Friday, February 01, 2013

Me and my big, anonymous mouth. (Actually not me-me; we’re talking those wacked Federal prosecutors from New Orleans.)

I continue to be amazed when I hear about presumably intelligent people who get themselves into trouble for doing really, really, really stupid things.

You would think that, by now, most reasonably sentient adults would have figured out that what happens online stays online and that, unlike in Vegas, that’s not necessarily a good thing.  And that even when you think you’re operating anonymously, hiding out in the virtual equivalent of Harry Potter’s invisibility cloak, if you say something outrageous enough, and piss the wrong person off, you may well be found out.

Which is what happened last year to a couple of assistant New Orleans federal prosecutors who got tripped up commenting on cases that their office was involved in.

Sal Perricone apparently thought he was being cagey calling himself HenryL.Mencken1951 to go on a bash-fest on prominent “local and national figures, including federal judges,” and one Fred Heebe, who was the target of a criminal federal probe into Heebe’s landfill shenanigans, an effort that Perricone was helping lead.

Heebe didn’t like the rash of comments – nearly 600 – that HenryL.Mencken1951 was posting on articles on the landfill case, so he hired a former FBI profiler James Fitzgerald – the same guy who helped tie the Unabomber rantings to Ted Kaczynski  - to do some “forensic linguistics’ magic on all that insider-ish, Mencken-esque commentary.

Fitzgerald noted eye-popping similarities between the language used by "Mencken1951" and a legal brief filed by Perricone and two other prosecutors in a matter related to the River Birch investigation. Among other things, he said both the author of the legal brief and "Mencken1951" were fans of alliteration and rarely used, antiquated words, including "dubiety" and "redoubt."

…Many of Perricone's online comments involve the U.S. attorney's office and various current and past targets of the office. His "interest in and level of knowledge about an ongoing (federal) investigation of River Birch are striking and beyond what could be expected of even the most diligent Times-Picayune reader," Heebe's petition [to allow Heebe’s attorney to depose Perricone] noted. (Source: NOLA – Times Picayune.)

Dubiety and redoubt, eh? Well, I may not be Henry L. Mencken, but I’ll be a Scopes Monkey Trial uncle.

(Among other stupid things, Perricone trash-talked the judge who was presiding over the case. I suspect that she was no more amused than Fred Heebe was.)

Heebe subsequently filed a civil defamation claim, and Perricone confessed and resigned. But not before posting a swan comment:

"I'm here. Watching our rights erode," he wrote.

And just what right might that be, Mr. Perricone?

Yes, we all have rights to our opinions, and to make anonymous online comments using too clever by half pseudonyms.

But surely a  prosecutor closely involved in a case needs to keep his or her big mouth shut, no?

The American Bar Association’s code of conduct proscribes lawyers participating in litigation from making an:

“…extrajudicial statement that the lawyer knows ... will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

And the Justice Department bars federal prosecutors from taking part in activities that:

…would "create an appearance that the employee's official duties were performed in a biased or less than impartial manner."

Surely, Sal Perricone – who, let me take a wild-assed-guess here, was born in 1951 – is old enough to know better.

Maybe he should have saved it for the book after all his juries were in, all his cases closed. Or kept it to pillow-talk.

Did he really think that no one would figure out it was him?

Have you no sense of dubiety, sir? At long last, have you left no sense of dubiety?

All this came down last March but, since I don’t regularly read the Times-Picayune (sorry), I didn’t come across it until I saw an article a week or so ago about it in The Economist. They picked up on an aftermath of the Perricone comment-fest: the resignation of Jim Letten, Perricone’s boss. Letten was not doing any unethical commenting, but the Perricone scandal (which also ended up involving another top attorney in the office, who was also mouthing off online) continued to swirl, and Letten felt he had to resign. Great (potential) damage has been done, as a number of those prosecuted by Letten’s office over the years are claiming that Perricone’s commenting could have had an impact on public opinion and “poison[ed] the jury pool.”

The episode is a cautionary tale about the perils of the internet. Although many people think the anonymity that veils their online rants is absolute, plenty of jurisprudence argues otherwise. If a target of anonymous attacks can make a credible claim of defamation, he or she has some legal right to find out who is doing the defaming—the First Amendment notwithstanding. (Source: The Economist)

Meanwhile, a special prosecutor’s now in on the act, and looking into the possibility that other anonymous commenters were also unethically going at it.

These aren’t a bunch of kids tweeting dumb and regrettable things, or posting dumb and regrettable things on their FB walls. These are well-educated, knowledgeable professionals who, one would think, knew about the code of conduct they were supposed to be following.

No, Mr. Perricone, in this case I don’t think  you’re “watching our rights erode.” I think you’re watching your wrongs – and your abundant stupidity – come to light.

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