UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA * CRIMINAL ACTION VERSUS * NO. 13-131 STACEY JACKSON * SECTION “S”(2) * * * MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCOVERY MAY IT PLEASE THE COURT: Defendant, Stacey Jackson, submits this Memorandum in Support of her Motion to Compel Discovery, as follows. Defendant is charged in this four-count Indictment, with crimes of conspiracy, program fraud, theft, and obstruction of justice, returned and filed on June 6, 2013, on the very last day of the five-year statute of limitations, for Counts 1 to 3. Long before this filing, and commencing at least on August 9, 2008, government agent Sal Perricone, a supervisory Assistant United States Attorney, Eastern District of Louisiana, made a public statement about the grand jury investigation that ultimately led to this Indictment, necessarily leaked grand jury information in his unlawful disclosure, and made outrageous, unconstitutional racial slurs about the investigation of Ms. Jackson, and the whole African American community, along with attacks on the administration of Mayor Ray Nagin, of which Ms. Jackson and NOAH were a part. All information regarding his and others’ prosecutorial misconduct and Case 2:13-cr-00131-MVL-JCW Document 17-1 Filed 09/20/13 Page 1 of 23
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA * CRIMINAL ACTION
VERSUS * NO. 13-131
STACEY JACKSON * SECTION “S”(2)
* * *
MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCOVERY
MAY IT PLEASE THE COURT:
Defendant, Stacey Jackson, submits this Memorandum in Support
of her Motion to Compel Discovery, as follows.
Defendant is charged in this four-count Indictment, with
crimes of conspiracy, program fraud, theft, and obstruction of
justice, returned and filed on June 6, 2013, on the very last day
of the five-year statute of limitations, for Counts 1 to 3. Long
before this filing, and commencing at least on August 9, 2008,
government agent Sal Perricone, a supervisory Assistant United
States Attorney, Eastern District of Louisiana, made a public
statement about the grand jury investigation that ultimately led to
this Indictment, necessarily leaked grand jury information in his
unlawful disclosure, and made outrageous, unconstitutional racial
slurs about the investigation of Ms. Jackson, and the whole African
American community, along with attacks on the administration of
Mayor Ray Nagin, of which Ms. Jackson and NOAH were a part. All
information regarding his and others’ prosecutorial misconduct and
Case 2:13-cr-00131-MVL-JCW Document 17-1 Filed 09/20/13 Page 1 of 23
violations in the United States Attorney’s Office must be produced
to the defense, for the following reasons.
On August 8, 2008, three reports by the Times Picayune, on
Nola.com, and repeated in the print edition, reported on grand jury
subpoenas served on members of the New Orleans City Council for New
Orleans Affordable Homeowner Corp. (NOAH), documents, where
defendant had been employed and for which she served as Executive
Director, from 1998 until June 27, 2008. The Nola.com reports and
Mr. Perricone’s blog are attached. It was apparent from these
media reports, and others, that Ms. Jackson and her agency and
employer, NOAH, were being investigated by a federal Grand Jury.
In direct response to these media reports, Assistant United States
Attorney, Sal Perricone, under the blog name “campstblue,”
published the following on August 9, 2008:
well, man-you know, man. I didn’t knowanything about dis stuff, man, you hear whatI’m saying, man. You know, man, like youalways looking for something negative to writeabout, man. How’s dis going to help theracovery, man, you hear what I’m saying, man. We just trying to make it back, man. Didn’tyou hear what I said man, dis is a chocolatecity, man and we do things the choclate way,man–-you hear what I’m saying, man?
TRANSLATION: It’s our turn to steal. We gotthe power. You can’t do anything to us.
God Bless the US Attorneys office!!!!!!!!!
Ms. Jackson is an African American. She had no idea that this
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blog, and many others, were published by an agent of the United
States Attorney’s Office that was investigating her and her agency,
NOAH. Ms. Jackson, herself, was also served with grand jury
subpoenas, dated August 25, 2010, and September 15, 2008, requiring
appearance at the grand jury and/or production of documents. The
blogger, AUSA Perricone, was fully aware of the existence of the
grand jury investigation of Ms. Jackson and NOAH, the grand jury
subpoena, the media blitz, and the community reaction. Mr.
Perricone was a veteran of the Federal Bureau of Investigation,
having served as a Special Agent for many years, prior to becoming
an AUSA, and reaching a high supervisory level in the United States
Attorney’s Office, at the time that he made the blogs.
