'Grotesque' DOJ Misconduct

COMMENTARY Crime and Justice

'Grotesque' DOJ Misconduct

Oct 3, 2013 7 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

In a shocking case of “grotesque” misconduct by federal prosecutors, a federal judge in Louisiana has ordered a new trial for five New Orleans police officers convicted for a shooting on the Danziger Bridge on September 4, 2005 — in the aftermath of Hurricane Katrina — and for a subsequent cover-up. This is another black eye for the Holder Justice Department that the media have barely covered.

Participating in the misconduct that the judge said had created an “online 21st-century carnival atmosphere” was Karla Dobinski, a lawyer in the Criminal Section of the Civil Rights Division of the Justice Department and the former deputy chief of the section. The reversal of the convictions is what Judge Kurt Engelhardt calls a “bitter pill” for Hurricane Katrina survivors, but his investigation of the matter provides an intensive inside look at the unprofessionalism of some of the lawyers at the Holder Justice Department, and also at the department’s attempts to obscure its misdeeds.

Last December, I reported on what Judge Engelhardt called the “skulduggery” and “perfidy” of DOJ prosecutors in a scathing order issued on November 26, 2012. At the time, the lawyers for the defendants had filed a motion for a new trial. They claimed that the prosecutors had leaked secret grand-jury proceedings and engaged in a public-relations campaign to inflame public opinion and sway the jury through anonymous postings on nola.com, the website run by the Times-Picayune.

It turned out the defendants’ lawyers were correct. In his November order, the judge detailed his findings that two senior prosecutors in the office of the U.S. attorney in New Orleans were responsible for many of the anonymous postings. These writings “mocked the defense, attacked the defendants and their attorneys, were approbatory of the United States Department of Justice, declared the defendants obviously guilty, and discussed the jury’s deliberations.”

As a result of the judge’s findings, those two senior prosecutors, Assistant U.S. Attorney Salvador Perricone and First Assistant U.S. Attorney Jan Mann, the chief assistant to U.S. Attorney Jim Letten, resigned. Letten himself resigned two weeks after the November order was issued, although he was not accused of making any of the postings himself.

Incredibly, Judge Engelhardt’s latest order, issued last month, indicates that Letten may have had knowledge of Mann’s blogging much earlier than first reported but didn’t inform the judge about it. Mann claims that she told Letten prior to March 2012 that she was also blogging anonymously, but tried “to downplay it.” This was six months before Judge Engelhardt’s November order. Yet Letten made no effort to inform the judge, even though, according to the judge’s opinion, Mann believes that Letten “reported [her blogging conduct] up to other supervisors at DOJ.”

When he issued his November 2012 order, Judge Engelhardt reserved his decision on the motion for a new trial and asked DOJ to do a further, intensive investigation to find out whether anyone else had been involved in these anonymous postings and illegal leaks in addition to the two lawyers who had resigned. The judge suggested that Attorney General Holder “seriously consider appointment of an independent counsel,” a suggestion that Holder “chose to disregard.”

Trying to figure out what the prosecutors had done sent the court “on a legal odyssey unlike any other.” But that legal odyssey led the judge on September 17 to grant a new trial to the New Orleans police officers. It is the first time, according to Judge Engelhardt, that federal “prosecutors acting with anonymity used social media to circumvent ethical obligations, professional responsibilities, and even to commit violations of the Code of Federal Regulations.”

The 129-page order, which details the misbehavior of the Louisiana DOJ lawyers and the Civil Rights Division’s Dobinski, is appalling reading. And it isn’t just that Dobinski was a high-level Justice Department lawyer who was posting anonymous blogs about the trial. She also encouraged other anonymous bloggers, who “repeatedly posted vigorous pro-prosecution statements strongly condemning the defendants, their witnesses, and their entire defense.”

To make matters worse, Dobinski was the supervising “taint” attorney assigned to the New Orleans case. When the Justice Department prosecutes a police officer, it has to be very careful to not use evidence that is protected from disclosure, such as compelled testimony. Under a 1967 Supreme Court decision (Garrity v. New Jersey), prosecutors cannot use the testimony of a police officer who has been forced to testify under threat of termination against that officer in a subsequent prosecution.

A “taint” lawyer is charged with making sure that the other Justice Department lawyers prosecuting the case do not use such privileged information or evidence. In other words, Dobinski was there in the Louisiana case to ensure that the constitutional rights of the defendants were protected. Her duties “expressly excluded assisting the prosecution’s investigation or trial strategy.” Yet, according to the judge, “before the jury even got the case for decision, she personally fanned the flames of those burning to see him [Kenneth Bowen] convicted.”

Dobinski was in essence accused by the court of lying about her anonymous blogging, too. According to Judge Engelhardt, her claim that she was just seeking “information” about the case “simply does not stand up to scrutiny.” The judge said it was “difficult to accept the story that an experienced trial attorney . . . charged with ensuring ‘that the officers’ rights . . . are protected,’ would embark upon such a wanton reckless course of action.”

