A long-hidden report finally made its way into daylight this week, but the result isn’t quite a paragon of transparency.
Three years after scandal shook the U.S. Attorney’s Office in New Orleans, the Justice Department this week released the findings of a wide-ranging and widely watched misconduct probe that blasted former prosecutors Sal Perricone and Jan Mann for posting anonymous comments under online news stories.
Defense attorneys, long frustrated by what they view as an air of mystery enveloping the powerful office, had held out hope that the Office of Professional Responsibility’s report would shed new light on a saga that prompted the resignation of former U.S. Attorney Jim Letten and cast a cloud of uncertainty over several federal cases.
But while the 152-page report opened an unprecedented window into the commenting imbroglio, it stopped far short of providing an unfettered view. The government, citing privacy exceptions under the federal Freedom of Information Act and a 2013 court ruling that sealed significant parts of the investigation, blacked out entire sections of the report.
The OPR concluded in the report that the misconduct by Mann and Perricone “caused significant damage to the good will and reputation” of the local U.S. Attorney’s Office and the Department of Justice. But there still has been no full public accounting of what went wrong in Letten’s office and who is to blame.
The heavy redactions obscured some chapters of the OPR review, including those dealing with who knew what and when within Letten’s office, lending the report the feel of a scratched CD that skips entire tracks.
Even some portions of the report’s table of contents were deemed inappropriate for release, shielding the names of Justice Department officials interviewed in the probe. Almost every mention of Mann’s husband, Jim, who also worked in the U.S. Attorney’s Office, appears to have been blacked out, as were the names of several of his former colleagues.
In some cases, what has been redacted is obvious because of the context, but in other cases, it’s not.
Defense attorneys, some of whom have sought to have their clients’ federal charges thrown out in light of the misconduct, said they weren’t surprised at the omissions, given the secrecy that has long accompanied the commenting affair. A number of quotations from Perricone himself are blacked out, including remarks he made in an interview with the state Office of Disciplinary Counsel and during a non-public hearing in U.S. District Court in October 2012.
“It’s clear that they’ve held everything very close to their vest,” said Mike Fawer, a veteran defense attorney, referring to the Justice Department. “I think there are some facts out there that they’ve not yet revealed in terms of the conduct of Perricone and Mann.”
The OPR report concluded Letten had not been aware, before the scandal became public, that two of his most trusted lieutenants had been authoring anonymous comments under news articles posted to nola.com about active federal investigations. It concluded that Perricone and Mann committed “intentional professional misconduct” by lashing out at local attorneys, judges and criminal defendants using online aliases.
The report was particularly critical of Mann, who was found to have deceived Justice Department officials by handling much of the initial fallout from Perricone’s admissions despite her own anonymous commenting.
The OPR attempted to referee conflicting accounts about whether Mann had alerted Letten of her posting habit before she was outed, in late 2012, by a defamation lawsuit filed by Fred Heebe, a landfill owner who was the target of a federal investigation. But the public doesn’t get to read about everything the OPR discovered: Several passages — totaling at least six paragraphs — under a section titled “Mann’s Contention That She Informed Letten” were blacked out in the report.
The government contends that information is protected by a November 2013 ruling by U.S. District Judge Kurt Engelhardt in the case of several former New Orleans police officers accused of shooting half a dozen people on the Danziger Bridge after Hurricane Katrina. Engelhardt overturned the guilty verdicts in that case, citing what he called “grotesque prosecutorial misconduct.”
The judge, in a ruling that released several hundred pages of documents related to the commenting scandal, opted to keep several other investigative materials under seal, pointing to a “compelling interest of confidentiality” as the Justice Department appeals the Danziger convictions and prepares for a possible retrial. “The court makes this determination reluctantly, sparingly, and only on the basis of compelling interests,” Engelhardt wrote.
Among local defense attorneys, perhaps the most coveted component of the commenting fallout has been a still-sealed inquiry that was led by Atlanta-based federal prosecutor John Horn. Virtually every reference to Horn was blacked out in the OPR report released this week, except for one that noted Horn had found no evidence to establish that any other U.S. Attorney’s Office employees, besides Perricone and Mann, had made “extrajudicial statements” about federal investigations in online postings.
The report also revealed that a federal prosecutor in Utah determined Perricone had not committed any crimes; the prosecutor had been exploring the possibility that he violated the law by revealing protected grand jury information.
Arthur “Buddy” Lemann, another veteran defense attorney who has accused the government of erecting an “iron curtain” of secrecy around the commenting scandal, questioned Tuesday whether the full story involving Mann and Perricone ever will come to light. Lemann said he was frustrated the government released the OPR report a mere two weeks after one of his clients, former Jefferson Parish President Aaron Broussard, decided not to request a rehearing of an appeal he lost in early March. Broussard pleaded guilty to corruption charges in 2012 but has sought to have his plea thrown out on the basis of prosecutorial misconduct.
Broussard was mentioned by name in the OPR report, which found that Mann failed to disclose to Justice Department officials that she had posted three comments on nola.com articles about Broussard’s case, including one in which she invoked Al Capone. A Justice Department attorney, tasked with determining which cases Letten’s office should recuse itself from in the wake of Perricone’s admissions, said he would have recommended Letten’s office recuse itself from Broussard’s case had he known about Mann’s comments.
“I don’t trust coincidences,” Lemann said of the timing of the OPR report. “This has been a very long, frustrating and unfair situation.”
Follow Jim Mustian on Twitter, @JimMustian.