The above statement speaks for itself as to its blatant
violation of all rules of governmental and attorney decency and
integrity, and constitutes unconstitutionally prejudicial racial
attacks, prosecutorial misconduct, and leaks of a grand jury
investigation, and other violations. Apparently, AUSA Perricone
was not satisfied with this one racial slur and blog. He was quite
prolific in this area. The blogs quoted in the Motion to Compel
Discovery are just a few.
Ms. Jackson incorporates herein the facts, history, findings,
conclusions and legal authorities, in the Order and Reasons,
November 26, 2012 (Doc. 1070), and Order and Reasons, September 17,
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2013 (Doc. 1137), U.S. v. Bowen, et al, No. 10-204. The Order and
Reasons, September 17, 2013, Doc. 1137, is hereinafter referred to
as Bowen.
The Government was not forthcoming with its secret blogs. It
was the efforts and resources of Mr. Fred Heebe and his team of
attorneys that led to some of these discoveries, and progressed
with the investigation in U.S. v. Bowen, supra. Once the evidence
of misconduct, or at least some of it, was uncovered, resignations
occurred, the investigation of Mr. Heebe and River Birch was ended,
the Indictment in U.S. v. Fazzio, USDC, EDLA, No. 11-157, was
dismissed, and a new trial was ordered in U.S. v. Bowen, supra.
In order to discover similar evidence about blogs directed at
Ms. Jackson, and similar governmental violations against her
starting in August of 2008, Ms. Jackson’s undersigned counsel,
prior to her indictment, made multiple demands on the Government
for all information regarding blogging and leaking of grand jury
information, as it pertained to her and others. The requests were
denied.
After Ms. Jackson’s indictment, and pursuant to the Scheduling
Order, and Local Rule 12, undersigned counsel again requested this
information. More particularly, by letter, dated July 12, 2013,
defense counsel repeated the pre-indictment demands for the
information, to no avail, and then made the following formal
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discovery request:
It is apparent that there are multiple Governmentinvestigations regarding such blogging, including theinvestigation and report by Assistant United StatesAttorney John A. Horn, as ordered by Judge Engelhardt. Accordingly, please provide the following:
A. All materials and findings related to theinvestigation of Salvadore Perricone and any otherAUSAs involved in the River Birch investigation bythe Justice Department’s Office of ProfessionalResponsibility (“OPR”);
B. All materials related to the filings by Jan Mann,related to USDJ Englehardt’s order to disclose allpublic postings by, or similar to, those made byPerricone. See United States v. Bowen, et al.,2:10-cr-00204-KDE-SS (E.D.La.), Doc. No. 1070, at 7[Filed 11/26/12] (“The government’s June 27, 2012‘Report of Inquiry’ was supervised, compiled,written and submitted by First AUSA Jan Mann.”);
C. All materials and findings related to theinvestigation and report ordered by USDJEnglehardt, and assigned to special prosecutor JohnA. Horn, after the public disclosure that Jan Mannhad herself engaged in improper public discussionssimilar to Perricone and had misrepresented thetruth in argument to the court.
Undersigned counsel did not know at that time that there was more
than one report by AUSA Horn.
Counsel for the Government responded, as follows:
Government Letter, dated August 20, 2013
However, the government declines to provide anydocuments, materials, or other things related to orassociated with your discovery request as expressed inparagraph (2) of your letter July 12, 2013. As Iindicated on the telephone, nothing expressed, orpresumed to have been expressed, online by any former
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employee of the United States Attorney’s Office isrelevant to the current prosecution, or the defense ofthe prosecution, of your client, Stacey Jackson. Therefore, the government will not produce, and should beunder no obligation to produce, said materials, if theyexist, in fulfillment of its obligations pursuant to theFederal Rules of Criminal Procedure.
Government Letter, dated September 11, 2013
(2) As noted in the government’s August 20, 2013 letterto defense counsel, the government objects to theproduction of any materials or information sought in thisrequest. As written in that letter, ‘the governmentdeclines to provide any documents, materials, or otherthings related to or associated with your discoveryrequest as expressed in paragraph (2) of your letterdated July 12, 2013. As I indicated on the telephone,nothing expressed, or presumed to have been expressed,online by any former employee of the United StatesAttorney’s Office is relevant to the current prosecution,or the defense of the prosecution, of your client, StaceyJackson. Therefore, the government will not produce, andshould be under no obligation to produce, said materials,if they exist, in fulfillment of its obligations pursuantto the Federal Rules of Criminal Procedure.
