Claiming his right to a fair trial may have been compromised by prosecutorial misconduct, former New Orleans Mayor Ray Nagin on Thursday asked a federal judge to delay his corruption trial — scheduled to start in late October — and argued that he should be allowed to fully review reports by a special prosecutor looking into misconduct at the U.S. attorney’s office.
Nagin’s request was the first such motion filed in federal court since U.S. District Judge Kurt Engelhardt’s blockbuster ruling Tuesday vacating the convictions of five former New Orleans police officers in the Danziger Bridge shooting case.
But it likely won’t be the last: Courthouse observers say Engelhardt’s ruling opens the door for a variety of defendants — both those awaiting trial and those already convicted — to seek some form of relief, though it’s not clear how many will succeed.
“I would expect to see more of these, most of which will amount to nothing,” Loyola Law School professor Dane Ciolino said.
In the Danziger case, the judge found that prosecutorial misconduct, in particular extensive online commenting by Sal Perricone and Jan Mann, at the time both top lieutenants to U.S. Attorney Jim Letten, had essentially denied the accused officers their right to due process. Letten resigned in December after the two were unmasked as anonymous commenters, in possible violation of ethics rules barring prosecutors from publicly making prejudicial comments about defendants.
The motion filed Thursday by Nagin’s attorney Robert Jenkins argues it is possible that postings by Perricone and Mann — along with other, yet-to-be-uncovered misconduct — could affect Nagin’s ability to get a fair trial. Jenkins’ filing came a day before a deadline to file substantive motions in the case, which is set for trial on Oct. 28.
While the motion is new, it’s long been known that Perricone took potshots at Nagin in comments under articles posted at NOLA.com.
Under his alias “campstblue,” Perricone in 2009 wrote: “For all of you who have a penchant for firearms and how they work, Ray Nagin lives on Park Island.”
Nagin last year took to Twitter to highlight that post, calling it “shocking.”
Jenkins’ motion cites that comment and four others, which Jenkins terms “a mere sampling of the ad hominem attacks” against the former mayor authored by Perricone.
Some of the posts portray Nagin as the latest in a line of crooked mayors.
One of them reads: “Thank you Mssrs Barthelemy, Morial and Nagin. You three stooges have wrought upon this city one disaster after another. This is just more evidence of your collective racism and incompetence.”
Another, apparently addressed to a fellow NOLA.com commenter, says: “You are the one that is misinformed — grossly. Have you ever read the Hobbs Act? It isn’t a fraud statute. It’s extortion. Not bribery, not fraud — extortion. And it’s not broad. This City hasn’t had an honest mayor since Chep Morrison and he had problems.”
Yet another similar post says: “I am not (sic) beginning to believe that the Nagin administration has exceeded the Marc Morial administration in denying the citizens of New Orleans of their right to honest government for profit.”
The last post that Jenkins quotes makes apparent reference to the Nagin family’s trip to Jamaica at the expense of City Hall technology vendor Mark St. Pierre. “Nagin: Jamaica. Jamaica. Who maka? Roll me another, man. What’s all that with stuff on my pretty toes, man?”
Jenkins’ motion does not cite any posts allegedly authored by Mann.
The former mayor’s gambit has been tried by a handful of other defendants — usually unsuccessfully — since Perricone was unmasked in March 2012 as a prolific commenter who aimed many of his barbs at federal targets.
In June 2012, for instance, former U.S. Attorney Eddie Jordan sought to have the indictment against a client quashed on the basis of a particularly colorful Perricone rant. Contractor Richard Hall had been accused of participating in a kickback scheme as part of a plot to loot the city-funded New Orleans Affordable Homeownership program.
The Perricone post that Jordan cited, written in a clumsy attempt at black dialect, poked fun at Nagin’s stewardship of the program rather than at Hall himself.
Jordan wrote that the comment “intimates that the hurricane recovery effort will lead to the return of more black residents and the re-election of allegedly dishonest black public officials like the Stepin Fetchit character depicted in his online rants.”
The motion was denied, and Hall wound up pleading guilty.