The defense attorneys claimed Dobinski had made many errors in not preventing the prosecution from getting evidence it was barred from receiving. Without deciding whether they were correct, the judge said that the “gravely poor judgment” Dobinski had exhibited called “into question the careful and meticulous effort” she claimed to have exerted to protect the defendants.

The fact that Dobinski remains employed at the Department of Justice despite her unethical conduct is deplorable. It’s also an extraordinarily sad comment on the behavior that the Holder Justice Department seems to find acceptable in its prosecutors. The DOJ recently said that the matter is now in the hands of its Office of Professional Responsibility (OPR), although it has known about Dobinski’s misbehavior since at least March. I have written before about bias at the OPR, which is supposed to investigate unethical conduct by DOJ lawyers.

Judge Engelhardt talks about the OPR’s obvious conflict of interest in investigating “members of the DOJ wherein the validity of a DOJ conviction may be at risk.” But in this case, the OPR, which was requested by the judge to investigate the anonymous postings, “initially did not ask seemingly the obvious question of whether any other USAO [U.S. attorney’s office] personnel commented online,” according to Judge Engelhardt. According to Mann, Letten and DOJ in Washington (and specifically the OPR) didn’t want to ask that question because they were afraid of the answer they would get.

Judge Engelhardt obviously believes that the DOJ attempted to hide the identity of Dobinski as the third anonymous blogger. When John Horn — a special attorney from the Atlanta U.S. attorney’s office who was assigned to conduct an internal investigation into the matter — filed a supplemental report in March, the judge said the report “still conspicuously did not name the Civil Rights Division employee” who was anonymously blogging, “an omission the Court found truly odd.” It took the judge “two rounds of response questioning [of the DOJ] to finally obtain the important true identity.” Trying to get internal information out of the DOJ was like “slowly peeling layers of an onion.”

Judge Engelhardt seems to believe the Justice Department dragged its feet in conducting this investigation because DOJ officials did not really want to find out who the leakers were. After all, the viability of their hard-fought (and possibly improperly obtained) convictions was on the line. The judge also expressed suspicion that the DOJ’s reports on its internal investigation were “edited by a supervisor so as to coyly provide less information, rather than more.” Who were the supervisors in this case? According to Horn, they were Deputy Attorney General James Cole, the number-two official at Justice, and his assistant, Principal Associate Deputy Attorney General Stuart Goldberg.

Moreover, in what the judge called a “truly disappointing and unsettling crucial development,” the DOJ was unable to “forensically recover computer data evidence from [its] internet portals for years 2010 and 2011 because it did not retain” the data. DOJ prosecutors would never accept such an excuse from a private entity if they were seeking computer records of e-mails and Internet usage “at material times to this inquiry.”

In addition to inappropriate blogging, Judge Engelhardt accuses the DOJ prosecutors, who were led by Barbara “Bobbi” Bernstein of the Civil Rights Division, of “shockingly coercive tactics” against defense witnesses. Three of those witnesses refused to appear at the trial on behalf of the defendants “under threats from DOJ that they would be prosecuted for perjury as a result of their earlier grand jury testimony.” The judge found it highly suspicious that, 26 months later, not one of these potential defense witnesses “has been charged with any crime whatsoever.”

Judge Engelhardt’s indictment of the Justice Department is devastating. He remains troubled by the fact that “much is still not known about the nature and extent of” what the government did in this prosecution. The judge had “unfortunately seen the government omit pertinent facts, conceal material information, threaten but not charge at least three witnesses the defense identified, . . . and attempt to mitigate internet conduct that any reasonably responsible prosecutor would know is forbidden.”

In fact, the judge spends ten pages of his order just going through the rules violated by DOJ personnel — rules contained in federal regulations and in the U.S. Attorneys’ Manual, the local rules of the Louisiana federal district court, and the Rules of Professional Conduct for lawyers in Louisiana. He says that the DOJ’s actions, “and initial lack of candor and credibility thereafter,” are “scar tissue that will long evidence infidelity to the principles of ethics, professionalism, and basic fairness and common sense necessary to every criminal prosecution, wherever it should occur in this country.”

Finally, Engelhardt points a finger straight at Eric Holder:

The indictment in this case was announced with much fanfare, a major press conference presided over by U.S. Attorney General Eric Holder, and widespread media attention. . . . A DOJ representative said that the indictments “are a reminder that the Constitution and the rule of law do not take a holiday — even after a hurricane.” While quite true in every respect, the Court must remind the DOJ that the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics likewise do not take a holiday — even in a high-stakes criminal prosecution, and even in the anonymity of cyberspace. . . . The Court simply cannot allow the integrity of the justice system to become a casualty in a mere prosecutorial game of qualsiasi mezzo [by any means necessary].”

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and the former counsel to the assistant attorney general for civil rights at the Justice Department.

Originally appeared in the National Review Online