In all respects, Local Rule 12, has been satisfied.
The documents demanded herein are necessary for Ms. Jackson to
prepare her defense, and the claims that she intends to bring, to
wit:
(i) claims of Government violation of grand jury secrecy
rules, Rule 6(e)(ii), Federal Rules of Criminal
Procedure;
(ii) prosecutorial misconduct and unethical conduct;
(iii) violation of federal regulations;
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(iv) creating a media carnival atmosphere and public pressure
on others being investigated, as a tool to rein in other
subjects of the grand jury;
(v) racial targeting and profiling;
(vi) attempting unlawfully to influence public opinion, and
potential and actual jurors;
(vii) unlawful Government public expression of personal
opinions about Ms. Jackson’s guilt, and publicly stating,
in effect, that she must have committed the crimes for
which she was being investigated, because of the color of
her skin, and that she and other African Americans
routinely commit crimes and have the right to do so,
because of the color of their skins;
(viii) making comments to appeal to the conscience of the
community to convict African Americans, including Ms.
Jackson, who he says has been committing crimes with
impunity; and, otherwise convict Ms. Jackson for reasons
other than evidence presented at a fair trial with due
process of law, which she can no longer have due to these
Government misdeeds.
The above requested discovery will also show a pattern of
similar governmental misconduct, system and intent to violate the
law and procedure, under the provisions of Rule 404(b), Federal
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Rules of Evidence. Other claims and defenses will be based on this
discovery. The blogging spree, also involving grand jury leaks,
was so prevalent that it is inescapable that high-ranking agents of
the government, Mr. Perricone, and others, engaged in a pattern of
conduct, demonstrating a peculiar unique system and intent to leak
grand jury investigations, and attack citizens that were being
investigated by federal grand juries.
In Mr. Perricone’s racial blog and attack, he attempts to
somehow remind the community that it must not allow the African
American community to get away with its penchant for public
corruption, and that only the U.S. Attorney (“God Bless the U.S.
Attorney’s Office”) can and will do something about it. It was
obviously a culture of defamation, racial attack, and disregard for
the rights of citizens being investigated.
Again, Mr. Perricone tried to gain advantage, and win
community sentiment over to the side of the Government, in all
investigations of corruption. Just as he said in the above August
9, 2005 blog, that the community only has the U.S. Attorney’s
office to save it from corruption, particularly as committed by
blacks, he blogged on December 3, 2010, and on August 9, 2011, as
follows:
This case, no matter how it turns out, hasrevealed the NOPD to be a collection of self-centered, self-interested, self-promoting,
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insular, arrogant, overweening, prevaricating,libidinous fools and that the entire agencyshould be re-engineered from the bottom up. This case has ripped the veil of respectibiltyaway from the police department. The facts,as reported here–and if they are correct–showsa group of people who, when not having sexwith each other, or beating, burning andabusing the citizens. Thank God for theFeds–can you imagine New Orleans without aFederal presence? (Emphasis added.) (Bowen,Pgs. 53, 68.)
*****
The entire weft of the NOPD’s culture was ontrial in this horrid episode. The DOJassembled a great team which had institutionalsupport beyond the TP’s comprehension. We canonly imagine what this city would be likewithout the DOJ. Some NOPD officers, I wouldassert, are musing the same thing. (Emphasisadded.) (Bowen, Pg. 85.)
So, this city would be lawless, because of corrupt black
criminals, without the U.S. Government. Since Ms. Jackson is
black, and was an employee of NOAH, we can thank the U.S.
government for pronouncing her guilty without a trial and due
process of law.
One obvious aftermath is that the name and character of
“Stacey Jackson,” played prominently as an underworld criminal in
the popular HBO series, “Treme.”
Mr. Perricone went beyond this direct racial blog, and cast
aspersion on former Mayor Ray Nagin, and his entire administration,
blogging that the corruption in Mayor Nagin’s administration
9
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exceeded the corruption in Mayor Morial’s administration. If the
above “Chocolate City” blog were not enough wrongdoing by Mr.
Perricone, his public blog about Mayor Nagin’s entire
administration directly impacts, effects and victimizes Ms.
Jackson, because she was the Executive Director of NOAH, a city
agency, under the Nagin administration, and also an African
American.
