New Orleans Police Raise Prosecution Misconduct Claim

Tommy TuckerThe criminal justice system is supposed to be clear-cut, like the old cowboy movies. The law enforcers wear the “white hats” as New Orleans radio host Tommy Tucker of WWL-AM told me on his show May 16. The "bad guys" wear the black hats.

But things are not so simple in real life. Several recent allegations of serious misconduct in New Orleans show why. 

Tucker, whose CBS-affiliate show is broadcast at 50,000-watts through five Gulf states, finds it "immoral"  that federal prosecutors apparently hid evidence as they convicted four New Orleans policemen of covering up their wrongful killing of four Hurricane Katrina victims in 2005. The police defendants this week demanded a new trial.

Separately, a senior federal prosecutor based in the city has confessed to authoring more than 500 anonymous web commentaries on civic affairs. Many of his harsh comments under the name "Henry L. Mencken1951" sought to shape public opinion in unprofessional ways about his own cases, colleagues, judges or defendants.

Tucker invited me on his show to ask: How serious are such irregularities? How common are they?

Eric Holder

Very serious and very common, I responded, citing a six-month USA Today investigative report published in 2010 documenting 201 cases nationwide where federal judges had found law-breaking or similar serious misconduct since 1997 by federal prosecutors, who are supposed to be the elite among law-enforcers. Much of this involved suppressing evidence that defendants were supposed to receive pretrial that might help them prove their innocence. Similarly, the self-righteous, secretive anger suggested by the "Mencken" comments is not uncommon among law-enforcers in our Justice Integrity Project experience.

Attorney Gen. Eric Holder, left, refused to answer any USA Today's questions about its investigation. I noted that: Holder’s willingness to stone-wall such a major news organization thus illustrates the DOJ's horrid lack of accountability. These lapses and cover-ups occur under both Democratic and Republican leadership, and are nothing like the image of the "white hat" Justice Department I held when I covered it full-time as a newspaper reporter from 1976 to 1981. Tragically, the Department seems to be evolving toward a "win-at-any-cost mentality" far too often, with scant concern for accountability except if an aggrieved defendant is so fortunate as to land before a fair federal judge.

Some judges, like some prosecutors, care passionately about justice. Others demonstrably do not. But the system should not be a lottery for litigants.

Click here for the WWL interview, and see below for details on the misconduct allegations regarding New Orleans-based federal prosecutors.

 

Also relevant is the Justice Department's timid follow up to the BP Deepwater Hoirzon oil disaster. We recently cited it as an example of how authorities often select for prosecution certain individuals -- typically weak, wounded and without allies -- and avoid other obvious and more powerful targets.

Thus, Justice Department's announced here the first criminal charges regarding the BP Deepwater Horizon oil disaster two years ago. The blow-out threatened the health and livelihoods of vast numbers of Gulf of Mexico residents, plus those otherwise affected by its food chain. Now, two years after this monumental and preventable disaster, the DOJ focused the entire power of the United States government against one a mid-level engineer accused of deleting emails. The defendant Kurt Mix, 50, is now threatened with 20 years in prison and $250,000 in fines for each count. Yet the United States Coast Guard itself prevented some journalists from photographing or otherwise covering the scope of the disaster at the time, and federally authorities have continually puffed up the safety of conditions.

Clearly, this is a lot of ground to cover.  But WLL's  host aired our discussion over three segments. And the topic could hardly be more dramatic: Life and death.

 

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Related News Coverage

New Orleans Controversies

NOLA.com / New Orleans Times-Picayune, 4 former officers convicted in Danziger case ask for new trial, saying prosecutors hid evidence, Brendan McCarthy, May 14, 2012.  Attorneys for four former New Orleans police officers convicted recently in the Danziger Bridge shootings and cover-up are asking for a new trial, alleging that federal prosecutors hid evidence and relied on false testimony in the high-stakes case. The motion makes two main claims: that federal prosecutors only recently turned over key videotaped evidence, and that the government knowingly used witness testimony that the video proved was false. The motion, filed Friday by the attorney for convicted Sgt. Kenneth Bowen, was later adopted by attorneys for Anthony Villavaso, Robert Faulcon and Robert Gisevius. The court filing states that a video shot by a CBS News affiliate in Miami on the Danziger Bridge walkway shows no bullet casings. The video was shot on the day of the shooting, some time before James Brissette's body was removed from the scene. Former officer Jeffrey Lehrmann testified at trial that Bowen kicked casings off the walkway weeks after the shooting as part of an effort to cover up what happened on the bridge. But Bowen couldn't have kicked the casings if they weren't there, according to Bowen's attorney, Robin Schulberg, a federal public defender.

