Wednesday, July 18, 2018
Disbarment has been recommended for a former Assistant United States Attorney by the Louisiana Attorney Disciplinary Board
RESPONDENT AS A COMMENTER ON NOLA.COM
Beginning in or around November 2007 through on or about March 14, 2012, Respondent was a frequent poster of comments on a variety of subjects and topics found in articles located on NOLA.com. Many of Respondent’s posted comments included comments on cases to which he and/or his colleagues at the United States Attorney’s Office for the Eastern District of Louisiana were assigned to prosecute, and on occasion included negative comments targeting both State and Federal judges. Respondent has acknowledged using at least the following online identities:
• Dramatis Personae
• Henry L. Menken 1951
• Fed up
Notable among the charges
In the days following Hurricane Katrina, New Orleans Police Department officers shot several individuals crossing the Danziger Bridge. Two were killed while four others were injured. As none of the citizens were armed, officers in the NOPD engaged in an alleged cover-up. In 2010 several officers pled guilty to federal crimes associated with the matter and in July of 2010, six officers were indicted for their role in the shooting and/or the cover-up. United States District Court Judge Kurt Engelhardt presided over the trial which commenced June 23, 2011 and ended August 5, 2011 when the jury returned guilty verdicts against all defendants. While the Respondent was not part of the prosecution team, he nevertheless posted comments on NOLA.com prior to and during the trial, including as the jury was deliberating.
The board on the misconduct
The actual harm and potential for harm caused by Respondent’s misconduct is significant. First, Respondent’s misconduct was a significant factor that led to the granting of a new trial in the Danziger Bridge case. Respondent argues that his conduct was only one of many reasons why Judge Engelhardt granted the defendants’ motion for new trial. While it is true that the granting of a new trial was not solely because of Respondent’s online commenting, a fair reading of Judge Engelhardt’s order demonstrates that Respondent’s misconduct was a significant factor in his decision. See ODC Exhibit 7 (Judge Engelhardt’s 9/17/13 order granting a new trial; pp. 50-55 and 65-86 are related to Respondent’s online commenting); see also ODC Exhibit 5 (Judge Engelhardt’s 11/26/12 order directing, among other things, that Respondent’s conduct be reported to ODC). The Danziger Bridge trial was a lengthy, complex, and widely publicized matter to which several attorneys, court staff, jurors, and others contributed a significant amount of time and effort. Respondent’s conduct was a causative factor in this monumental undertaking starting over. This constitutes significant harm to his client, the public, and the legal system.
Second, once discovered, Respondent’s online commenting received significant media attention. See ODC Exhibit 21 (new articles regarding Respondent’s conduct). This harmed the perception of the profession.
Third, Respondent’s conduct tarnished the reputation of the United States Attorney’s Office for the Eastern District of Louisiana, causing a significant burden on that office. In addition to the burden of the negative media attention, the office was the subject of an investigation by the Department of Justice. Transcript (11/7/17), pp. 187-188 (testimony of former USA James Letten). Mr. Letten testified that Respondent’s conduct and that of former AUSA Jan Mann contributed to his retirement. Transcript (11/7/17), pp. 191-192. Former USA Kenneth Polite, who succeed Mr. Letten, testified that a large portion of his tenure as US Attorney (three and a half years) was spent dealing with the aftermath of the scandal caused by the online commenting of Respondent and Ms. Mann. This constitutes significant harm to a public agency. Additionally, given the publicity that Respondent’s misconduct received, it diminished the public’s faith in the legal system.
Fourth, once it was revealed, Respondent’s online commenting prompted the recusal of the USA’s Office for the Eastern District from certain matters. See ODC Exhibit 13, Bates 298. This undoubtedly caused delay to several proceedings.
Fifth, Respondent’s online comments regarding the “River Birch” investigations and prosecutions caused financial harm to Mr. Heebe. The online comments caused enough concern for Mr. Heebe’s attorneys that they went through the expense of hiring a linguistics expert to analyze the comments and to file pre-suit discovery. Transcript (11/7/17), p. 118-121, 152.
Finally, while the record does not demonstrate actual harm to the prosecutions of Mose Jefferson, Betty Jefferson, and Renee Gill-Pratt, Respondent’s online comments had the potential to cause significant harm in those prosecutions.
The board rejected asserted PTSD mitigation and noted that there are no directly comparable Louisiana cases.
A dissent would impose lesser discipline
I do not see that Respondent "misused [his] position" as an Assistant United States Attorney to "obtain a significant benefit or advantage for himself." Respondent did not use the power of his office in making his anonymous on-line statements. The benefit or advantage gained personally, if any, could not be considered significant. The Hearing Committee's recommendation of suspension was appropriate.
...While Respondent's misconduct may not warrant disbarment, it certainly warrants a lengthy suspension, as recommended by the Hearing Committee (two years) and the Office of Disciplinary Counsel (three years). I would vote to recommend such suspension, but cannot agree with the majority's recommendation of disbarment.
The Advocate reported on his 2012 resignation. (Mike Frisch)