In a shocking case of “grotesque” misconduct by federal prosecutors, a federal judge in Louisiana has ordered a new trial for five New Orleans police officers convicted for a shooting on the Danziger Bridge on September 4, 2005 — in the aftermath of Hurricane Katrina — and for a subsequent cover-up. This is another black eye for the Holder Justice Department that the media have barely covered.
Participating in the misconduct that the judge said had created an “online 21st-century carnival atmosphere” was Karla Dobinski, a lawyer in the Criminal Section of the Civil Rights Division of the Justice Department and the former deputy chief of the section. The reversal of the convictions is what Judge Kurt Engelhardt calls a “bitter pill” for Hurricane Katrina survivors, but his investigation of the matter provides an intensive inside look at the unprofessionalism of some of the lawyers at the Holder Justice Department, and also at the department’s attempts to obscure its misdeeds.
Last December, I reported on what Judge Engelhardt called the “skulduggery” and “perfidy” of DOJ prosecutors in a scathing order issued on November 26, 2012. At the time, the lawyers for the defendants had filed a motion for a new trial. They claimed that the prosecutors had leaked secret grand-jury proceedings and engaged in a public-relations campaign to inflame public opinion and sway the jury through anonymous postings on nola.com, the website run by the Times-Picayune.
It turned out the defendants’ lawyers were correct. In his November order, the judge detailed his findings that two senior prosecutors in the office of the U.S. attorney in New Orleans were responsible for many of the anonymous postings. These writings “mocked the defense, attacked the defendants and their attorneys, were approbatory of the United States Department of Justice, declared the defendants obviously guilty, and discussed the jury’s deliberations.”
As a result of the judge’s findings, those two senior prosecutors, Assistant U.S. Attorney Salvador Perricone and First Assistant U.S. Attorney Jan Mann, the chief assistant to U.S. Attorney Jim Letten, resigned. Letten himself resigned two weeks after the November order was issued, although he was not accused of making any of the postings himself.
Incredibly, Judge Engelhardt’s latest order, issued last month, indicates that Letten may have had knowledge of Mann’s blogging much earlier than first reported but didn’t inform the judge about it. Mann claims that she told Letten prior to March 2012 that she was also blogging anonymously, but tried “to downplay it.” This was six months before Judge Engelhardt’s November order. Yet Letten made no effort to inform the judge, even though, according to the judge’s opinion, Mann believes that Letten “reported [her blogging conduct] up to other supervisors at DOJ.”
When he issued his November 2012 order, Judge Engelhardt reserved his decision on the motion for a new trial and asked DOJ to do a further, intensive investigation to find out whether anyone else had been involved in these anonymous postings and illegal leaks in addition to the two lawyers who had resigned. The judge suggested that Attorney General Holder “seriously consider appointment of an independent counsel,” a suggestion that Holder “chose to disregard.”
Trying to figure out what the prosecutors had done sent the court “on a legal odyssey unlike any other.” But that legal odyssey led the judge on September 17 to grant a new trial to the New Orleans police officers. It is the first time, according to Judge Engelhardt, that federal “prosecutors acting with anonymity used social media to circumvent ethical obligations, professional responsibilities, and even to commit violations of the Code of Federal Regulations.”
The 129-page order, which details the misbehavior of the Louisiana DOJ lawyers and the Civil Rights Division’s Dobinski, is appalling reading. And it isn’t just that Dobinski was a high-level Justice Department lawyer who was posting anonymous blogs about the trial. She also encouraged other anonymous bloggers, who “repeatedly posted vigorous pro-prosecution statements strongly condemning the defendants, their witnesses, and their entire defense.”
To make matters worse, Dobinski was the supervising “taint” attorney assigned to the New Orleans case. When the Justice Department prosecutes a police officer, it has to be very careful to not use evidence that is protected from disclosure, such as compelled testimony. Under a 1967 Supreme Court decision (Garrity v. New Jersey), prosecutors cannot use the testimony of a police officer who has been forced to testify under threat of termination against that officer in a subsequent prosecution.
A “taint” lawyer is charged with making sure that the other Justice Department lawyers prosecuting the case do not use such privileged information or evidence. In other words, Dobinski was there in the Louisiana case to ensure that the constitutional rights of the defendants were protected. Her duties “expressly excluded assisting the prosecution’s investigation or trial strategy.” Yet, according to the judge, “before the jury even got the case for decision, she personally fanned the flames of those burning to see him [Kenneth Bowen] convicted.”