Former mayor alleges attorney misconduct
In what appears to be the legal equivalent of a Hail Mary pass 12 days before his corruption trial is scheduled to begin, former New Orleans Mayor Ray Nagin has asked a federal judge to throw out the charges against him because of “intentional and repeated misconduct” by government attorneys.
In case that gambit fails, Nagin’s attorney, Robert Jenkins, also asked Wednesday for a postponement.
Nagin’s trial on 21 counts of bribery, tax evasion and other charges is scheduled to begin Oct. 28.
Nagin’s latest legal moves come after federal judges rejected several similar motions in this and other cases.
The former mayor asked a judge last week to order the government to turn over a report by special prosecutor John Horn about inappropriate online commenting and other possible misconduct by local federal prosecutors.
He said the defense needed the Horn report and other materials so it could determine the extent of the misconduct by the government.
The Horn materials then might provide grounds for the quashing of the indictment.
U.S. Magistrate Judge Alma Chasez refused to order the government to produce the documents, and on Wednesday, U.S. District Judge Ginger Berrigan rejected Jenkins’ appeal of Chasez’s ruling.
Nagin’s new motion says he still wants the Horn report, but even without it, he argues, “The evidence known so far is compelling that the government’s misconduct was intentional, pervasive and affected adversely the defendant’s constitutional right to a fair trial.”
During a courtroom hearing last week, Chasez deplored the online shenanigans of former prosecutors Sal Perricone and Jan Mann, who pseudonymously disparaged a range of federal targets in posts on the website Nola.com. Nagin was on the receiving end of some of Perricone’s more acerbic barbs.
But Chasez said she didn’t see how the misconduct by Mann and Perricone affected the case against Nagin, especially in light of Assistant U.S. Attorney Matt Coman’s assertions neither lawyer had any role in bringing the case against the former mayor.
Chasez suggested Jenkins could ensure that potential jurors had not been influenced by Mann’s and Perricone’s comments by carefully screening them during the jury-selection process.
Berrigan echoed that view in her ruling Wednesday affirming Chasez’s decision.
Jenkins’ new motion says that prosecutors’ “pattern of misconduct ... cannot be overlooked, nor can the stain caused by the government’s misconduct be erased, even through aggressive voir dire,” or jury screening.
Like Chasez, Berrigan has criticized the postings by Mann and Perricone, calling them “utterly juvenile.”
But she wrote in a Sept. 27 ruling that the comments did not in and of themselves constitute grounds for a delay of the trial — let alone the quashing of the indictment.
In that same ruling, however, Berrigan said she would “consider” a request for a “brief continuance” if Jenkins could justify it on other grounds.
Jenkins’ new motion for a continuance says he has “worked diligently ... to prepare properly for trial” but he needs more time “because of the vast volume of documents and information” in the case.