U.S.: Online comments shouldn't delay trial

The ongoing scandal about prosecutors’ anonymous online commenting about cases at New Orleans’ federal court isn’t sufficient reason to delay former Mayor Ray Nagin’s looming trial, attorneys for the government argued in a motion filed Friday.

Separately, prosecutors asked U.S. District Judge Ginger Berrigan to bar Nagin from asserting in the presence of the jury that prosecutors acted in bad faith or engaged in misconduct.

The motions were filed a day after Robert Jenkins, Nagin’s attorney, asked Berrigan to postpone the former mayor’s Oct. 28 corruption trial, saying he needs time to consider whether these comments have prejudiced Nagin’s ability to get a fair trial.

Jenkins’ filing was prompted by U.S. District Court Judge Kurt Engelhardt’s decision on Tuesday to toss the convictions of five NOPD officers involved in the Danziger Bridge shootings and subsequent cover-up on the grounds that the pervasive online commenting — along with some other government tactics — amounted to “grotesque prosecutorial misconduct.”

Assistant U.S. Attorney Matthew Coman argued that, even if Engelhardt’s ruling is fresh, most of the online commenting has been “well-publicized” for more than a year.

“The United States respectfully submits that the defendant’s most recent request for another trial continuance appears to be nothing more than a ‘last ditch’ effort to delay the start of trial,” Coman wrote. “The defendant now claims he needs more time to explore media posting issues involving former prosecutors that have been in the public domain for almost eighteen months.”

Jenkins asked Berrigan to postpone the trial until the reports by a special prosecutor charged with probing the actions of former prosecutors Sal Perricone and Jan Mann become public. Those reports, detailed in Engelhardt’s ruling, said that a Washington, D.C.-based prosecutor had commented six times about the Danziger case. Another New Orleans employee with a federal law enforcement position also commented, but that person and their exact position were not named in Engelhardt’s order.

Coman’s motion asserts that none of the prosecutors who resigned — Perricone, Mann, and their boss, longtime U.S. Attorney Jim Letten — were involved in the investigation leading up to Nagin’s indictment and were gone by the time charging decisions were made.

“These individuals did not direct, counsel or suggest any course of action related to this investigation or prosecution,” his motion says. “All of the evidence gathering, witness interviews, investigative decisions, record analysis, and document reviews were performed by trial attorneys and federal agents handling the case.”

Coman’s assertion that Letten and his top lieutenants were so far removed from the Nagin probe that they did not even “suggest any course of action” raised eyebrows among some members of the local defense bar, although none would go on the record. Typically, supervisors in the office are briefed regularly on the progress of major investigations, and they often offer input.

Along with Coman, the trial attorneys in the Nagin case include prosecutors Richard Pickens and Matthew Chester.

The government’s other motion, which seeks to bar Nagin from asserting prosecutorial misconduct, is a fairly standard pretrial motion “in limine” that seeks to block certain anticipated defenses. It also asks the judge to bar the mayor from cataloguing his “good deeds”; from making reference to the punishment he could face; and from encouraging “jury nullification.”

Prosecutorial misconduct, of course, might be a particularly tempting argument in the case for Nagin, given the current climate. Coman’s motion doesn’t seek to prevent Nagin from making a case for it, but he says the case should be made outside the jury’s view.

“While the defense has not alluded to anything specific as of yet, the United States believes it is imperative to avoid such issues at trial,” Coman wrote. “For example, the defendant could attempt to divert the jury’s attention away from the determination of his guilt or innocence by misleading the jury into focusing on irrelevant and inadmissible issues. Specifically, the defendant could attempt to shift the jury’s focus on his own actions and that of his co-conspirators by blaming the instant prosecution on a ‘shadow government.’ ”

In radio appearances as mayor, Nagin often attributed criticism of him to a “shadow government” comprising various unnamed elites.

Friday marked the deadline for filing substantive motions in the case.