Federal appeals court rips DOJ for misconduct in police prosecution

In the anarchy following Hurricane Katrina, a group of heavily armed New Orleans police officers was dispatched in response to an emergency call reporting shots being fired at police. Arriving amid chaos, police officers shot and killed two unarmed men, one of them developmentally disabled, and wounded four other unarmed civilians.

All of the victims were Black. Four of the seven officers eventually charged are Black or Hispanic. The other three are White.

After Louisiana prosecutors botched the case against the seven officers, producing a mistrial, the Holder Justice Department took over and obtained convictions. However, the Justice Department engaged in conduct so egregiously unethical that the district court overturned the convictions. And this week, the U.S. Court of Appeals for the Fifth Circuit affirmed that ruling in stinging opinion condemning the DOJ prosecutors.

Once again, as Christian Adams says, the Holder Justice Department did what it does best — delay and deny justice. (Adams’ account is here; Andy McCarthy’s is here. I draw in this post from these two accounts, both of which deserve to be read.)

What was the nature of the federal prosecutors’ misconduct? It began with a campaign to inflame potential jurors through the local media, including blogs.

Sal Perricone, a high-ranking prosecutor in the U.S. Attorney’s Office, using a fake name, posted commentary on Nola.com, the website of the Times-Picayune, that (in the words of the Court of Appeals) “castigated the defendants and their lawyers and repeatedly chastised the New Orleans Police Department as a fish ‘rotten from the head down.’”

Perricone was joined in this outrageous misconduct by Jan Mann, the first assistant to the U.S. attorney.

Meanwhile, back in Washington, Karla Dobinski, a veteran of Holder’s Civil Rights Division, also posted inflammatory commentary under at least one assumed name. Ironically — appallingly — Dobinsky was part of the DOJ “taint team” in this case. As such, she was assigned to protect the civil rights of the indicted defendants.

The cover-up, we are often told, is usually worse than the crime. In this case, the cover-up gave the offense a good run for its money.

It began when, after the trial in which the police officers were convicted, the U.S. Attorney in New Orleans, flanked by Jan Mann, assured the trial judge — Kurt Engelhardt — that no one else in the U.S. Attorney’s office knew about Perricone’s smear campaign. Later Mann, who was assigned to investigate the matter, told the judge that, indeed, Perricone was the sole culprit.

Yet, as noted above, Mann herself had engaged in the same kind of misconduct as Perricone.

The Justice Department was also less than forthcoming about the involvement of Dobinski, the Civil Rights Division lawyer who was supposed to protect the defendants’ rights, in the blogging campaign against the defendants. This devastating information had to be pried out of the DOJ.

For example, the DOJ’s chief prosecutor in the case, Barbara Bernstein, told the district court that no member of “the trial team” had commented online. As the court made clear, however, its concern was not limited to just the “team.” And even after Bernstein revealed that DOJ lawyers based in New Orleans were posting anonymously, she never gave up Karla Dobinski, according to Adams.

The DOJ’s misconduct left Judge Engelhardt little choice but to reverse the convictions and blast the Department. This he did in a scathing 129-page opinion which describes the Justice Department’s conduct as “bizarre,” “appalling” and “grotesque.”

Now, the Fifth Circuit, noting that the Justice Department lawyers stoked a “mob mentality” against police officers, has affirmed the trial court’s decision to order a new trial. In addition to blasting the DOJ’s rabble rousing blog campaign and dishonest “investigation” thereof, the court found that cooperating defendants called to testify by the government lied; that defense witnesses were intimidated from testifying; and that inexplicably gross sentencing disparities resulted from the government’s plea bargains and charging practices.

What has happened to the DOJ culprits? Perricone resigned. Mann retired with (as the Fifth Circuit made a point of noting) her “panoply of federal benefits intact,” notwithstanding her bald-faced lies to the district court.

And Dobinski? She remains in her high-paying job at the Civil Rights Division, in the unit that prosecutes police officers, having received only a “bare reproof,” as the appeals court describes it.

Finally, Bernstein, who held out on the trial judge, received an award from Eric Holder for her work after the New Orleans police trial.

The Fifth Circuit’s decision on New Orleans fiasco provides a fitting coda to Eric Holder’s ideology-driven reign of malfeasance at the DOJ. Now that Loretta Lynch is in charge, can we expect better?

During the Lynch confirmation hearing, Adams reminds us, Ted Cruz asked Lynch what she intended to do about Dobinski’s misconduct and continued employment. Lynch gave no substantive answer.

The question arises even more acutely now, in light of the Fifth Circuit’s decision.

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