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The Justice Department’s Hurricane-Strength Misconduct

The lead prosecutor in the case, Barbara Bernstein, the deputy chief of the Civil Rights Division’s Criminal Section, told the judge that she knew nothing about the anonymous blogging or the leaks. Yet she tried to minimize the unprofessional and potentially criminal conduct of her colleagues by asserting to the judge “that the conduct at issue had no effect on the validity of our verdict in the Danziger case” and Jan Mann’s anonymous postings were “irrelevant.”

Perricone resigned as an Assistant United States Attorney in March of 2012. U.S. Attorney Letten announced that Mann had been relieved of her posts as first assistant U.S. attorney and chief of the Criminal Division. But Mann remains an employee of DOJ despite her misconduct, which included sitting “through the sworn testimony of Perricone knowing full well the infirmities of his assertions and untruths which he told” and submitting a report to the court that was “tendentious, unreliable and unacceptable.” As Engelhardt said, the “very appearance of any attorney, acting on behalf of the United States of America, participating in such conduct should be dealt with promptly and harshly. The integrity of our criminal justice system requires as much.” Apparently, U.S. Attorney Jim Letten does not agree, since he has not fired Mann or her husband who apparently also knew about the anonymous postings but failed to inform Letten or the court.

The judge’s condemnation of the Justice Department in the final pages of the court order is devastating. As the judge says, a “cavalier attitude toward the truth cannot be indulged at any juncture or level.” In addition to the leaks and anonymous blog posts, the judge outlines other extremely questionable tactics employed by Bernstein, her prosecution team, and FBI agents. This included “shockingly coercive tactics” employed against witnesses, such as three defense witnesses who refused to appear at trial after DOJ threatened to prosecute them for perjury as a result of earlier grand jury testimony. Yet as the court pointed out, none of the witnesses was ever charged with any crime.

This case is not over. Judge Engelhardt ordered DOJ to do a real investigation of the grand jury leaks and other problems that occurred in this case. And he stated that he was forwarding a copy of his order to the Louisiana Bar Association for disciplinary proceedings against Perricone and Mann. He refused to rule on the defendants’ requests for new trials, but only because of the “inadequacies” of DOJ’s superficial investigation of wrongdoing in the case. As he said, “prosecutorial misconduct in this case is a very near and present thing” but he did not yet have enough information to come to a final conclusion. Judge Engelhardt said that he intended to “follow the advice of Washington himself: ‘There is but one straight course, and that is to seek truth and pursue it steadily.’”

Let’s hope the inspector general at DOJ also takes the straight course and steadily seeks the truth of what happened internally at DOJ in this shameful and shocking case.