The Justice Department’s ‘Grotesque’ Misconduct against New Orleans Cops
by ANDREW C. MCCARTHY
August 25, 2015
As we've previously observed, the Obama jihad to fundamentally transform America's police, spearheaded by the Justice Department's Civil Rights Division, proceeds from the premise that police departments are corrupt institutions, beset by a culture of racism and law-breaking. This week, after a federal appeals court's exposé of a breathtaking prosecutorial conspiracy to deprive indicted cops of their civil rights, and then cover it up, it is again time to ask: Which is the corrupt institution beset by a culture of racism and law-breaking - the nation's police, or the Justice Department, which presumes to tame them?
To remember how we got here: Under the stewardship of Eric Holder, and now Loretta Lynch, Justice pounces on every tragedy that Al Sharpton's shock troops mau-mau into a racial crisis. Inevitably, the racism angle melts away under the spotlight of investigation, but that does not stop DOJ. Exploiting the intimidating power of its bottomless budget - out of which the Republican-controlled Congress has not sliced a thin dime - Justice extorts municipalities with the threat of prosecutions and costly civil suits until they say "Uncle," agreeing to adopt Obama-compliant policing. (Recall that in 1997, when former terrorist Bill Ayers penned a polemic that likened the American justice system to South Africa under apartheid, then-state senator Obama blurbed it as ";a searing and timely account.")
Predictably, the result is police paralysis, a condition Heather Mac Donald diagnoses as the ";Ferguson effect." It has led to rising crime across the nation, particularly in municipalities that have signed consent decrees (i.e., that have surrendered on the Civil Rights Division's terms). The principal victims are minority communities that bear the brunt of law enforcement's retreat.
Into this setting drops an explosive ruling by the U.S. Court of appeals for the Fifth Circuit. It has upheld the reversal of civil-rights convictions against five New Orleans police officers. The court's painstaking opinion concludes that, despite the severity of the charges, the district judge properly threw out the convictions because of Justice Department corruption so shocking that "words like ‘incredible' and ‘novel' and ‘unprecedented' were no longer enough" to describe it.
The case arose a decade ago, from what the court describes as "the anarchy following Hurricane Katrina." After a report of shots being fired at New Orleans police on the Danziger Bridge, additional cops were rushed to the scene. In the chaos, police shot and killed two men who turned out to be unarmed (one, developmentally disabled). Four other civilians were wounded. All of the victims were black. Though four of the seven officers eventually charged are black or Hispanic (the other three are white), Sharpton's "National Action Network" quickly labeled the incident ";a racial tragedy.";
The Justice Department took over the case against the police after Louisiana state prosecutors botched it into a mistrial. In 2010, the U.S. Attorney's Office in New Orleans (USAO) filed a 25-count indictment alleging serious civil-rights and firearms felonies. There were also obstruction-of-justice charges, to which several officers admitted in guilty pleas.
A tense, racially charged atmosphere enveloped the case, no small thanks to self-styled community activists who sought to condemn not just the defendants but the entire New Orleans Police Department (NOPD). This modus operandi has become all too familiar: When the facts of a case debunk the libel that racism motivated police action - either because some of the cops involved are black or because the evidence proves cops were responding to aggression rather than instigating it - the Left reverts to its theory that racism is institutionally endemic. Even unwitting minority cops act on racist assumptions, we are told, because police culture is to blame.
In New Orleans, this campaign played out in the media, including widely read blogs. It turned out that a prodigious agitator was Sal Perricone, a high-ranking prosecutor in the USAO. As the appellate court recounts, even before the Justice Department filed its indictment, Perricone, using assumed names, began posting commentary on Nola.com, the website of the Times-Picayune, that "castigated the defendants and their lawyers and repeatedly chastised the NOPD as a fish ‘rotten from the head down.'";
This is serious prosecutorial malfeasance. All lawyers who are members of a court's bar have an obligation to promote the integrity of the court's proceedings - including to ensure that cases are decided by the application of law to facts proved in court, not by inflaming juries with mob passions. Prosecutors, moreover, have a higher ethical obligation to safeguard the rights of the accused - to ensure that even those who deserve to be convicted are afforded a fair trial with their lawful rights respected.
In New Orleans, Perricone's disgraceful conduct was not uncovered until after the defendants were convicted in July 2011, following a two-week trial. Naturally, they moved for a new trial, arguing that the assiduous campaign had poisoned public opinion, and thus the jury pool, against them.
