As he blessed a plea deal Wednesday for the five former New Orleans police officers involved in the Danziger Bridge shootings and the brazen cover-up that followed, U.S. District Judge Kurt Engelhardt told the courtroom: “There’s plenty of blame to go around.”
And in a stinging rebuke from the bench, Engelhardt for the first time publicly cast a portion of that blame on two high-ranking Obama administration appointees who once led the Civil Rights Division of the U.S. Department of Justice.
One of them, current U.S. Labor Secretary Thomas Perez, is being mentioned as a potential running mate for likely Democratic Party presidential nominee Hillary Clinton.
Citing still-sealed affidavits in the case, Engelhardt said Perez and current White House adviser Roy Austin Jr. directed Barbara “Bobbi” Bernstein, the lead prosecutor in the Danziger case, not to disclose her knowledge that a fellow Justice Department lawyer, Karla Dobinski, was among those who had posted anonymous comments beneath online news stories about federal cases.
Those postings, and what Engelhardt described as a concerted government attempt to keep them under wraps, led to his stunning September 2013 order vacating the original convictions and prison sentences for the five ex-cops based on what the judge described as “grotesque prosecutorial misconduct.”
Dobinski’s online remarks, though seemingly benign boosterism, were about the Danziger trial in progress. And unlike Sal Perricone and Jan Mann, the two key deputies whose online posts engulfed then-U.S. Attorney Jim Letten’s office in scandal, Dobinski was involved in the Danziger case.
Dobinski, who went by “Dipsos” online, was the Washington, D.C.-based leader of a “taint team” assigned to make sure prosecutors avoided mentioning certain parts of the defendants’ statements that had been ruled out of bounds.
Citing a handful of affidavits from the case, Engelhardt said Wednesday that Bernstein learned of Dobinski’s posts on Dec. 21, 2012, a few weeks after Letten resigned under the weight of the growing scandal.
By then, at Engelhardt’s urging, then-Attorney General Eric Holder had assigned a special outside prosecutor, John Horn, to investigate the extent of the online postings and report back to the judge. Another lawyer, Charysse Alexander, was also assigned to investigate.
According to Engelhardt, Bernstein told both Austin and another Justice Department official, Robert Moossy, what she had learned. But she never told the judge.
“The court finds the issue unsettling, and unresolved, whether Ms. Bernstein satisfied her duty of candor and honesty in dealing with the court,” Engelhardt said.
According to the judge, Austin signed an affidavit saying, “I told Ms. Bernstein that she should not make any notifications because the matter of Ms. Dobinski’s comments would be handled by Mr. Horn and Ms. Alexander as they deemed appropriate.”
Still unclear is what, if anything, Perez and Austin did with the information.
Engelhardt, who was nominated to the federal bench in 2001 by former President George W. Bush, wouldn’t learn about the third Justice Department commenter until Horn submitted his report in March 2013.
That report, which Bernstein acknowledged she reviewed, ostensibly for factual errors, did not include the third online commenter’s identity. Dobinski’s name came to light only in a second report, after Engehardt said he “pressed the issue.”
Engelhardt has kept Horn’s report under seal, though he referred to its findings at length in his September 2013 order, dealing a huge setback to what was long viewed as a remarkable triumph for the department’s Civil Rights Division.
Perez and Austin have made other marks in New Orleans, playing significant roles in negotiating federal consent decrees guiding reforms to both the NOPD and the Orleans Parish jail, before moving on to other government posts.
Austin is now deputy assistant to the president for urban affairs, justice and opportunity.
Email and phone messages for Perez to a Department of Labor spokeswoman were not returned.
On Wednesday, Engelhardt cast most of his ire at Bernstein, saying she “did not make such a critical disclosure to this court, which the court believes was and is mandatory.”
“To be more specific, the obligation to make such a disclosure to the court is non-delegatable; that is, the burden is upon the attorney herself and not anyone else,” the judge said. “It cannot be overruled by an office superior so as to later allow the attorney the Nuremberg defense such as, ‘I was just following orders in not making a disclosure.’ ”
The reference is to a common defense employed after World War II by Germans accused of war crimes.
Engelhardt added: “Of course, as we know now and, as is clearly reflected in the record, no proper and complete prompt disclosure by name of Karla Dobinski’s unethical and unprofessional activity was made — not by Ms. Bernstein, Mr. Moossy, Mr. Austin, Mr. Perez or Mr. Horn or Ms. Alexander.”
As recently as last month, Engelhardt continued to push for answers to that lapse, as he weighed a motion by attorneys for the five former cops to bar Bernstein from a retrial in the Danziger case.
Engelhardt ordered Horn and Alexander to submit their own affidavits to “categorically confirm or deny” what Moossy and Austin attested in their sworn statements.
The judge also demanded in his March 11 order that the special prosecutors reveal when they first knew of Dobinski’s online posts, and exactly who read the report they submitted to him in March 2013.
That report, and a second one identifying Dobinski as an online commenter, laid the foundation for Engelhardt’s order granting new trials to former officers Robert Faulcon, Kenneth Bowen, Robert Gisevius and Anthony Villavaso and former Sgt. Arthur “Archie” Kaufman, who on Wednesday admitted his leading role in an elaborate cover-up of the Sept. 4, 2005, shootings that left 17-year-old James Brissette and 40-year-old Ronald Madison dead and four others injured.
Originally sentenced to a 65-year prison term, Faulcon received 12 years under the new deal. Bowen and Gisevius accepted 10-year terms, down from 40 years apiece. Villavaso, who had been sentenced to 38 years, received seven. Kaufman saw his sentence shaved from six to three years.
Villavaso, having already spent some six years behind bars, is slated to go free within weeks, said his attorney, Timothy Meche.
Engelhardt’s latest order prompted Bernstein and the Civil Rights Division to back away from the case three weeks ago, easing the way for the plea deal.
Meche said the gist of that order was to find out what Perez and Austin did after Bernstein came forward. “That’s what they were scared of, and that’s why we got our deal,” Meche said.
Meche, who described the senior administration officials as “complicit” in hiding Dobinski’s identity, said he has prepared a motion to unseal the affidavits and other court records that have remained secret in the Danziger prosecution.
“It’s not over for them,” Meche said.