The only way Ms. Jackson can prepare for and present these
defenses is to have the very evidence that was causing these
defenses to be necessary in the first place - the plenary reports
by government investigators, including AUSA Horn, as ordered by and
rendered to Judge Englehardt (Bowen, Pg. 12). She does not have
access to the extensive investigation, including statements,
emails, interviews and other evidence discovered by Mr. Horn and
government investigators, which will bolster and support her
defenses. The Government can offer no excuse or reason whatsoever
as to why these reports should not be provided to the defense, or
even made public.
The Honorable Martin Feldman, in the sentencing of the
defendant in U.S. v. Mouton, supra, inquired of Government counsel
as to why these reports where not discoverable. Government counsel
could only respond, “I do not know why he [Mr. Horn] did not turn
over that report. I personally do not have a copy.” (Transcript
10
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of Sentencing, Pgs. 7, 20.) It was revealed that the Government
refused Mr. Mouton’s probation officer’s request for a copy of the
frankly, I don’t know why that decision was made. I wasn’t
involved with it.” (Bowen, Pg. 20.)
Judge Feldman repeated his inquiry as to why the Government
simply did not produce Mr. Horn’s report.
Where we are is we have a request for downwarddeparture by the government from five years to four yearsfor egregious conduct by this defendant, who has admittedthat he took bribes in connection with an investigationthat has been terminated by the government undercircumstances in which the government has not shared withthe Probatin Office or this Court the results of aninvestigation that has been ordered by one of mycolleagues regarding the at least serious potential forgovernment abuse and misconduct. Is that where we are/ Is that a fair statement?
(Bowen, Pg. 8.)
Judge Feldman again asked:
Why would you not just turn over the papers?
MR. LICHTER: Your Honor, quite frankly, Idon’t know why that decision was made. Iwasn’t involved with it.
THE COURT: I know. I understand.
MR. LICHTER: No, I appreciate that. Withrespect to this case, if we are talking aboutmisconduct that occurred in a Katrina shootingcase or related to an entirely separatematter, I’m not sure if that would be relevantto Mr. Mouton’s sentencing.
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THE COURT: Well, we don’t know because all weknow is that the broad scope of the storiesabout prosecutorial misconduct aren’t limitedto a case.
MR. LICHTER: Right.
THE COURT: They are focused on a governmentoffice charged with the duty of upholding theConstitution when they charge and prosecutepeople and with an overarching concern thatthe Department of Justice, which oversees thelocal U.S. Attorney’s Office, somehow wascomplicit in those stories. That’s thedifference.
I appreciate your position. I’m prepared toproceed to the sentencing hearing. Thank youvery much.
Unlike Mr. Mouton, who moved for production post-guilty plea,
thereby, arguably, waiving his rights to relief based on the
Government’s prosecutorial misconduct, Ms. Jackson has not pleaded
guilty, is now engaged in pretrial discovery and motions, and is
set for trial on January 13, 2014. She did not waive any of her
rights. She is asserting all of them, including the right to
prepare for a fair trial and due process of law, free of
governmental racial prejudice, incitement of community outrage, and
other governmental acts that influence the community and potential
jurors, and a conviction with a tainted jury pool.
Authorities
First and foremost, the above-requested discovery of the blogs
and Government investigation reports fall squarely within discovery
provided in Rule 16(a)(1)(E)(i). Ms. Jackson must have this
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information in order to prepare the above defenses, fully and
completely, well in advance of trial. “Whether rooted directly in
the Due Process Clause of the Fourteenth Amendment or in the
Compulsory Process or Confrontation Clauses of the Sixth Amendment,
the Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’ Crane v. Kentucky, 106
S.Ct. 2142 [1986] (quoting California v. Trombetta, 467 U.S. 479,
Holmes v. South Carolina, 126 S.Ct. 1727, 1731 (2006).
The requested discovery is also favorable to the defense, and
will show additional violations by government agents, if only tacit
approval of the leaks and blogs that are known at the present time.
The Government’s obligations under Brady v. Maryland, 373 U.S. 83
(1963), and its progeny, are well known. “The prosecution’s
affirmative duty to disclose evidence favorable to a defendant can
trace its origins to early 20th-century strictures against
misrepresent...” Kyles v. Whitley, 115 S.Ct. 1555 (1995).