Initially, Judge Kurt D. Engelhardt, who had presided over the trial and harshly sentenced the convicted officers, was skeptical of this defense claim. After all, district U.S. Attorney Jim Letten, flanked by his first assistant, Jan Mann, had assured him at a post-trial hearing of the "Gospel truth" that no one else in the USAO knew about, much less encouraged, their colleague Perricone's smear campaign. Plus, as a show of good faith, Letten assigned Ms. Mann - who was also chief of the office's criminal division, the supervisor of all prosecutions - to conduct a vigorous internal investigation designed to assuage the court's concerns.
After this probe, Mann solemnly represented to Judge Engelardt that Perricone was the sole culprit. Except it turned out he wasn't.
Mann's investigation was full of holes and screamingly obvious leads that were not followed. Judge Engelhardt became increasingly alarmed that it didn't add up. He asked more questions, and was troubled by the Justice Department's evasive responses. Finally, there came a grudging, stunning admission: Mann, too, had been in on the anti-police smear campaign. Blogging under a pseudonym, she too had posted attacks on the NOPD, ratcheting up public pressure for guilty verdicts and encouraging other bloggers to belittle the defense being offered by the cops' lawyers. It emerged that Mann's husband, Jim, another supervisory prosecutor in the USAO, was the best friend of her accomplice, Perricone.
These revelations left the judge aghast. He persisted, demanding to know how widespread the anti-cop agitation had been . . . and whether Main Justice in Washington, which typically has hands-on involvement in civil-rights prosecutions, had been complicit.
Engelhardt found he was asking the same questions multiple times, while the Justice Department's answers - when there were answers - seemed ever dodgier. Finally, one detail became so clear it could be concealed no longer: Karla Dobinski, a longtime veteran of Holder's Civil Rights Division in Main Justice, had also posted inflammatory commentary under an assumed name - or, I should say, at least one assumed name. As the Fifth Circuit relates, "Dobinski is disturbingly vague . . . about how many other people in her department were aware of her commenting and whether ‘Dipsos' was her only moniker.";
What is apparent is that revelation of Dobinski's complicity in the smear campaign was late coming, owing to the Justice Department's wagon-circling. What is appalling is that Dobinsky was involved in the case as part of a DOJ "taint team" - the prosecutors specifically assigned to protect the civil rights of the indicted defendants. And what is contemptible is the signature pattern of Obama-administration lawlessness and obstruction.
The appeals court reports that the government's internal probe "simply refused to follow up" on indications of press leaks by officials knowledgeable about the investigation. And you'll be shocked, shocked to hear that the Obama Justice Department somehow managed to "lose" data from key Internet portals for the years 2010 and 2011. The Fifth Circuit found that this purge meant Judge Engelhardt's "attempt to discover other online prosecutorial misconduct was . . . undermined.";
Despite these defiant impediments, the judge pried enough information to learn that at least one defendant had been coerced into pleading guilty, while defense witnesses had been intimidated and threatened with prosecution - inducing them to refuse to testify on behalf of the police. Furthermore, the appellate court found that sentences to which prosecutors agreed in plea deals were "shockingly disparate" from what they sought for those who went to trial - a telltale sign that the Justice Department may have abused its charging discretion to camouflage weaknesses in its case or improprieties in its methods.
In September 2013, in a scathing and meticulous 129-page ruling, Judge Engelhardt acknowledged that the remedy of vacating convictions over prosecutorial misconduct is extraordinary and rarely invoked. But it was a small price to pay in this case, he opined, to safeguard the criminal-justice system from Justice Department conduct he described variously as "bizarre," "appalling" and "grotesque." Now, after studying this shameful episode for nearly two years, the Fifth Circuit has concurred.
So what has become of the prosecutors at the center of this sordid affair - at least the few who have been identified? Perricone resigned shortly after he was found out. Letten, having indignantly told the court and the public that the sole culprit was Perricone, later stepped down. The Fifth Circuit tartly observes that "both Jan Mann and her husband Jim retired with their panoply of federal benefits intact" - and, evidently, with no prospect of being prosecuted for obstruction of justice.
And what of "Dipsos" herself, Karla Dobinski, the Justice Department lawyer at the center of the corrupt scheme to gut the civil rights of police officers? She is still merrily on the job in the Civil Rights Division, having received nothing but a lip-service reprimand. She perseveres in the fundamental transformation mission, schooling America's cops in the Obama administration's rather different practice of "law enforcement."