The latest trend at federal court in New Orleans could be called the “Sal Perricone defense,” but whether it will work for former Mayor Ray Nagin seems doubtful, especially after a hearing Monday.
After a judge’s startling ruling last month set aside the convictions of five former police officers in the Danziger Bridge shootings, a parade of other defendants have filed motions for relief, all saying they were denied due process by former prosecutors’ habit of posting caustic online comments about targets of federal investigations.
Nagin, who is set to stand trial on a variety of corruption and bribery charges in three weeks, is among those seeking to make hay from the online antics of Sal Perricone and other former prosecutors.
If the proceedings in U.S. Magistrate Judge Alma Chasez’s courtroom Monday were any indication, Nagin may need to come up with a new gambit.
Chasez took under advisement Nagin’s request that she compel the government to turn over a copy of the secret “Horn report,” the result of an outside prosecutor’s investigation into the posting scandal and other possible misconduct in former U.S. Attorney Jim Letten’s office.
Chasez left little doubt about which way she’ll likely rule.
She told Nagin’s attorney, Robert Jenkins, he had not cited any precedents for a judge to order the production of such a report, or of any of the other materials Jenkins has sought, such as the complete transcripts of testimony and questioning before the grand jury that indicted Nagin in January.
Prosecutor Matt Coman, meanwhile, cited a litany of cases to bolster his contention that Jenkins has no right to the material.
He also argued those who played roles in the scandal were not involved in any way in the Nagin case.
“You’re not citing any case law or similar cases where someone has gotten this type of information,” Chasez told Jenkins at one point, shaking her head.
The magistrate judge sought to make clear she was no apologist for Letten’s office.
She said more than once that she was “not pleased” with the conduct of Perricone and his former boss, Jan Mann, who also admitted posting pseudonymous comments about federal cases.
“I don’t have any sympathy whatsoever for what Sal Perricone and [former First Assistant U.S. Attorney] Jan Mann blogged,” she said. “It was totally inappropriate. It was totally unprofessional. It should never have happened.”
If Chasez was vexed about the posting scandal, she also made clear she doesn’t think the “prosecutorial misconduct” that U.S. District Judge Kurt Engelhardt outlined in his ruling overturning the Danziger verdicts should result in a clean slate for everyone who has had dealings with the U.S. Attorney’s Office.
“Does every criminal defendant in the last five years have the right to come forward and challenge the allegations against them?” she asked rhetorically. “What is the parade of horribles that follows turning over this report?”
Chasez said the two federal cases upended in some fashion by the commenting scandal — the Danziger case and the aborted investigation into landfill owner Fred Heebe — were distinct from the Nagin case in important ways.
Heebe, she noted, was never indicted, and thus the extent of the case against him was never publicly known. The online commentary by Perricone and others, meanwhile, occurred as the Danziger investigation and trial unfolded, but was unknown to the judge at the time the jury was seated.
In the Nagin case, by contrast, “No one has gone to trial yet,” Chasez said. “A jury can be voir-dired [screened] very carefully to make sure they have not formed any opinion about the case. This is very different.”
She added Engelhardt did not throw out the indictment against the cops accused in the Danziger shootings and cover-up — only the verdicts. It might have been “pretty severe” to vacate the verdicts, Chasez said, “but what you don’t have in that case is the judge saying the criminal charges are dismissed. And that’s what you’re seeking here, to have the indictment thrown out.”
Jenkins said it was impossible for him to know the extent of the government’s misconduct — and what the implications might be for his client — without getting a look at the material he is asking Chasez to force the government to turn over.
“The government should not be able to prosecute a citizen for misconduct while it keeps misconduct by its own under wraps,” he said.