Judges’ actions post-Letten spur talk of shift at federal courthouse

To hear U.S. District Judge Kurt Engelhardt tell it, the courthouse script in public corruption cases reads like a trashy, dog-eared novel.

Defendant gets caught with his drawers down. Prosecutors start squeezing. Both sides ask for more time, then still more, until the defendant pleases prosecutors enough to win an endorsement for a shorter prison sentence, or perhaps no time at all.

With John Sens, the Orleans Parish sheriff’s official charged in a bid-rigging and kickback scheme, Engelhardt refused to play along.

In what some observers view as a sign of changing times in the federal courthouse since scandal ushered former U.S. Attorney Jim Letten out of office last year, Engelhardt denied the kind of extended delay that has long been commonplace in drawn-out, high-profile corruption cases — from Mose Jefferson to Jefferson Parish President Aaron Broussard to Greg Meffert.

The judge then dropped the hammer, leveling the maximum five-year sentence on Sens for a bribery conspiracy charge — despite agreement from both sides that Sens deserved a lesser sentence.

Sens already won his “golden parachute” when prosecutors agreed to just the single charge, Engelhardt said, using the occasion to broadcast his general dismay.

“It’s embarrassing in New Orleans that we don’t just tolerate corruption, we demand it,” he said. “This scenario plays out so often that earning a (sentence-reduction letter) almost seems like a badge of honor, something to put on your resumé.”

Engelhardt’s decision — both his insistence on the maximum penalty and his refusal to delay the sentencing — caught the attention of defense attorneys and other court watchers.

Sens’ attorney, Ralph Capitelli, was among those who said the episode could have a chilling effect on defendants who might give up bigger goods in hopes for leniency. Capitelli called it “a serious deterrent to law enforcement efforts.”

On the same day that Engelhardt sentenced Sens, U.S. District Judge Sarah Vance denied a request to trim the sentence for former Plaquemines Parish Sheriff Jiff Hingle to the satisfaction of the government. Vance sentenced Hingle to 46 months in prison, 15 months longer than federal prosecutors asked, but 14 months less than the statutory maximum.

“In both instances, the government asked the court to reduce sentences for cooperation, and in both cases the court said no. It makes a guy like me say, is there a real benefit to cooperating?” said defense attorney Pat Fanning.

He speculated that such examples could lead defendants who cut plea deals to be less helpful to investigators in debriefing sessions.

“There’s cooperating with a capital C and cooperating with a small C,” Fanning said.

He defined the latter as: “Do what you gotta do to get the deal. Be truthful, but you don’t have to be proactive and try to find stuff: ‘You ask me what I know? This is what I know.’ ”

Federal prosecutors can request leniency for a convict after sentencing, but the risk is greater, particularly in corruption cases that can take years to play out. Someone who pleads guilty could wind up serving the bulk of his sentence before catching a break, and thus be a less-motivated witness.

Prosecutors, meanwhile, much prefer witnesses in civilian attire as opposed to a prison jumpsuit.

Of course, hard-line sentencing decisions are nothing new at the federal courthouse in New Orleans, and some defense attorneys aren’t sure anything has changed.

But others see signs that at least certain judges — including Engelhardt — now hold a more jaundiced view of the U.S. Attorney’s Office in the wake of last year’s online posting scandal.

The repeated posting of caustic online barbs directed in some cases at targets of ongoing investigations by two top federal prosecutors — former First Assistant U.S. Attorney Jan Mann and Sal Perricone —led to Letten’s resignation.

It also compromised several federal probes, as defense attorneys — and Mayor Mitch Landrieu in the case of a federal consent decree aimed at reforming the police force — cried prosecutorial misconduct.

Engelhardt himself ordered a full investigation into the online posting melee as he weighs whether to order a new trial for five officers convicted in the Danziger Bridge shooting case. That probe appears to be ongoing.

The fallout, and Letten’s fall from his high-profile perch as the Teflon warrior battling corruption in the region, and nearly always winning, have served to level the scales, some defense attorneys said.

In the past, lawyers sometimes complained that judges seemed cowed by Letten’s long shadow.

Most notably, a decision by federal prosecutors in Washington to publicly announce it was dropping its entire investigation into the River Birch landfill seems to have struck a chord on the bench.

Last month, U.S. District Judge Martin Feldman said during a hearing that he’d never seen that kind of public announcement in 30 years, and that “there’s been too much scent of government abuse in this neighborhood lately.”

The wake of the scandal is turbulent, said one former federal prosecutor who spoke on condition of anonymity.

“The atmospherics have changed in the courthouse over there, whether it goes to all the judges or not,” the ex-prosecutor said. “They’re bowing up, taking things into their own hands. The cases that have been dismissed and the things that have happened with the recent scandals, there had never been that type of stuff.

“There was a presumption the government was straight-up. I’m not sure that mantle, that aura remains. I think there’s more of an even playing surface. I’m not sure an assistant U.S. attorney has any higher standing than any other lawyer right now.”

But defense attorney Tim Meche says there were plenty of times the government didn’t get its way in the past.

U.S. District Judge Carl Barbier rejected a top prosecutor’s plea for a three-year sentence for Stan “Pampy” Barre, for instance, after Barre agreed to testify against disgraced ex-City Councilman Oliver Thomas. Barbier called Barre a pox on the city and gave him five years — still far less than the maximum allowed by law.

“I can cite numerous cases where (Letten’s) office would ask for certain things and judges would go the other way. We’ve always had an independent bench in this judicial district,” Meche said.

“I think the only real difference that I’ve noticed between this new U.S. attorney’s office and Jim is the lack of press conferences. Does anyone know what (interim U.S. Attorney) Dana Boente looks like? I’ve never ever seen him on TV having a press conference. Jim was on three times a week and on the radio. I have learned that that was a source of irritation to the judges.”

Indeed, some defense attorneys see the biggest difference in the federal courthouse is a change of tone after Letten’s 11-year run as the top federal prosecutor.

Just how that tone may change again should the U.S. Senate confirm Kenneth Polite Jr., President Barack Obama’s nominee to take over the U.S. Attorney’s office, remains uncertain.

But the absence of Letten’s outsized public profile and the departure of his top brass already has made for lasting change.

“The whole deal-making process has changed. There was a certain trust factor. Now you’ve got a U.S. Attorney’s Office charged with fixing a bunch of flaws. There’s a very regimented sort of system,” defense attorney Jason Williams said.

The judges have always scrutinized requests for delays, Williams said, but “I think they are more so now, just because that building itself is getting more scrutiny.”

Fanning agrees that the judges may be looking harder at federal prosecutors following a scandal that continues to play out in court filings.

But he sees a simpler answer to the hard line that some judges seem to be taking.

“I don’t think the judges are treating prosecutors differently. I think the judges are coming down harder on the political corruption cases.

“Most of the judges in the Eastern District, they’re tired of seeing these defendants. They’re not mad at the government for bringing them. They’re mad at the defendants for doing the crap.”