Though his ongoing efforts to prove that additional federal authorities were posting disparaging anonymous comments about indicted former city official Stacey Jackson have so far proven fruitless, lawyer Eddie Castaing argued Thursday that the online behavior of the lone prosecutor who has been caught doing just that was so egregious that the charges against Jackson should be thrown out.
Nonsense, said Assistant U.S. Attorney Fred Harper, who portrayed Castaing’s full-throated denunciation of the U.S. Attorney’s Office as a strategy that was long on emotion and speculation, but bereft of legal merit or precedent.
U.S. District Judge Mary Ann Vial Lemmon, who is presiding over Jackson’s corruption case, made no ruling Thursday, taking the matter under advisement after roughly an hour of argument.
At issue in the case are 10 comments left by former federal prosecutor Sal Perricone, using an array of aliases, under stories about Jackson posted at nola.com. They include one racially inflammatory rant, written in a crude attempt at black dialect, that references former Mayor Ray Nagin’s “chocolate city” speech and says: “It’s our turn to steal. We got the power. You can’t do anything to us.” It then concludes: “God Bless the US Attorney’s office!!!!!!!”
Jackson is black, and Castaing said that post and other racially tinged Perricone rants were evidence enough of prejudice on the part of the U.S. Attorney’s Office to merit the dismissal of the charges against Jackson. “She is a victim, a complete victim,” Castaing said. Quashing her indictment, he added, would serve as “deterrence to stop this type of prejudice.”
Jackson is the latest in a parade of federal defendants to argue that pseudonymous comments by federal prosecutors on nola.com articles denied them due process. The tactic has seldom worked, but it has had at least one spectacular success, when a judge last year overturned the landmark civil rights verdicts against five police officers in the Danziger Bridge shootings, largely on the basis of the commenting scandal.
Jackson is scheduled to stand trial July 21 on charges that she steered contracts from the quasi-city agency New Orleans Affordable Homeownership to favored contractors who paid her kickbacks in return and often didn’t perform the work they were paid to complete.
A total of six grand juries meeting over the course of nearly five years heard evidence against her, finally handing up an indictment in June 2013. Castaing argued that Perricone’s remarks not only constituted evidence of a racial animus on the part of the U.S. Attorney’s Office but also sought to tilt the balance of public opinion — and grand jurors’ opinions — against Jackson.
“Did he do this for fun?” Castaing asked of Perricone, who has admitted using at least four aliases to post thousands of comments at nola.com, many about targets of his former office. “Of course not. Well, maybe it’s how he got his kicks. But obviously, he did it to seek an advantage for the government.”
In rebuttal, Harper said that Perricone never had any involvement in the Jackson case and that his antics were irrelevant.
“Sal Perricone had absolutely nothing to do with this case,” Harper said. “People keep talking about him like he was some senior member of the U.S. Attorney’s Office, overseeing all activity in the office. Not so. He didn’t supervise my actions at any time.”
Perricone, who resigned shortly after being unmasked in early 2012, “is removed from this case,” Harper said. “He is removed from this office. He is gone. He had nothing to do with this. The offender’s fingerprints are not on this file.”
Castaing has sought to show that Perricone didn’t act alone and that three other commenters who posted at nola.com also may have been federal officials, using the handles “jammer1954,” “aircheck” and “kefir.” A magistrate judge approved subpoenas to nola.com for information about the first two. Since then, that judge, Joseph Wilkinson, has determined that “jammer1954” was not a federal official. The identities of the other two are still unknown.
Even if those two turned out to be feds, Harper argued, it wouldn’t make any difference.
“There’s not one piece of evidence that this indictment was returned by a grand jury whose will had been overborne to return an indictment on Stacey Jackson,” he said. “If Sal Perricone had presented this indictment, if he had interviewed the witnesses, I’d tell this court right away: ‘There’s a solution. Remove Sal Perricone, but Jackson doesn’t walk free.’
“We punish the offender by removing the offender and taking other administrative or appropriate action. But we do not throw the baby out with the bath water.”
Follow Gordon Russell on Twitter @gordonrussell1.