These rules have also been encapsulated in the Louisiana Rules
of Professional Conduct, Rule 3.8, “Special Duties of Prosecutor,”
which are binding on government attorneys. The Government should
also be reminded of the Department of Justice’s expanded policy for
providing exculpatory information to the defense.
In addition, Department policy provides forbroader disclosures of exculpatory andimpeachment information than Brady and Giglio
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require. See USAM §9-5.001. Prosecutors inevery district and component must comply withlegal requirements and with Department policy. Moreover, there are times when providingdiscovery broader than that provided for evenby current Department policy serves theinterests of justice. Providing broad andearly discovery often promotes the truth-seeking mission of the Department and fostersa speedy resolution of a case.
The United States Department of Justice, Memorandum for Heads ofDepartment Litigating Components Handling Criminal Matters, AllUnited States Attorneys, January 4, 2010.
It is completely contrary to these rules and policies for the
Government to refuse to provide the above requested discovery.
“‘[F]air play-which is the essence of due process.’ Galvan v.
Press, 74 S.Ct. 737, 742 (1954). Such fair play includes ‘the
deep-rooted feeling that the police must obey the law while
enforcing the law; that in the end life and liberty can be as much
endangered from illegal methods used to convict those thought to be
criminals as from the actual criminals themselves.’ Spano v. New
York, 79 S.Ct. 1202,1206 (1959) (emphasis added). This deep-rooted
feeling extends even deeper where prosecutors are concerned, given
that they are officers of the court bound to special Rules of
Professional Conduct. See, e.g., La. Rules of Professional
Conduct, Rule 3.8 (Special Responsibilities of a Prosecutor).”
(Bowen, Page 33.)
These rules were violated when Sal Perricone, and perhaps
others, leaked the grand jury investigation and made the racial
14
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blogs, to gain an advantage.
The favorable evidence in the requested discovery will prove
violations of the Rule 6(e) secrecy requirement. The mere fact
that there is a grand jury investigation, as disclosed by a
government agent, such as Mr. Perricone, is a violation of the
grand jury secrecy rules. The above blog was such a violation.
The rules mandating grand jury secrecy are well established
and prohibit anyone connected to the Government from disclosing any
matter that occurs before the grand jury. The grand jury process
is inherently – and necessarily – secretive. Federal Rules of
Criminal Procedure, Rule 6(e), prohibits the disclosure of matters
pending before the grand jury. As the Supreme Court explained in
Douglas Oil Co. of Cal. v. Petrol Stops Nw., 99 S.Ct. 1667, 1673,
n.9 (1979). “Since the 17 century, grand jury proceedings haveth
been closed to the public, and records of such proceedings have
been kept from the public eye.” The Court has consistently
recognized that, “the proper functioning of our grand jury system
depends upon the secrecy of the grand jury proceedings.” Id. at
1672.
A violation of Rule 6(e) deals a blow to the foundation of the
grand jury system, which “depends upon the secrecy of grand jury
proceedings.” Douglas Oil Co., supra, at Page 218. “Courts must
not tolerate violations of Rule 6(e) by anyone.” Finn v. Shiller,
72 F.3d at 1189 (emphasis added). Further, parties aggrieved by
15
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violations of the rules, “may notify the court of a violation of
the rule or may petition the court to investigate an alleged
violation.” Id. at 1188. Rule 6(e)(7) allows this Court to punish
a knowing violation of Rule 6 as a contempt of court. Ms. Jackson
cannot take these steps without the evidence contained in the
requested discovery.
When improper prosecutorial statements in the media are
connected to leaks of secret grand jury information, Federal Rule
of Criminal Procedure 6 is implicated. Rule 6(e)(2)(B) of the
Federal Rules of Criminal Procedure provides that “an attorney for
the government...must not disclose a matter occurring before the
grand jury.” Federal Rules of Criminal Procedure 6(e)(2)(B). Both
the Fifth Circuit and the Supreme Court have emphasized the
importance of maintaining secrecy in grand jury proceedings.
United States v. Lance, 610 F.2d 202, 213 (5 Cir. 1980) (Citingth
Douglas Oil Co v. Petrol, supra; United States v. Proctor & Gamble
Co., 78 S.Ct. 983 (1958)).
