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Oct 02 2013

Fed Prosecutors’ Anonymous Social Media Posts Cause Overturning of Convictions in High-Profile New Orleans Murder Trial

I have blogged quite often about how social media has impacted trials and lawyering, but a decision last week by Federal Judge Kurt D. Englehardt of the District Court in New Orleans was a huge setback in the Justice’ Dept.’s efforts to reform the New Orleans Police Dept. and hold some of its officers accountable for past abuse. The opening paragraph of the scathing 129-page decision opens the story and explains the impact of the decision better than I ever could:

With the relatively recent advent of the age of cyberspace and social media/networking, courts have anticipated a myriad of issues and potential controversies. This court is unaware of any case, however, wherein prosecutors acting with anonymity used social media to circumvent ethical obligations, professional responsibilities and even to commit violations of the Code of Federal Regulations. Hence, to the court’s knowledge, there is no case similar, in nature or scope to this bizarre and appalling turn of events.

The case involved claims brought against five New Orleans Police Department Officers who were convicted in 2011 of police abuse following the riotous situation after Hurricane Katrina. The worst allegation was that the men, responding to a distress call, opened fire on people running across the Danziger Bridge. Two men were killed and four others were badly injured. The officers were charged with engaging in a massive cover-up which allegedly began with the arrest of the brother of one of the victims. At the time, a senior U.S. Justice Department official called the case the most significant police misconduct prosecution since black motorist Rodney King was beaten by Los Angeles police in 1991.

NOLA PDTroubling information about the case first sprang up in 2012, with Judge Englehardt criticizing federal prosecutors for the plea deals offered to cooperating witnesses, among other things. Lawyers for the defense then accused the government of mounting “a secret public relations campaign” aimed at discrediting the defendants. One of the posts by “legacyusa” stated:

“NONE of these guys should had have [sic] ever been given a badge,” the commenter, identified only as “legacyusa,” wrote. “We should research how they got on the police department, who trained them, who supervised them and why were they ever been promoted. You put crap in — you get crap out!!!”

Other messages referred to Police Superintendent Riley, who is black, as “racist,” “inept” and “delusional.” That same year it was revealed “legacyusa” was someone in the United States Attorney’s Office. The comments were posted on nola.com (the official website of the New Orleans Times-Picayune) through several different anonymous handles. “Legacyusa” was revealed to be Sal Perricone, a longtime Assistant United States Attorney who had been working on the anti-corruption case. He had repeatedly posted that the NOPD was a “joke” “corrupt” and “ineffectual.”
A few months later, the office’s second-highest prosecutor, Jan Mann, was also revealed to be an anonymous poster, also commenting negatively about NOPD while the NOPD trials were going on. At one point, Mann was representing the government before Judge Englehardt in a hearing he was conducting about the posts and told the court she had no idea who was posting on nola.com.
Not only did she and Perricone resign, but the revelations that some of his top people were trying to influence public opinion and the jury pool by commenting negatively on the popular nola.com site led US Attorney Jim Letten to give up his office as well. Letten was well-respected and was at the time, the longest serving United States Attorney in the country.
Last month it has been revealed that a third US Attorney, Karla Dobinski, had also commented several times on nola.com under the handle “Dipsos.” While her comments were not derogatory, they were stridently pro-prosecution and encouraging of others who were similarly-minded. She had served since 1985 and had an important role leading up to the officers’ trial as the lawyer in charge of the “taint team.” That group ensured that testimony given by police officers in the Grand Jury was not used against them if the went to trial. In overturning the convictions, Judge Englehardt stated that this latest revelation was “the straw that broke the camel’s back.”
Justice Department rules forbid prosecutors from making public comments that might influence the outcome of a case. It is mind-boggling that three experienced federal prosecutors would put their jobs at such jeopardy. Becoming an assistant United States Attorney is not an easy task. It is a prestigious position sought by many. To learn that three top AUSAs were behaving like “Mean Girls” in order to influence the outcome of a criminal trial makes one wonder what else was going on in their office.
The accumulated conduct was just too much for Judge Englehardt to allow:

This case started as one featuring allegations of brazen abuse of authority, violation of the law, and corruption of the criminal justice system; unfortunately, though the focus has switched from the accused to the accusors, it has continued to be about those very issues. After much reflection, the Court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end.

The growth and explosion of social media has affected trials all over the country but this is by far the most troubling symbol of the potential for its abuse. Stephen Gillers, a law professor at NY University who specializes in legal ethics, was quoted in the Times about the decision and stated, “It’s almost unbelievable. This is the most dramatic danger sign [of the risks of social media] that we’ve had come along.”

The question now becomes whether the government will mount a re-trial. The court gave the government 30 days to decide and to begin the process of gearing up for Round Two.

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