Happy Anniversary!

Hey look, Waste Management's civil RICO suit against Fred Heebe and Jim Ward is turning 10 years old.

Both sides have lined up high-powered attorneys – Waste Management is represented by a group of lawyers from Phelps Dunbar, a white-shoe New Orleans law firm, as well as the Washington firm Baker Botts, while Heebe and Ward’s legal team includes, among others, Kyle Schonekas and Billy Gibbens, the lawyers that blew up the federal investigation and the U.S. Attorney’s Office in 2013.

Given that legal horsepower, it’s perhaps not surprising that the litigation is about to celebrate its 10-year anniversary. There are more than 600 items in the online court docket, including dozens of complex motions, and the plaintiffs want to introduce more than 400 exhibits, a move Heebe and Ward are opposing.

Do you think all those big money lawyers are "celebrating" this cash cow? I think they are celebrating.  Ray Nagin, whose bribery conviction, obviously, figures into this case, once said he decided to go into politics because it was, "the dominant industry." And now everyone involved in this case has a decade's worth of stimulus checks to prove it. 

But that isn't the only interesting principle of politics this group of "high-powered attorneys" has proven in the course of their work.  They've also demonstrated that amassing great fortune and influence through corrupt political dealings and environmental endangerment, is nowhere near as serious a crime as commenting on websites. 

Heebe, meanwhile, was represented by some of the city’s most aggressive defense lawyers, who pushed back as federal investigators dug into how he secured a near-monopoly on the local landfill business. They didn’t wait for the feds to strike. Instead, they went on offense, revealing that two top prosecutors had routinely posted comments — using aliases — on news stories about cases the U.S. Attorney’s Office was handling.

The scandal turned the office upside down, ending the long reign of popular U.S. Attorney Jim Letten. More remarkably, it won Heebe and his stepfather, Jim Ward, his partner in the River Birch landfill in Waggaman, the equivalent of a pre-emptive pardon. The Department of Justice, which rarely even confirms the existence of investigations, announced that its probe of Heebe and Ward was over, and that neither would be charged.

This astonishing precedent was further cemented when we learned that commenting on websites is, in fact, so egregious an offense as to outweigh actual murders committed by police.  

“Legacyusa” turned out to be one of the top federal prosecutors in New Orleans. His post was just one of many anonymous barbs that led a federal judge Tuesday to throw out the convictions of those ex-cops in the Danziger Bridge shootings, which left two people dead and four seriously wounded.

In a 129-page ruling, District Judge Kurt D. Engelhardt cited long list of “egregious and inflammatory” comments by at least three Justice Department officials using a variety of online identities. Those comments fueled a “21st century carnival atmosphere” that tainted the 2011 trial and will require a new one, Engelhardt wrote.

Engelhardt actually threw out the River Birch case at one point too, even though that ruling didn't stick.  Wonder how that happened. 

Engelhardt had connections to other players in the case. When Heebe and Ward pushed to unmask the pseudonymous commenters in the U.S. Attorney’s Office, Engelhardt joined the crusade, eventually directing the Department of Justice to appoint a special prosecutor to probe the commenting scandal.

Engelhardt owed his appointment to the federal bench to then-U.S. Sen. David Vitter; he had served as Vitter’s campaign treasurer. Vitter was also an ally of Heebe and Ward. He was among the politicians who questioned decisions by the state DEQ to hastily open landfills around the region, moves that also drew scorn from environmentalists.

The "dominant industry" works in fascinating ways, doesn't it.  I mean.. look what happened even during the time it took me to type this up. 

This time, there was no 11th-hour surprise. But once again, Fred Heebe and Jim Ward, owners of the River Birch landfill in Waggaman, found a way to dodge a public accounting of what their detractors have long portrayed as an improper influence campaign meant to keep potential rivals at bay -- and as much local garbage going into their dump as possible.

On the eve of trial of a civil racketeering lawsuit that was filed a decade ago, the two men settled with their accuser, Waste Management, one of the largest garbage companies in North America. Terms of the settlement, noted in the case's lengthy docket on Friday by U.S. District Judge Carl Barbier, were not disclosed. The case was set for trial Monday.

Well, happy anniversary, in any case. To quote Nagin once more, thanks for "keeping the brand out there."

Forget about it, it's Trash Town

Very good to see the trash men who rule us are finally able to put aside their differences and allow their system of rote bribery to continue apace.

Nearly five years after federal authorities abruptly abandoned a massive corruption investigation targeting local landfill owner Fred Heebe, a civil case with similar contours — this one brought by a competitor in the sometimes bare-knuckles trash-disposal business — was settled on the eve of what was expected to be a two-week trial starting Monday in federal court.

