New Orleans federal judge’s order chastises DOJ’s OPR
4:03 pm, December 11th, 2012
An order by a federal judge in New Orleans that has led to the special appointment of an Atlanta federal prosecutor to investigate other federal prosecutors in New Orleans included scathing language about the U.S. Justice Department’s Office of Professional Responsibility, which investigates allegations of misconduct against federal prosecutors and federal judges.
The order, handed down Nov. 26 by U.S. District Judge Kurt Engelhardt of the Eastern District of Louisiana, chastised the division, which has taken fire before – most notably for its botched prosecution of former U.S. Sen. Ted Stevens of Alaska that led U.S. Attorney General Eric Holder to dismiss the indictment against Stevens in 2009 and appoint a special prosecutor to investigate OPR lawyers.
OPR also prosecuted U.S. District Senior Judge Jack Camp of the Northern District of Georgia, who was arrested trying to buy illegal drugs while armed. Although Camp pleaded guilty to a single drug felony and two misdemeanors, at his sentencing, a visiting federal judge from Washington converted the felony plea to a misdemeanor.
Engelhardt’s recent criticism of OPR stems from an internal investigation run by OPR and the U.S. Attorney for the Eastern District of Louisiana of unauthorized online postings by two of the New Orleans office’s federal prosecutors – First Assistant U.S. Attorney Jan Mann and Assistant U.S. Attorney Sal Perricone.
The anonymous online comments were highly critical of defendant police officers who were prosecuted in connection with a deadly shooting on a bridge in New Orleans in the aftermath of Hurricane Katrina. Perricone resigned last March after admitting that he had made some of the anonymous comments. U.S. Attorney Jim Letten resigned last week after Mann admitted that she had made similar anonymous postings about the case.
First Assistant U.S. Attorney John Horn of the Northern District of Georgia was assigned by Holder last week to follow the judge’s directive to redo the investigation.
In his order, Engelhardt explained why he wanted the investigation redone by a special prosecutor. He noted that while “the usual DOJ protocol appears to require simply placing the matter in the hands of the DOJ’s OPR [Office of Professional Responsibility], such a plan at this point seems useless. First of all, having the DOJ investigate itself will likely only yield a delayed yet unconvincing result in which no confidence can rest.”
“If no wrongdoing is uncovered,” the judge wrote in his order, “it will come as a surprise to no one given the conflict of interest existing between the investigator and the investigated.”
Engelhardt also noted that although the investigation of Perricone — who publicly admitted writing a number of the anonymous postings — had taken eight months, “It comes as a complete surprise to everyone at DOJ and the U.S. Attorney’s office that another ‘poster’ [Mann] exists, especially one maintaining as high a position in the U.S. attorney’s office.”
“It would seem obvious,” the order stated, “that, upon news of Perricone’s activities, among the first questions to be answered were: 1) Is anyone else in the U.S. Attorney’s Office posting inappropriate and/or compromising online comments? And 2) Did anyone in the U.S. Attorney’s Office know or suspect that Perricone was posting prior to his admission in March 2012? (Even if OPR asked the first question in March, one shudders to imagine what answer was given by First AUSA Mann. Either she confessed to such activity, or falsely denied it.) Regardless, had the DOJ proactively and independently investigated and carefully analyzed the online comments in March 2012 as did the [defense] expert who uncovered Perricone and Mann, the answer to the first question would have been known months ago.”
Engelhardt’s order continued, “ It is difficult to imagine how this could possibly have been missed by OPR, and surely raises concerns about the capabilities and adequacy of DOJ’s investigatory techniques as exercised through OPR. In any event, the Court has little confidence that OPR will fully investigate and come to conclusions with anywhere near the efficiency and certainty offered by suitable court-approved independent counsel. The Court strongly [judge’s italics] urges DOJ to do so post haste. Should DOJ determine not to proceed accordingly, the Court is left to proceed as it sees fit.”
A DOJ spokeswoman in Washington said no one was immediately available from OPR to comment.