James Gill: Perricone’s defense sounds like nonsense

Sal Perricone says he had a constitutional right to post all those wacky tirades online and should not, therefore, be banned from practicing in the federal courts around Baton Rouge.

He is out for good in the New Orleans district, having “resigned in lieu of discipline” for appending pseudonymous comments to reports on federal cases on a newspaper website. Thus, he cannot represent clients in the courthouse where he used to push his weight around as an assistant U.S. attorney.

Perricone now claims a U.S. Supreme Court ruling supports his contention that he had a First Amendment right to post snide remarks under various aliases.

That is an astounding proposition, given that Perricone, his then-superior Jan Mann, who also posted comments, and U.S Attorney Jim Letten all had to resign. Five New Orleans cops, convicted in the post-Katrina bloodbath on the Danziger Bridge, have won new trials because of what federal Judge Kurt Engelhardt termed “grotesque prosecutorial misconduct” by Perricone and Mann.

Indeed, Perricone’s latest proposition is so astounding that you have to wonder why nobody figured it out before. The answer is that it is nonsense. Chief Judge Brian Jackson ordered Perricone to show cause why he should not be kicked out of the Middle District. Perricone responded with a petition that suggests his legal skills will not be greatly missed.

He retains the affection for the $5 word that has always marked his court filings. Thus, he is representing himself “due to the paucity of resources available to me.” He notes that he took his medicine in the Eastern District rather than “provoking an aleatory proceeding.”

He appears, however, unable to understand plain words. It does not take a law degree to read the Supreme Court opinion he cites and see that its conclusion is the opposite of what he avers.

The case dates from 1991, when the Supreme Court invalidated a Nevada rule under which an attorney called Dominick Gentile had received a reprimand for comments made on a pending case on the courthouse steps. Perricone triumphantly quotes Anthony Kennedy’s opinion that “disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment.” That was not, however, why the court ruled in Gentile’s favor. The Nevada rule was found wanting because it was too vague for lawyers to know how far they could go in commenting on the cases they handled.

But a majority of the court disagreed with Kennedy on the First Amendment issue and decided that a “likelihood of material prejudice” was sufficient grounds for restrictions on what lawyers may say in public.

“I humbly submit that all of my comments were written words and fall within the protective ambit of the First and 14th Amendments,” Perricone writes. It is hard not to feel sorry for a experienced attorney who can make such a fundamental error in a court filing.

But then we — or, at least, Jackson — are supposed to feel sorry for Perricone. “I entreat Your Honor to accept my apology,” he writes, noting that he is 63 years old, his “career was shattered” and his “life was changed” when he was outed as the chatterbox of the Web.

Perricone never quite admits he was wrong, however. The closest he comes is when he writes, “While I argue that I had a constitutional right to engage in anonymous commenting on a newspaper website, I now understand the ethical considerations of my behavior.” How it can be unethical to exercise a constitutional right, he does not explain.

The meekness of his court filing is a far cry from his demeanor when he was strutting along the courthouse corridors as a federal prosecutor.

He claims that the Ambien he was taking at the time had a “somnambulant effect,” and he does not remember posting many of the offending comments.

He concedes that “others may snicker and express disbelief” at this. That’s the one thing he got right in his response to Jackson’s order. Perricone was such a famously obnoxious bully in his heyday that his downfall brought a smile to many lips.

James Gill’s email address is jgill@theadvocate.com.