Among the most troubling revelations from a federal judge’s sprawling order Tuesday, tossing out the convictions of five New Orleans cops: That former U.S. Attorney Jim Letten knew his top deputy, Jan Mann, had posted online comments about subjects of federal probes, but turned a blind eye while carefully choosing his words for judges and media.
Another: That along with Mann and former prosecutor Sal Perricone, a third federal lawyer who was involved in the Danziger case also was posting about it from Washington, D.C., during the trial.
And a third: That federal investigators didn’t even bother to ask, while probing into Perricone’s acid-tongued musings, if anyone else in the office had launched similar online drone strikes.
U.S. District Judge Kurt Engelhardt’s 129-page order for a new trial offered stunning new facts and raised still more questions over the anonymous Web postings and how they were handled within the Justice Department.
Throughout, Engelhardt portrays a Justice Department that is loath to call out its own, if not downright secretive, leaving the judge to repeatedly pull teeth for answers.
It turns out Mann, the disgraced former first assistant U.S. attorney, provided much of the clarity with her belated admissions when called in to testify in November, shortly before she and her husband, Jim Mann, resigned from the office.
Mann testified that she told Letten, within days of Perricone’s rantings being exposed, that she too had posted commentary under online stories on federal cases. Letten’s response, she said, was muted.
“He asked me no more questions, but we did discuss it a couple of times. He’d say, you know, ‘These cowardly commenters.’ and I’d say, ‘Well, I’m not a coward,’ you know, things like that,” Mann testified.
Letten never talked about reporting Mann’s postings up the food chain, Mann said.
“He didn’t want to — he wasn’t — he didn’t want ... me to have done anything wrong, you know. Not that I think he’d cover for me because I don’t think he’d cover for anybody. But I just thought, you know, he’s not going to put it back up in my face.”
At first, when he announced that Perricone was the online mischief-maker “Henry L. Mencken1951,” Letten wanted to tell the news media that Perricone was a lone online wolf, but couldn’t, Mann said.
“Because I kept saying, ‘You can’t say that, Jim.’ And he was like, ‘Yeah, I can’t say that.’ We knew we couldn’t say that because we hadn’t even asked anybody else if they (were) blogging, and never have to this day unless he’s done it since, you know, Nov. 2 (2012).”
Mann, who was tasked with ferreting out the Perricone mess when it exploded in March 2012, sat silently by Letten in court when he tried to explain the situation to a judge three months later.
“Neither I, nor Jan Mann, nor people in positions in authority in our office, to my knowledge (had) any knowledge of, nor did we authorize, nor did we procure or have any knowledge of Sal Perricone anonymously posting comments about cases or anything like that whatsoever until we learned about it in the (court) filing,” Letten said then, referring to landfill magnate Fred Heebe’s lawsuit against Perricone. “That is gospel truth.”
Technically, that may have been true. Certainly not true, however, was what Mann later told Engelhardt, saying that before Perricone’s online identity came out, she “was not a follower of NOLA.com postings and had no real sense of what was happening there.”
In her November testimony, Mann said she thought the office had weathered the storm after thwarting legal challenges over the Perricone flap in a handful of federal cases, and there was thus no need to dig deeper into whether others were commenting online.
“He didn’t want to ask people that. Washington didn’t want us to ask that,” she testified.
Neither Letten nor Mann could be reached for comment Tuesday.
In his ruling, Engelhardt suggested that Perricone lied while testifying last October over online posts that may have divulged a grand jury investigation. Leaking grand jury testimony amounts to a federal crime.
In a statement, Perricone’s attorney, John Litchfield, denied the suggestion.
“Although Mr. Perricone has not had the opportunity to complete his review or digest the reasons that the court gave for its order, he definitely and confidently denies ever violating any aspect of (the grand jury law) or ever lying to any court.”