The video "definitively contradicts" Lehrmann's testimony, Schulberg noted in her motion. Lehrmann, a former NOPD officer and federal immigration agent who pleaded guilty to misprision of a felony, said he witnessed Bowen kick casings into the grass below the bridge in October 2005, a day before crime lab technicians were to process the scene. Lehrmann, who cooperated with prosecutors, testified that he asked Bowen why he was kicking the casings, and Bowen said the lab techs would find them anyway.

Federal prosecutors thus presented testimony they knew to be false, the motion states. That claim will be ruled on by U.S. District Judge Kurt Engelhardt, who has expressed similar sentiments, complaining that the government's case relied too heavily on "using liars lying to convict liars." Schulberg's motion further alleged that the government long possessed the video and was well aware of its contents. The video was not turned over during the initial discovery process, which violates series of U.S. Supreme Court decisions -- starting with Brady v. Maryland, in 1963 -- that require prosecutors to turn over evidence that may be favorable to a defendant before trial.

NOLA.com / New Orleans Times-Picayune, 'Mencken1951' unmasked: It is federal prosecutor Sal Perricone, Staff report, March 15, 2012. U.S. Attorney Jim Letten confirmed this afternoon that Sal Perricone, one of his top prosecutors, has been using the handle "Henry L. Mencken1951" to bash landfill owner Fred Heebe and a raft of other local and national figures, including federal judges, in the comments section on NOLA.com. Perricone "'readily admitted" using the pseudonym, and the matter has been referred to the Justice Department's Office of Professional Responsibility, Letten said. Assistant U.S. Attorney Sal Perricone 'readily admitted' using the pseudonym, and the matter has been referred to the Justice Department's Office of Professional Responsibility, his boss, U.S. Attorney Jim Letten, said.  It will be up to that office to determine Perricone's punishment, Letten said.  Perricone -- whom Letten called a "fine veteran attorney" -- has been recused from all matters that he discussed in comments on NOLA.com, Letten said. He said he could not enumerate which cases that might include.  He added that Perricone, 60, the office's senior litigation counsel, "knows the restrictions and laws under which we operate."
"All our folks know commenting on ongoing cases are things you're not supposed to do," Letten said.

 

BP Prosecution

Washington Post, Former BP drilling engineer faces charges related to the Gulf oil spill, Steven Mufson, April 24, 2012. A former BP drilling engineer was arrested Tuesday on charges of intentionally destroying text messages sought by federal authorities as evidence in the wake of the April 20, 2010, Deepwater Horizon oil spill disaster, the Justice DGreg Palast Coverepartment said. The two charges of obstruction of justice filed against Kurt Mix, in the Eastern District of Louisiana, are the first criminal charges connected to the oil spill caused by a blowout on BP’s Macondo well. If found guilty, Mix could face up to 20 years in prison and up to $250,000 in fines for each count.

Truthout / Buzzflash, Arrest of BP Scapegoat: Real Killers Walk, Greg Palast, April 24, 2012. The Justice Department went big game hunting and bagged a teeny-weeny scapegoat. More like a scape-kid, really. Today, Justice arrested former BP engineer Kurt Mix for destroying evidence in the Deepwater Horizon blow-out. I once ran a Justice Department racketeering case and damned if I would have 'cuffed some poor schmuck like Mix -- especially when there's hot, smoking guns showing greater crimes by BP higher-ups.

 

Selected Justice Integrity Project Investigations

Dr. Cyril WechtHuffington Post, Famed Physician Dr. Cyril Wecht: Fight Justice Department Misconduct, Sept. 27, 2010. Forensic medical expert Cyril H. Wecht provides a vitally needed defendant’s perspective on the terrible Justice Department misconduct that USA Today just documented in a major investigative project. On Sept. 23, the paper reported 201 criminal cases in which federal judges found that prosecutors broke laws or ethics rules since 1997.  Overall, the abuses put innocent people in jail, and set guilty people free. Wecht’s prosecution didn’t fall within the newspaper’s scope because his first judge in Pittsburgh coddled the prosecution instead of criticizing it.  But we at the Justice Integrity Project, a non-partisan legal reform group, documented Wecht’s ordeal from 84 overblown felony charges in 2006 carrying long prison sentences for trivial matters.  He was vindicated last year at age 78.