Given that the feds never brought charges, the trial over Waste Management’s civil racketeering claim against Heebe and his stepfather, Jim Ward, looked likely to be the closest thing to a public airing of the allegations that investigators were exploring before they gave up the chase.

Now those issues may never be aired. The terms of the 11th-hour settlement, reached Thursday, are confidential, according to court records.

I don't keep up with such things the way some people do but I do still wonder if Heebe and Ward have ever thanked Sal Perricone for his service. These days we're never quite sure whether or not the President is going to start a war by posting a fart noise on Twitter. But if one guy saying racist things in NOLA.com comments could derail a whole federal racketeering investigation, then we may only be beginning to scratch the surface of what is possible.

This article laments the things we may now never learn about River Birch. But another benefit of living in the Age of Trump is that it probably doesn't matter what comes to light or doesn't now. Nobody is ever going to be held accountable.  Besides, what more brazen admission than this are we hoping for?

The now-aborted trial appeared likely to provide a window into the broader allegation that River Birch built a web of influence by illegally subverting Louisiana campaign laws.

A summary of the two sides’ cases drawn up by Engelhardt noted that Ward, in his deposition, “incredibly admitted that River Birch made campaign contributions to Broussard through various shell companies in order to give more than the legal maximum of $5,000 to Broussard and ‘to make it not as obvious to anybody that’s looking into the records as to what is going on.’ ”

Most of the shell companies were in the name of Dominick Fazzio, River Birch’s chief financial officer, who had a low public profile until he was indicted amid the federal probe. The feds later dropped their case against Fazzio, who had been expected to testify at the trial.

And remember this is what Engelhardt will write even as he's the person responsible for keeping most of this bottled up through his rulings in this civil case and through his role in reacting to Perricone's impact on the Danziger trial. As we sink further and further in to the kleptocratic hellworld, Engelhardt is nothing if not an appropriate judge for such times. Looks like he's also being recognized for his service.

Engelhardt, who was nominated to the federal bench by President George W. Bush, may be in his final weeks in his current post. President Donald Trump has nominated him for a spot on the 5th U.S. Circuit Court of Appeals, located next door to the federal district courthouse.

It's Chinatown

Fred Heebe runs and owns all of it. Ray Nagin gets a day out of jail to go testify and all but, you can kind of see where things are headed.

In a sense, the bare-knuckled lawsuit brought by trash conglomerate Waste Management represents the closest thing to a public airing of the corruption claims against Heebe and Jim Ward, his father-in-law, that New Orleanians are ever likely to see.

That’s because the criminal case the federal government was building against the two men cratered amid evidence, unearthed by Heebe’s legal team, of major misconduct by top officials in the U.S. Attorney’s Office.

And the case is resurfacing at precisely the same moment that the leader of Heebe’s legal team, defense lawyer Kyle Schonekas, is expected to be nominated by President Donald Trump to run the office whose leadership he toppled five years ago.

In another odd convergence, the jurist presiding over Waste Management’s civil racketeering case, U.S. District Judge Kurt Engelhardt, is the same judge that eagerly embraced the evidence of prosecutorial misconduct that Heebe brought forth in 2012, and embarked on his own crusade to measure its extent.

By the time the case gets to the courtroom, in late August, it's possible that Engelhardt, the chief judge in the district court, will have moved on as well: He is said to be a leading contender for an open seat on the New Orleans-based U.S. 5th Circuit Court of Appeal. Such a nomination would also come from Trump, with input from Louisiana's senators.

Yeah so congrats to everybody on their promotions.

When does the book come out?

This FBI agent's allegations about corruption and cronyism permeating the Louisiana criminal justice system from top to bottom are worth taking seriously.  His suggested remedy, on the other hand,  which would involve agents or cops going over the heads of prosecutors to facilitate indictments, probably isn't.  In any case, one does wonder why he would consciously take this step given what he understands about the consequences.

"This letter will anger many powerful people, prosecutors, former prosecutors, defense attorneys, politicians and FBI management," Zummer wrote. "If I am wrong, then urge the Justice Department to prove it. Open up the files and let the American people see for themselves."

"I love fighting corruption in Louisiana," he added. "This is where I belong, but this letter most likely means my time is over here and possibly in the FBI."

Zummer portrayed the letter as a last resort, saying the FBI had gone to extraordinary lengths to silence him.  