Perricone resigned shortly after the scandal broke, after coming clean to Letten. Letten, Mann and her husband, federal prosecutor Jim Mann, all resigned late last year after Mann’s online postings came to light.
It was an order from Engelhardt last November, calling for an investigation into the posting scandal, that upped the ante. But even then, according to the judge, it took repeated prodding for answers from John Horn, a first assistant U.S. Attorney from Georgia assigned to root out the facts.
Horn’s first report to the judge, last January, failed to name the Justice Department “employee” who had posted a half-dozen comments online during the Danziger trial — comments that Horn dismissed as innocuous.
His second report, two months later, also didn’t name the Civil Rights Division employee, who went under the moniker “Dipsos.”
It turns out that she was federal trial attorney Karla Dobinski, leader of a “taint” team whose job it was to protect the rights of the officer defendants in the Danziger case.
Engelhardt found that Dobinski was goading online commenters, dismissing her excuse that she was merely trying to follow the trial online from Washington.
“Such gravely poor judgment surely calls into question the careful and meticulous effort she claims she exerted in protecting (Officer Ken) Bowen’s rights. Moreover, such conduct significantly undercuts the government’s original position that Perricone was a solitary government rogue.”
Engelhardt labeled the activity among prosecutors “an on-line 21st Century ‘Carnival Atmosphere.’”
The judge also mocked Mann’s characterization of her postings as “no big deal” and “my little downtime thing,” and he criticized the government for downplaying Perricone’s online forays as the “remarkably low profile musings of an unrecognizable citizen.”
In fact, he said, the anonymity of the posts makes the conduct “all the more egregious and forces the court, the defendants and the public into an indecent game of ‘catch-me-if-you-can.’ ”
Engelhardt largely steered clear of criticizing Horn, suggesting that Washington higher-ups put up roadblocks. But the judge lamented some information that never emerged.
For instance, Engelhardt wanted the identities of 11 other online posters that the government originally sought from NOLA.com under subpoena, but then dropped. He also wanted Horn to root out the source of leaks to reporters on the guilty plea of former NOPD Lt. Michael Lohman.
“You can sense the frustration of this judge. The Justice Department virtually stonewalled him,” said Jonathan Turley, a law professor at George Washington University. “They obviously pushed this judge too far.”
Turley called it one more example of “a sense of immunity” on the part of prosecutors that defense attorneys have complained about for years.
“The Department of Justice often plays a game of chicken with these cases,” he said. “They know that judges are reluctant to overturn convictions. Judges get a certain sticker shock.”
Engelhardt’s order — and the level to which he dug for answers — raised eyebrows among legal experts.
“It’s astonishing. It shows how tenacious Judge Engelhardt was in trying to get to the truth,” said Loyola law school professor Dane Ciolino, who called it “unusual, but refreshing.”
There have been a few local cases in which judges overturned federal convictions, legal experts said, and most of those were for misconduct or errors in the courtroom. U.S. District Judge Ginger Berrigan in 2009 overturned a death verdict for John Wayne Johnson in the killing of an Orleans Parish sheriff’s deputy, citing a raft of trial errors.
But Tuesday’s ruling has few parallels, said Laurie Levenson, a professor at Loyola Law School in Los Angeles.
The closest she could think of was when O.J. Simpson’s defense attorneys got the grand jury investigation tossed, arguing that prosecutors engaged in an overly aggressive publicity campaign.
“It takes the rare case, and this might be it,” Levenson said. “I wonder if this is more punishment to prosecutors for outrageous behavior.”
Now, the question is whether the government will appeal Engelhardt’s ruling.
“We are disappointed with the court’s ruling. We are reviewing the decision and considering our options,” a Department of Justice spokesperson said in a statement.
Legal scholars noted that higher courts generally give heavy deference over such decisions to the trial judge. But that may not be the only factor at play, Levenson said.
“It may be that they don’t dare,” she said. “Prosecutors may have so much egg on their face, they may want to drop the issue.”