FBI agent’s identity in Danziger case secret
“His motion and others like it filed recently in this court raise the eternally significant question: Does the end justify the means?” JOSEPH WILKINSON, U.S. Magistrate judge
Two recently filed orders in federal court shed new light on the identity of a fourth U.S. Department of Justice employee who commented anonymously online about the Danziger Bridge case, leading U.S. District Judge Kurt Engelhardt in September to order new trials for five defendants convicted in that case in 2011.
The other three commenters, all prosecutors or former prosecutors, have already been unmasked: former senior litigation counsel Sal Perricone, former First Assistant U.S. Attorney Jan Mann and Karla Dobinski of the Justice Department’s Civil Rights Division.
But in his strongly worded, 129-page ruling, Engelhardt kept a lid on the fourth commenter’s identity, referring to the person only as “DOJ agency employee A.”
In an order this past week, Engelhardt went further, saying the employee was in fact a special agent at the FBI’s New Orleans office who “had served in a supervisory capacity over the ‘Danziger’ investigation, at times directly supervising the matter, including reviewing and approving related documents, sometimes attending interviews of relevant persons, and assisting in the conduct of searches for evidence.”
The agent posted more than 100 comments under stories at nola.com, the order says, and at least four dealt with the Danziger case.
Engelhardt only hinted at why he is still not identifying the agent — and why he initially did not even disclose where the agent worked.
The agent’s posts “are critical of the prosecution,” the judge wrote. Theoretically, that might undercut the Danziger defendants’ argument that the postings by various federal officials amounted to a coordinated campaign to poison public opinion and the jury pool against them.
Critical or not, Engelhardt added that the posts “nonetheless contribute to the court’s overall assessment and characterization of the government’s conduct as an ‘online carnival atmosphere.’ ”
The FBI agent’s identity could not be determined Friday by the New Orleans Advocate. Mary Beth Romig Haskins, a spokeswoman for the local FBI office, declined to identify the agent or to say whether he or she still works there or whether he or she has been disciplined. She said only that the FBI is “fully cooperating” in the Justice Department’s investigation.
Engelhardt’s partial unmasking of the FBI agent came in a lengthy order in which he ordered prosecutors to turn over certain materials to defense lawyers before those lawyers file their opposition to the government’s appeal of Engelhardt’s earlier order tossing out the Danziger verdict.
In a recent ruling in another case — unrelated, save for the claim of prosecutorial misconduct — U.S. Magistrate Judge Joseph Wilkinson apparently revealed the FBI agent’s online handle: “thewizard.”
Posts by that commenter could not be located in a search of nola.com Friday.
Wilkinson mentioned the alias in an 11-page order rejecting a request by defendant Stacey Jackson for access to the so-called “Horn report” — the report by Atlanta prosecutor John Horn on his investigation into possible misconduct by Justice Department employees in the Danziger case that revealed some of the online commenting.
Jackson, the former head of New Orleans Affordable Homeownership, a city-funded nonprofit program, is facing charges that she took bribes from contractors she hired to work for the program. She and her lawyers have tried to make hay from several posts about the NOAH scandal penned by Perricone, using the moniker “campstblue,” including one written in a clumsy attempt at black dialect.
While Wilkinson did not explicitly say that “thewizard” was the FBI agent in question, he noted that Horn’s investigation in 2012 came up with a list of 11 “suspect commenters.” That list that was published by The Times-Picayune after Horn requested information about them.
Wilkinson noted that only one of the 11, “thewizard,” was identified as a “government agent.” Engelhardt has previously said that the FBI agent was the only federal official known to be involved in the commenting hijinks, apart from the three prosecutors.
Before rejecting Jackson’s motion to see the Horn report, Wilkinson read the report himself and determined that there was nothing in it that helped Jackson’s cause, he said.
“The Horn materials contain nothing but denials by all who were interviewed concerning any grand jury leaks,” he wrote. “They make no findings, conclusions or even intimations that any grand jury leak ever occurred.”
However, Wilkinson noted that the Horn probe focused on the Danziger case, and he suggested that other misconduct might have been found had the probe looked further.
For instance, he said, two other commenters — “aircheck” and “jammer1954” — authored “egregious” posts that directly preceded and followed one of Perricone’s NOAH-related rants.
“If that person or persons who posed as ‘aircheck’ or ‘jammer1954’ were management-level Justice Department prosecutors or law enforcement officers … his or her identity might lead to the conclusion that there was a pattern, policy or practice of pre-indictment prosecutorial misconduct in the accusatory process (that would be) material to Jackson’s defenses alleging violations of her due process rights,” he wrote.
Wilkinson ordered the Justice Department to notify him when a separate inquiry into prosecutors’ behavior — this one overseen by the department’s Office of Professional Responsibility — is complete. Jackson can try to renew part of her request at that time, he said.
While he dismissed most of Jackson’s motion, Wilkinson suggested he thinks she may yet have grounds for a due-process complaint.
“This motion and others like it filed recently in this court raise the eternally significant question: Does the end justify the means?” he wrote. He later added: “If the federal accusatory process is to comply with the Constitution, law enforcement agents and Justice Department prosecutors must refrain from the kind of conduct reflected in the racism, attempted intimidation and pre-judgment reflected in the comments of ‘campstblue,’ ‘aircheck’ and ‘jammer1954’ that are attached as evidence in support of this motion.”