"Although this is not the normal procedure to handle this sort of legal issue, the FBI's conduct has left me no choice," the agent wrote. "The victims, witnesses and investigative team should know, and they deserve to have the public know, why this plea agreement (with Morel) was made."

Unless he's got a book deal in the works.  That's got to be it, right?

Barber shop talk

Not sure why it's any worse that one policeman in Missouri gets to walk because he was afraid of  "magic negroes" than it was that a whole conspiracy of of police got to walk because NOLA.com allows anonymous comments but that did happen.

For whatever reason, though, the kids in New Orleans would prefer to go to trendy copycat protests rather than worry about what goes on in the city where they actually live.  At least today we learned that  the US Justice Department said something about it.

Justice Department attorney Elizabeth Collery wrote in the government’s brief that Perricone’s anonymity in the comments should be relevant on appeal, “as it ensured that his position as an (assistant U.S. attorney) would not cause his comments to exert an undue influence on potential jurors.” It’s “highly doubtful,” Collery contended, that any jurors “were exposed to and remembered Perricone’s postings, which were indistinguishable from the comments of others.”

“Even before the Internet age, people were exposed to chatter about high-profile criminal cases as they went about daily life,” she wrote. “Moreover, an anonymous comment on the Internet carries no more weight than the opinion of the garrulous customer in the adjacent barber’s chair, which is to say, next to none.”

The Justice Department complained that Engelhardt overreached in his attempts to get to the bottom of the online commenting, saying prosecutors eventually were relegated to serving as “the court’s investigatory adjunct” as defense attorneys sat “sidelined entirely.”

“Because (Engelhardt) attempted to act simultaneously as a neutral arbiter of defendants’ new trial motion and as an independent investigator of government misconduct, an objective observer might reasonably question (his) impartiality,” Collery wrote. “It is questionable whether a district court should ever undertake an independent investigation of federal prosecutors.”

What is the difference, exactly?

Here are a couple of commentaries from last week about the overturned Danziger verdict I thought were worth mentioning.  First, there is this from two of the jurors who sat on the case.  They sound pretty adamant that the "prosecutorial misconduct" cited by Judge Englehardt didn't have anything to do with the jury's decision to convict. 

The New Orleans Advocate tried to contact each of the 12 jurors in the Danziger case. Farlough and Robin were the only ones who agreed to be interviewed. Both said they knew nothing about any online comments — by Perricone, Mann or anyone else. They made their decision, as the judge ordered them to, based on what they heard in the courtroom.

“I think it’s a folly, all of this supposed posting of things on NOLA.com,” Robin said. “We would not have been selected as jurors if we didn’t have the integrity to follow the court’s order. We rendered the verdict that we thought was fair and proper. To now reverse that verdict seems a bit ludicrous.”

The editorial board at the Washington Post agreed this weekend.

Judge Engelhardt is right that the online comments were egregious, unjustifiable, unprofessional abuses of authority on the part of the lawyers. The two prosecutors in New Orleans left their jobs in disgrace. The Justice Department lawyer, whose role was revealed in the judge’s decision, may face disciplinary action. Conceivably, they could be disbarred.

However, his conclusion that the online postings created a “prejudicial, poisonous atmosphere” that justified throwing out the convictions is a huge stretch. By that logic, overturning the convictions might also be justified by the TV show “Treme,” which began airing on HBO 14 months before the officers’ trial and depicts the New Orleans police as corrupt, brutal and violent. It’s a safe bet that more New Orleanians have seen “Treme” than the prosecutors’ online postings.

Please don't get me started about the egregious, unjustifiable, poisonous abuse of the viewing audience that is HBO's Treme. The Post is wrong to assume that anybody watches that anymore anyway.

A better comparison, if we're talking about actions that might prejudice a jury, would be between the relatively obscure online comments and Jim Letten's penchant for grandstanding press conferences that get blasted all over the media every time he indicted somebody. If a jury can be tainted by anonymous sniping deep within the bowels of  a newspaper's online comments section, surely this bluster must have some prejudicial effect.

Strange bedfellows

About that thing we mentioned yesterday regarding everybody involved in the Heebe-Letten-Vitter-Perricone-Robinnette business being very closely tied together by their professional, political, and personal associations.  Here, via Slabbed, is what we meant by "personal."

We now know Senator David “Diaper Dave” Vitter was ensnared along with Billy Nungesser and that both guys like their sex kinky.  Vitter of course was the guy who got Judge Kurt Engelhardt on the bench. Engelhardt in a prior life was Vitter’s campaign manager and somewhere along the line it came out the Sinator used his campaign money to indulge his sexual proclivities and that it was Engelhardt that likely wrote the checks.

