In addressing the Danziger defendants' motion for a new trial last week, U.S. District Court Judge Kurt Engelhardt demanded DOJ investigate the matter and directed his order be provided to state and federal bar commissions for possible disciplinary action against Mann and Perricone.

In his order, Engelhardt wrote that he is concerned about both Perricone and Mann's activities, saying that they both made false statements to him during the leak inquiry. Engelhardt recommended that an independent counsel be appointed to investigate the pair's online behavior.

"First of all, having the DOJ investigate itself will likely only yield a delayed yet unconvincing result in which no confidence can rest," Engelhardt wrote.

The 50 page ruling is here.

As I understand the story, there's at least two cases in which there was inappropriate online commenting by prosecutors: The criminal investigation of Fred Heebe and the Danziger Bridge officers' case. Perricone commented on the Danziger case, and Mann commented on Heebe. Mann apparently did not begin posting until after the Danziger trials, but it appears after that trial, she and Perricone joined forces by supporting each others' online comments.

The same lawyer, Gibbons, represents both Heebe and one of the officers, Archie Kaufman, charged and convicted in the Danziger case. Gibbons is a former assistant U.S. attorney who worked under Letten and Mann. When Gibbons filed his motion for new trial in Kaufman's case over the online comments, he also filed civil defamation lawsuits on behalf of Heebe and Kaufman. The first Heebe defamation lawsuit led to Perricone's resignation. Then Gibbons filed a defamation suit for Heebe against Jan Mann. That's when she admitted she posted online. Mann's husband is also a prosecutor in the office, heading up the white collar division. He apparently didn't post online but was good friends with Perricone.

In Gibbons' motion for new trial in the Danziger case, he raised the online comments, and argued:

....that the government engaged in a secret public relations campaign against defendant Kaufman and his codefendants. As a result of these efforts, the government ensured that “Danziger”would become the household name for corruption in the New Orleans Police Department, that public opinion would be inflamed against the defendants, and that the government’s version of the facts would be well known before anyone set foot in a courtroom.

...Defendants further allege that, in addition to these activities, former Assistant United States Attorney (“AUSA”) Senior Litigation Counsel Salvador Perricone, then a high-ranking supervisory attorney in the Eastern District of Louisiana (EDLA), surreptitiously posted opinions and criticisms online on the public web page for Nola.com, which is affiliated with the New Orleans Times Picayune newspaper, to undermine the trial itself by making comments, both before and during the trial, that mocked the defense, attacked the defendants and their attorneys, were approbatory of the United States Department of Justice(“DOJ”), declared the defendants obviously guilty, and discussed the jury’s deliberations.

The Court described Gibbons' arguments this way:

Defendants argue that the government’s leaking and unauthorized writings of AUSA Perricone, as well as other actions by the government prior to trial, created a prejudicial environment amongst the public, which convinced certain witnesses to enter lenient guilty pleas, agree to cooperate, and provide false testimony favorable to the government’s theory of the case to avoid the then perceived prosecutorial juggernaut depicted in the media (and based on the government’s conduct). Defendants also contend that Perricone’s postings during the trial impacted witness testimony.

U.S. Attorney Letten was called into court in the officers' cases, and asked to explain the leaks in the paper.

I’ve said this publicly before, neither I, nor Jan Mann, nor people in positions in authority in our office, to my knowledge did not have any knowledge of, nor did we authorize, nor did we procure or have any knowledge of Sal Perricone anonymously posting comments about cases or anything like that whatsoever until we learned about it in the filing. That is gospel truth. (Id. at p. 40, l. 7-14).

The Court then ordered the government to compile a report indicating all steps that it had taken, to investigate and identify the source of the leaks that were referred to at the June 13th hearing. The Government submitted the report, and it was written by none other than Jan Mann.

The government’s June 27, 2012 “Report of Inquiry” was supervised, compiled, written and submitted by First AUSA Jan Mann. Only her name is on the Report, and it came under cover letter signed only by her. In the Report, she denies that anyone associated with the government caused a “leak”, and concluded that any sensitive information which was published came from “non-government sources” and not prosecution or investigatory agents.

Some prosecutors tried to lay the blame on outside persons:

At the June 13, 2012 hearing, in First AUSA Mann’s Report, and subsequently up to this day,the government has, as a knee-jerk reaction, speculatively (but without evidentiary support) blamed “nongovernmental sources”, including defense attorneys, cooperating defendants, NOPD officers, NOPD rank, and local police fraternal unions and organizations.

According to the Judge, Perricone has tried to blame leaks on the FBI.

After Heebe sued Mann for defamation, alleging she was one of those posting about him anonymously online, Mann admitted it and was demoted. (Federal civil service laws may prevent her from being fired at this point.)

It is alleged that approximately 63 per cent of the posts by “eweman” (First AUSA Mann) appear with comments posted by Perricone, and they frequently reply to express consistency with the points of view expressed by the other

More hearings were held in the Danziger case. The Judge hasn't yet ruled on the convicted cops' motion for new trial. He wrote:

Under these circumstances, the Court cannot rule on the defendants’ motion for new trial until the DOJ rectifies the present inadequacies. Prosecutorial misconduct in this case is a very near and present thing; however, the possibility of it ripening into grounds for relief remain somewhat distant. At this juncture, the Court is unwilling to find that Defendants have met their burden; but it is also unwilling to find that Defendants will not be able to meet that burden. In the meantime, the Court intends to follow the advice of Washington himself: “There is but one straight course, and that is to seek truth and pursue it steadily.”

There's no evidence that Letten knew about Mann and Perricone's comments. But one former AUSA in the office, Mike Magner, says he told several of his supervisors.

Magner testified that he notified several supervisors of his suspicion, including Assistant U.S. Attorney Greg Kennedy, supervisor of the office's anti-terrorism unit; Assistant U.S. Attorney Matt Coman, supervisor of the office's general crimes unit; and Assistant U.S. Attorney Maurice Landrieu, supervisor of the drug crimes unit.

"He further testified that those supervisory individuals did not wish to become 'enmeshed' in the allegation, and were not 'willing to take that risk' if Magner's suspicion could not be proven," the order says.

The Judge ordered DOJ to investigate and file a new report, to replace the one submitted by Jan Mann. Jim Horn will now have that task, although he really reports to Deputy AG James Cole, rather than the Court. The Judge also directed that a copy of his order be sent to state and federal ethical boards for consideration of disciplinary action against Mann and Perricone.

One other note about the Judge. According to one of the news articles, when sentencing the Danziger defendants, he expressed this view of cooperator testimony (in that case some cops took deals and cooperated against others.):

"Using liars lying to convict liars is no way to pursue justice," he said during the sentencing hearing