The private investigator caught filming Jefferson Parish Sheriff Newell Normand at his regular coffee gathering last week told deputies that his Dallas firm sent him “on an assignment to conduct surveillance on a subject with a white beard,” according to an arrest report released Tuesday.
The investigator, Robert J. Frenzel, was booked on one count of criminal mischief, a misdemeanor, after fleeing the Royal Blend cafe in Old Metairie and running through a number of private properties in an effort to escape capture on the eve of Saturday’s statewide election.
His firm had been hired to conduct opposition research on behalf of U.S. Sen. David Vitter’s gubernatorial campaign.
The “white beard” reference appeared to confirm that Frenzel had been sent to the cafe to record John Cummings, a prominent lawyer and real estate investor who has supported state Rep. John Bel Edwards, Vitter’s Democratic opponent.
The Vitter camp released a statement last week suggesting as much, seeking to clarify that Normand had not been the target of the surveillance.
Cummings said Tuesday he plans to ask the FBI to investigate the incident.
“I’m as hard to intimidate as a rhinoceros on the charge,” he said.
The four-page arrest report in the case hews closely to the account Normand provided Friday evening, hours after Frenzel was taken into custody.
It says the sheriff first noticed Frenzel when Normand leaned in to say something to Cummings.
“It was at this time the sheriff noticed that the subject became nervous and began to fumble with his phone, which allowed the sheriff to physically observe the display of the phone with a recording application activated,” the report says. “The sheriff challenged the subject as to why he was filming him.”
After he was found hiding behind an air-conditioning unit a short time later in the 100 block of Stella Street, the report says, Frenzel was handcuffed and initially “refused to comment as to his identity and his presence at the coffee shop.” Deputies learned “during a search” that he was a private investigator.
“He finally confirmed that he was on an assignment to conduct surveillance on a subject with a white beard,” the report says. “Due to the confidentiality of his assignment, he was not questioned as to the name of the person he was following; however, he did advise that it was not Sheriff Normand that he was assigned to follow.”
Frenzel invoked his right to see an attorney after being questioned about fleeing the cafe “and entering the property of several residences in order to make his escape,” the report says.
On Tuesday, a judge granted a motion allowing Frenzel to return to Texas pending a Jan. 25 court date.
While Vitter has sought to play down the arrest, dismissing it as a “bizarre and silly incident,” he has yet to explain why his campaign paid Frenzel’s firm, J.W. Bearden & Associates, of Texas, to record Cummings.
Cummings, 78, is well-known for the fortune he made in class-action settlements as a trial lawyer and, more recently, for his renovation of the Whitney Plantation in Wallace into a slavery museum.
In a telephone interview Tuesday, Cummings said he remained unconvinced he was the intended target of the surveillance. He said he thinks it’s more likely that Vitter had hired Frenzel to tail Normand, hoping he would say something Vitter could use to undermine an endorsement from the Louisiana Sheriffs’ Association that eventually went to Edwards.
Cummings’ beard is one of his most distinguishing features, but he seemed unimpressed to learn it was mentioned in a Jefferson Parish Sheriff’s Office report.
“The stupid son of a bitch was supposed to find Santa Claus in the cafe; that’s the guy with the white beard,” Cummings said. “But you can tell David Vitter that he doesn’t get anything for Christmas. He’s been naughty.”
Cummings said he has had no beef with Vitter, noting the two attend the same church, St. Francis Xavier. “He’s a loner,” he said. “There’s something very, very strange about the man.”
He said he plans to call Vitter to ask if the senator wishes to accompany him in reporting the incident to federal authorities.
For his part, Normand said Monday that deputies are still considering booking Frenzel on a felony count of violating the state’s wiretapping law. Legal experts have said that charge is unlikely to stick because the sheriff had no reasonable expectation of privacy while talking in the cafe.
“If you’ve just got your recording running and are overhearing conversations that can be heard by all those around you, that’s not going to be a crime,” said Dane Ciolino, a Loyola University law professor.
Marjorie Esman, executive director of the American Civil Liberties Union of Louisiana, said Normand would be overreaching to book Frenzel on the wiretapping count. As an elected official speaking in a public place, Normand should “expect that people are going to be interested in what he says,” she said.
“The First Amendment gives anybody the right to film anything that they see,” Esman said. The state’s wiretapping law, she said, “is intended to prevent people from bugging somebody else’s telephone or spying in a way that they can’t be perceived.”
At least some case law related to Louisiana’s wiretapping law has focused on the expectation of privacy when it comes to recording in-person conversations.
In 2001, prosecutors charged Robert Smith, an investigator with the Orleans Indigent Defender Program, with unlawfully taping a conversation he overheard in the now-shuttered House of Detention between a prosecutor and an inmate expected to testify in a murder trial.
Smith provided the recording to a defense attorney in an effort to impeach the inmate’s testimony, claiming the inmate had conspired with the prosecutor, Roger Jordan, to commit perjury about a shooting he had not witnessed. Not only was the recording not admitted into evidence at the murder trial, but prosecutors decided to charge both Smith and the defense attorney who had received the tape under the wiretapping law.
The charges were thrown out more than a year later by an Orleans Parish Criminal District Court judge — a dismissal upheld by the state 4th Circuit Court of Appeal.
As in the case last week at the Royal Blend, the parties in the jailhouse conversation had not consented to being recorded. But even within the setting of a closed room at the jail, the inmate and prosecutor did not have a reasonable expectation of privacy, the appellate court said.
“The issue under the statute,” the court held, “is whether the hearer was where he had a right to be and (could) hear unaided by a mechanical device, and whether the recording device could record more than the hearer could hear unaided.”
Follow Jim Mustian on Twitter, @JimMustian.