for now.
As it stands, the office employs 53 attorneys, compared to a handful of federal public defenders. It’s a modest, 10 percent drop from where the office stood before Letten and top prosecutors Sal Perricone, Jan Mann and her husband, Jim Mann, resigned late last year, said interim U.S. Attorney Dana Boente, who was handed the job of righting a flagging ship in the scandal’s wake.
Boente, who is returning to Virginia to be the interim U.S. attorney in that state’s Eastern District, said the modest cutbacks are the result of the relatively low turnover rate in the New Orleans office.
Federal prosecutors are apt to make it a career here, where in other U.S. attorneys’ offices, more often prosecutors serve for a few years before moving on — as Polite did after three years in the Southern District of New York.
Despite the limitations sequestration imposes, the change at the top has some federal defense attorneys hopeful that a philosophical shift is at hand.
Among others, Murray called the online posting scandal symptomatic.
“That’s a job that can burn you out and make you very cynical if you stay too long, and I think that’s what you were seeing with Jan Mann and Sal Perricone” in their online antics, he said. “You begin to think everybody is guilty,” Murray said.
He pointed to U.S. District Judge Martin Feldman’s frustrated commentary two weeks ago. The judge lambasted prosecutors for misconduct and a lack of transparency as he ended the embarrassing River Birch landfill saga by imposing a lenient sentence of home confinement on Henry Mouton, the only defendant in a bribery conspiracy case.
Feldman, noting that conspiracies usually require at least two people, called Mouton’s solo act “pretty metaphysical.”
“You’re seeing a reaction to what’s going on, what was always suspected with overkill,” Murray said.
Defense attorney Arthur “Buddy” Lemann, one of many targets of Jan Mann’s online vitriol, anticipates a “more refreshing, level-headed, more objective office.”
Lemann pointed to U.S. District Judge Jane Triche Milazzo’s refusal to heed a requested prison sentence by federal prosecutors for Hendrikus “Hank” Ton — a client of Polite’s before he became U.S. attorney, and like Mouton a bit player in the River Birch case — saying it was “clearly a reflection on the whole blogging scandal.”
“So yeah, there’s been a shift,” in how federal judges are reacting to the office, Lemann said.
“It may not be as dramatic as with Engelhardt” in his ruling on the Danziger case, which Lemann called “a nuclear missile,” but “the story might not be over yet.”
Lemann said he expects a rise in the number of prosecutions after a slowdown he credited to “sort of a paralysis there” in the wake of the scandal.
While he can’t bring in new blood yet, Polite, a 37-year-old New Orleans native, can reassign prosecutors among divisions and units. He said he plans to do just that, “moving personnel around, re-energizing personnel who may have stagnated in certain units, reshifting the priorities of certain units.”
While circumspect, Polite also said he aims to change the culture of the office, painting himself as a consensus-builder.
“The defense bar, the judiciary are important constituents of this office. Listening to their concerns about how this department does its business is very important to me,” he said. “What I hope they see is a U.S. Attorney who is here to listen and adapt the office where appropriate to address some of the concerns they have.”
Defense attorneys call that conciliatory posture a far cry from a Letten administration they argue was made tone-deaf, in part because of the hero status Letten achieved by sending a raft political miscreants off to prison.
As far as targeting criminals, Polite said he plans to take greater aim at street violence, and specifically at exploiting federal law to nail illegal gun owners.
According to federal statistics, weapons prosecutions have taken a backseat in the local office to prosecutions for environmental, drug, immigration and white-collar crimes.
Defense attorneys also see a major impact in how the office will prosecute drug crimes, under a nationwide edict from Attorney General Eric Holder to curtail prosecutions for low-level drug offenses that carry hefty minimum sentences under federal law.
In an Aug. 12 memorandum, Holder called on federal prosecutors to decline to file charges that would invoke the minimum sentences if the drug crime did not involve violence, the defendant does not head up a criminal organization, have a lengthy record or major ties to drug rings.
Defense attorneys say prosecutors often used the minimum mandatory sentences as a hammer to secure plea deals and cooperation.
Polite says the new policy is in line with his thinking.
“Our attorney general is demanding that we as federal prosecutors step away from the prior dialogue of who’s tough, who’s not tough when it comes to drug prosecutions and figure out a way to be smart in terms of the way we prosecute these cases,” steering convicts away from prison when possible, Polite said.
“I think that’s exactly the mission we should be undertaking,” he said.
The common denominator that will limit change on both sides of the aisle is sequestration, at least in the short run, said former U.S. Attorney Harry Rosenberg.
More important for Polite, Rosenberg said, is staying power. U.S. attorneys serve at the whim of the president, he noted.
Letten, and even Eddie Jordan, who served in the role for seven years, powered up the more they stuck around. Rosenberg only had three, and Polite can only count on three.
“Ultimately, you have a little more flexibility if you’re in longer,” Rosenberg said.
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