Also last year, former Jefferson Parish President Aaron Broussard, facing payroll fraud charges, sought to have Letten’s office recused from his case on the basis of Perricone’s rants. Broussard claimed Perricone’s comments showed the office had a bias against him, but a judge rejected the claim, saying Perricone’s involvement in his case was “insignificant.”
Perricone and Mann had little involvement in the Danziger case, which was overseen by Civil Rights Division attorneys from Washington. It’s not clear how large a role Mann and Perricone played in the federal investigation into Nagin, who was indicted in January on charges that he took cash bribes and other gratuities from contractors seeking work from City Hall. Perricone resigned 10 months earlier, while Mann stepped down about a month before the indictment came down.
While neither was a lead attorney on the Nagin case, Mann would have had some involvement in it by virtue of her position as Letten’s first assistant and the head of the office’s criminal division.
While the misconduct claim has gone nowhere in several cases, it succeeded spectacularly in one instance.
Roughly a year after landfill magnate Fred Heebe exposed Perricone’s online antics, the Justice Department announced it was dropping a probe that centered on Heebe’s consolidation of the local waste-disposal industry. Heebe had never been charged in the case, but his chief financial officer, Dominick Fazzio — whom the government had hoped to “flip” and turn into a witness for the prosecution — was charged in two separate schemes. All charges against Fazzio were dropped after Justice’s startling announcement.
Nagin’s motion could soon be followed by a similar one from former city Councilwoman and state Rep. Renee Gill Pratt, who is facing a seven-year prison sentence after a racketeering conviction. NOLA.com reported Thursday that Gill Pratt’s lawyer, Mike Fawer, said he may seek a new trial on the basis that prosecutorial rants tainted the jury pool.
Ben Gershman, a professor at Pace Law School in New York and an expert on prosecutorial misconduct, said he believes Engelhardt’s ruling may prove more fruitful for defendants convicted at trial, like Gill Pratt, than it is for those awaiting trial, such as Nagin.
That’s because it’s very difficult for a judge to determine after the fact that a jury was not influenced by prosecutors’ postings about the case, Gershman said. On the other hand, he said, a judge should have little trouble finding prospective jurors who could fairly judge the case.
A defendant like Nagin might ask for his indictment to be quashed on the basis of prosecutorial misconduct — along the lines of what Jordan did in the Hall case last year — but that’s a bit of a stretch, Gershman said.
“Nagin has a much bigger mountain to climb than defendants who have already been convicted,” he said. “There are so many ways to cleanse a jury of prejudice. It’s much easier to address.
“I see defendants asking to have indictments dismissed, but I don’t see it happening.”
Laurie Levenson, a professor at Loyola Law School in Los Angeles who specializes in legal ethics, likewise said she does not expect Engelhardt’s ruling to lead to a rash of verdicts being overturned or indictments quashed.
“But I do think that judges will take these motions a bit more seriously than they have in the past,” she said. “Defendants may get more evidentiary hearings that give them a peek into what the government was doing.”
Nagin’s motion says he may seek an evidentiary hearing down the road. It asks that he be given a copy of all reports by John Horn, the special prosecutor from Atlanta who was tasked with probing possible misconduct in the U.S. Attorney’s Office in the wake of the commenting scandal.
Engelhardt’s ruling made reference to one initial report by Horn and four supplemental reports. None of the reports has been made public, save for the excerpts quoted in Engelhardt’s ruling.
Once Nagin has had a chance to review the reports, Jenkins’ motion says, the former mayor would like “an opportunity to decide if a further investigation or an evidentiary hearing are needed under the highly irregular facts that have been partially disclosed.”
“Until the full factual backdrop is revealed by the Department of Justice, including actions by personnel in the United States Attorney’s Office for the Eastern District of Louisiana, it is impossible to discern the extent of prosecutorial misconduct affecting Mr. Nagin,” Jenkins’ motion says.
Nagin’s case is before U.S. District Judge Ginger Berrigan, who set a hearing on the continuance request for Oct. 9.