Engelhardt is the judge now trying to use Perricone, et al as an excuse to  have the Danziger verdict tossed out.

Meanwhile, keeping with the title theme, check out all the money people lining up behind Dana Kaplan.

Notable Kaplan contributions in the most recent reports: $4,000 from developer Sean Cummings ($1,500 before the Nov. 6 primary and $2,500 after); $2,500 from Mayor Mitch Landrieu's election campaign; $2,000 from political strategist and commentator James Carville; $1,000 from Louisiana House Speaker Pro Tem Walt Leger's campaign; and $500 from banker/developer Joseph C. Canizaro.

Update: And now here's more from Moseley on Letten.

Liar's Tale

Slate finds Leon Cannizzaro operating in the grand Orleans DA tradition of suppressing exculpatory evidence and cutting improper deals with witnesses.

That’s Leon Cannizzaro, who became the DA for New Orleans in 2009. Joseph Allen, who’d also testified at Tucker’s trial that he had no expectation of leniency, got a deal, too, on his perjury charge and was released. Because of the deals, Cohen asked for a new trial for Jamaal Tucker. The judge ordered Cannizzaro and the prosecutor who tried Tucker, Eusi Phillips, to appear before him to explain themselves. On the eve of his date in court, Cannizzaro agreed to toss Tucker’s murder conviction. And his office turned over to Cohen a piece of evidence the defense had never seen before: A letter from Greene to Phillips. Greene wrote that he wanted Crime Stopper reward money for testifying against Tucker and that he wanted his time cut. He said, “I know that as far as getting my time cut, you can’t make any promises before the trial, but I am entitled to the reward.”

In a letter to the editor published in the Times Picayune, Cannizzaro denied withholding evidence against Tucker or two other defendants whose lawyers have made that claim. “My office has railroaded no one,” he wrote.

As a prelude to announcing sentences for the police officers convicted in the Danziger shootings and cover-up, Judge Kurt Englehardt delivered a lecture to prosecutors on the inquisitorial practice of coercing witnesses upon which they had built much of their case.

Last week, Engelhardt filed into the record a 61-page order that hewed closely to his speech but included a few new digs, mostly in footnotes.

For example, he took aim at Assistant U.S. Attorney General Thomas Perez, head of the Justice Department's Civil Rights Division, writing that Perez "glibly responded" to some of Engelhardt's criticisms after the sentencing by saying prosecutors can't pick witnesses at a "witness store."

Engelhardt added in the footnote that the cooperating defendants were "purchased, bought and paid for" with more lenient sentences. "Mr. Perez's comment misses the point," Engelhardt concluded.

In the next footnote, he wrote that the media "frequently misquoted" a statement he made "in a materially incorrect way."

Engelhardt wrote that he actually said: "Using liars lying to convict liars is no way to pursue justice." He explained that in some instances, the quotation attributed to him in news accounts failed to include the verb "lying." (The Times-Picayune's account did not include the word "lying.") His statement, he wrote, reflected his concerns about whether government witnesses had an incentive to lie.

Note that while Engelhardt is clearly perturbed with our Inquisitors' actions, this didn't appear to mitigate the heavy sentences he imposed on the lying police officers convicted by their lying associates.

James Gill seems to think this is really all about the bind judges are put in by mandatory minimum sentence law. And he has a point but I think it is a side point. I'm more interested in the fact I've highlighted in Gill's column below.

There was no suggestion that innocent men had gotten a bum rap here, but rather the reverse. Engelhardt complains that the cops who pleaded guilty got off too lightly.

Engelhardt had no choice but to impose draconian sentences on defendants who elected to fight the charges, while higher-ranking officers testified for the government under deals that gave them derisory stretches for equally, or more, heinous offenses.

The law that produces such skewed outcomes, according to Engelhardt, is the same one that coerces guilty pleas.

The Danziger result, however deserved, just happens to fall upon the officers at the bottom of the NOPD totem poll. Meanwhile, DAs like Cannizzaro and DOJ preeners like Jim Letten habitually use their inquisitorial powers to convict liars using liars but the only occasion on which this practice elicits a dressing down from the judge comes about because the "victims" (if you can call them that) happen to be cops. Engelhardt doesn't inform us of a better way to "pursue justice" and I suspect this is because we don't actually experience much of that within the confines of the legal system we've built. We do, however, daily experience the pursuit and consequences of power which is the true determinant of our judicial winners and losers although we do like to pretend otherwise.