In United States v. Lance, supra, the Fifth Circuit held that
a party who establishes a prima facie violation of the grand jury
secrecy rule is entitled to an evidentiary hearing before the
district court. See Lance, supra at 220-221. There, the Fifth
Circuit established the following test to determine whether a party
is entitled to relief from a Rule 6 violation based upon news media
reports: first, it must be clear that the article clearly
16
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“disclose[d} information about ‘matters occurring before the grand
jury.’” Lance, supra, at 216. Second, it must be apparent that the
source of the information divulged was one listed in Rule
6(e)(2)(B), such as a government attorney. The article need not
specify that a government attorney was, in fact, the source of the
information when the nature of the information supplied was of the
sort that implicates the government attorneys. Id. at 218. Third,
the Court should assume that the article’s statements are accurate.
Id. At 219. Fourth, the Court must consider the relief requested
by the defendants. Id. Finally, the Court must take into account
the evidence presented by the Government that contradicts the
defendant’s allegations. Id. At 219-20. The Lance court
determined that this test was satisfied when the defendant
presented un-rebutted evidence that the prosecution leaked secret
grand jury information to the media. As a result, the court
remanded for an evidentiary hearing to establish whether contempt
sanctions should issue.
The above-requested discovery will obviously show the source
of the leak, AUSA Sal Perricone, and perhaps others, and satisfying
these requirements.
Production of the above-requested discovery will provide some
evidence of the extent of the racial blogs, unlawful influence of
the grand jury, and breach of the secrecy rules. Without it, Ms.
Jackson may never know the true extent of other false and
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defamatory online attacks by Mr. Perricone, and possibly others in
the U.S. Attorney’s Office, who have yet to be unmasked. But,
collectively, these attacks, performed by the highest ranking
members of the same U.S. Attorney’s Office that launched an
investigation of Ms. Jackson, presented its version of facts before
a grand jury, indicted her, and ultimately sought to conceal its
wrongdoing from the Court and public, illustrate an obvious,
deliberate, and years long conspiracy to scheme and employ by all
means possible to destroy the public image of Mr. Jackson, as both
an African American woman and official in the Nagin administration.
The methods of the Government in this case amount to a violation of
her rights to due process, the presumption of innocence, and the
right to a fair trial.
The reports may also show how long they had been doing this,
possibly under different blog names, and will lead to more
Pervasive racial blogs and remarks, within the United States
Attorney’s Office, will show and bolster that this grand jury
indictment was racially motivated. This is relevant, because the
decision to prosecute may not be deliberately based upon an
unjustifiable standard, such as race, religion or other arbitrary
classification, Bordenkircher v. Hayes, 98 S.Ct. 668 (1978); U.S.
v. Goodwin, 102 S.Ct. 2488 (1982).
It was also proven and documented in U.S. v. Bowen, supra,
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that blogs by Mr. Perricone and others clearly violated federal
regulations, 28 C.F.R. 50.2, pertaining to release of information
to the news media by personnel of the Department of Justice, such
as Mr. Perricone. He and anyone else in DOJ who blogged completely
violated these regulations.
“Due process requires that the accused receive a trial by an
impartial jury free from outside influences.” Sheppard v. Maxwell,
86 S.Ct. 1507, 1522(1966). Stated differently, “the right to jury
trial guarantees to a criminally accused a fair trial by a panel of
impartial, ‘indifferent’ jurors. The failure to accord an accused
a fair trial violates even the minimal standards of due process.”
Irvin v. Dowd, 81 S.Ct. 1639, 1642 (1961). The Supreme Court has
long held that media coverage can so bias a jury, that a new trial
is required. See, e.g., Rideau v. State of La., 88 S.Ct. 1417
(1963). As stated by the court, “if publicity during the
proceedings threatens the fairness of the trial, a new trial should
be ordered.” Sheppard, supra, at 1522. Indeed, “when the
defendant proffers evidence of pervasive community prejudice in the
form of highly inflammatory publicity or intensive media coverage,
prejudice is presumed and there is no further duty to establish
actual bias.” United States v. Capo, 595 F.2d 1086, 1090 (5 Cir.th
1979).
Improper use of the media by persons close to the judicial
process has the greatest potential to inflame the public and
19
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prejudice the rights of the accused. In Sheppard, supra, the
Supreme Court stated that neither prosecutors, counsel for defense,
the accused, witnesses, court staff, nor law enforcement officers
should be permitted to frustrate the trial court’s function and
that collaboration between counsel and the press as to information
effecting the fairness of a criminal trial is not only subject to
regulation, but is highly censurable and worthy of disciplinary
measures. Sheppard, supra. Of these parties, the prosecution’s
improper use of the media is subject to special scrutiny. “To have
the prosecutor himself feed the press with evidence that no self-
restrained press ought to publish in anticipation of a trial is to
make the State itself through the prosecutor, who wields its power,
a conscious participant in trial by newspaper, instead of by those
methods which centuries of experience have shown to be
indispensable to the fair administration of justice.” Stroble v.