Bernard KerikJustice Integrity Project, Court Slams Kerik Appeal….But Seeing Is Believing, Andrew Kreig, April 5, 2011.  A New York federal appeals court last week rejected former New York City Police Commissioner Bernard Kerik’s claims of unfairness when his judge sentenced him to four years in prison for tax and related charges. But I was an eye-witness to the unfairness to the Republican Kerik during his sentencing in New York on Feb. 18, 2010. Kerik, a career law enforcer much-honored for valor as a city police detective, has described himself as petrified during the proceedings for fear of what the judge was doing. Kerik is portrayed immediately afterward at right with his wife, Hala, in a photo by Maxine Suselles.

Connecticut Watchdog, Case Closed on the U.S. Attorney Firings? Really? DOJ’s Political ‘Purge’ and Torture Probers Suppressed Evidence In Connecticut Crime Case, Andrew Kreig, July 26, 2010.

 

USA Today Series USA Today, Misconduct at the Justice Department, Kevin McCoy and Brad Heath, USA TODAY, Dec. 11, 2010. Assistant U.S. Attorney Jeffrey Kent unexpectedly found himself in the legal cross hairs in 2003…."The so-called ethics police violated the same rules they falsely accused me of violating," says Kent, now 66 and retired. "They created false evidence and hid exonerating evidence. How can that system be trusted?"  The case spotlights questions about the Office of Professional Responsibility, the Justice Department watchdog agency that can save or ruin a federal prosecutor's career as it enforces legal and ethics rules.  For full USA Today series begun on Sept. 23, 2010, see Index

The paper's multimedia documentation included:

VIDEO: Wrongfully jailed man: 'It can happen to you'
EXPLORE CASES: Investigate the misconduct cases we identified
JUSTICE DEPARTMENT: Prosecutors must brush up on duties
CLOSER LOOK: Prosecutor misconduct can take many forms
FULL COVERAGE: Federal prosecutors series
 

Breaking News

Montgomery Independent, Federal judge's lengthy affair with court worker is exposed, Bob Martin, May 16, 2012. On April 10, Lisa Boyd Fuller filed for divorce in Montgomery County against United States District Judge Mark Everett Fuller.
 
Montgomery Independent / Wetumpka Herald, Fuller’s ethics called into question in suit, Bob Martin, May 16, 2012. The past judicial record of U.S. District Judge Mark E. Fuller of Montgomery has demonstrated his failure on many occasions to step aside from cases thought by lawyers to be compromised by his personal, financial or political interests. This past month personal interests came to the forefront of Fuller’s life with the filing of divorce papers by his wife, Lisa. The long term abuse of trust by Fuller, described to me from sources inside the U.S. Courthouse in Montgomery and others continues today and has lasted at least 4 years. It involves a former female courtroom deputy in her late 30s with children ages 9 and 14. Her husband obtained a divorce several months ago.
 
Alabama Background
Huffington Post, Alabama Decisions Illustrate Abuse of Judicial Power, Andrew Kreig, June 10, 2009.  The plight of litigants who face a biased judge is illustrated by the track record of a prominent Alabama federal judge, as well by major recent decisions requiring new trials in West Virginia and Georgia courts. The track record of Chief U.S. District Judge Mark E. Fuller of Montgomery, Alabama shows that he continues to supervise cases compromised by his personal, financial or political interests despite his promise at his 2002 confirmation hearing to recuse himself from any conflicts. Exposure of Fuller's record is timely because of the Senate's forthcoming hearings for Obama administration judicial nominees, and because of growing concerns about the recusal standard. These include the U.S. Supreme Court's 5-4 ruling June 8 that a West Virginia Supreme Court judge should have recused himself from a case involving a major contributor to his judicial election campaign. Also, a federal judge in Georgia admitted last month that he shouldn't have tried and sentenced a high-profile political adversary who now seeks dismissal of the charges.

Huffington Post, Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company, Andrew Kreig, May 15, 2009. The Alabama federal judge who presided over the 2006 corruption trial of the state's former governor holds a grudge against the defendant for helping to expose the judge's own alleged corruption six years ago. Former Gov. Don Siegelman therefore deserves a new trial with an unbiased judge ─ not one whose privately owned company, Doss Aviation, has been enriched by the Bush administration's award of $300 million in contracts since 2006, making the judge millions in non-judicial income. These are the opinions of Missouri attorney Paul B. Weeks, who is speaking out publicly for the first time since his effort in 2003 to obtain the impeachment of U.S. District Judge Mark E. Fuller of Montgomery on Doss Aviation-related allegations.