State of Cal., 72 S.Ct. 599, 609 (1952) (Frankfurther, J.,
Dissenting).
It was also found in Bowen, supra, that the advantage sought
by the Government, through its media blitz and blogs, was the
creation of a propaganda campaign, and “carnival circus”
atmosphere, thereby using the press as a tool to rein in other
subjects of the grand jury and get them to cooperate and plead
guilty. (Bowen, Pages 65, 115, 116, 124.)
The Court in Bowen also recognized that the judicial system,
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and the public, may never know the full extent of the blogs, and
the numerosity of bloggers. (Bowen, supra, at 118.) AUSA Jan Mann
admitted that there were others, besides Mr. Perricone and herself.
(Bowen, Pgs. 95, 119.) It was even determined that the “Taint
Team” leader, Karla Dobinski, DOJ, was blogging. (Bowen, Pgs. 56,
64, 110.) We cannot depend on Mr. Perricone’s testimony as to the
extensiveness of his activities, as he was found to be incredible.
(Bowen, supra, Pgs. 54-56.)
Judge Engelhardt found in Bowen, supra (Doc. 1137), that the
Government blogs and misconduct so infected the integrity of the
entire system that, regrettably, he had no choice but to reverse
the convictions and grant a new trial, even if actual prejudice
could not be proven, as prejudice need not be proven (Bowen, Pgs.
44, 114). “The cumulative effect of a plethora of government
misdeeds,” as here, and the “totality of circumstances,”
“considered together,” caused the extraordinary sanction of a new
trial (Bowen, Pgs. 44-49). The facts “show this misconduct has
metastasized” (Bowen, Pg. 121), to the extent that Government
authority has “left a fractured public trust” (Bowen, Pgs. 121,
124).
If this is the tragic state of affairs for the Bowen case,
supra, wherein those defendants did not plead guilty and waive
rights, it is even more so in the present case, where Ms. Jackson,
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was attacked for the color of her skin, the fact that she worked in
the Nagin administration, and that the public must clean it up, not
let African American public officials, such as Ms. Jackson, get
away with the same crimes that Mr. Perricone claims they have been
skating from for many years. The damage has been done, it is up to
the defense of this case to obtain discovery and prove its
defenses. It is actually up to the Government, as officers of the
court, and in the interest of justice, members of the Department of
Justice, to go out of its way, and bend over backwards to provide
the very evidence of its own misdeeds. And, it is up to the Court
to see to it that discovery of this highly relevant evidence is
turned over to the defense.
As Justice Sutherland memorably stated in Berger v. U.S.:
The United States Attorney is therepresentative not of an ordinary party to acontroversy, but of a sovereignty whoseobligation to govern impartially is ascompelling as its obligation to govern at all;and whose interest, therefore, in a criminalprosecution is not that it shall win a case,but that justice shall be done. As such, heis in a peculiar and very definite sense theservant of the law, the twofold aim of whichis that guilt shall not escape or innocencesuffer. He may prosecute with earnestness andvigor - indeed, he should do so. But, whilehe may strike hard blows, he is not at libertyto strike foul ones. It is as much his dutyto refrain from improper methods calculated toproduce a wrongful conviction as it is to useevery legitimate means to bring about a justone.
Berger v. United States, 55 S.Ct. 629, 633 (1935).
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Respectfully submitted,
CRULL, CASTAING & LILLYPan American Life Center601 Poydras Street, Suite 2323New Orleans, LA 70130Telephone: (504) 581-7700Facsimile: (504) 581-5523
BY: /s/ Edward J. Castaing, Jr. Edward J. Castaing, Jr. #[email protected]
Counsel for Stacey Jackson
CERTIFICATE OF SERVICE
I hereby certify that on September 20, 2013, I electronicallyfiled the foregoing with the Clerk of Court by using the CM/ECFsystem which will send a notice of electronic filing to all knowncounsel of record.
/s/ Edward J. Castaing, Jr. Attorney
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