|River Birch landfill|
A New Orleans landfill owner has discovered a tactic for fighting back against abusive federal prosecutors. Could the strategy prove helpful to victims of prosecutorial misconduct in Alabama? We think the answer might be yes.
Fred Heebe, co-owner of the River Birch landfill, has been the target of a federal investigation for almost three years. But Heebe has refused to cower in a defensive position against the government; in fact, he has found a way to draw blood from prosecutors on the case.
For the second time this year, Heebe has filed a defamation lawsuit against a prosecutor in the office of U.S. Attorney Jim Letten. The first led to the resignation in March of Assistant U.S. Attorney (USA) Sal Perricone. The second, filed late last week, already has led to the demotion of First Assistant USA Jan Mann. (See complaint at the end of this post.)
Brendan Sullivan, of the Washington, D.C., firm Williams Connolly, represents Heebe in the defamation matters.
Heebe claims in the lawsuits that Perricone and Mann adopted fictitious names to publish false and defamatory information about him in online message boards. Perricone admitted to publishing hundreds of comments about Heebe under the name "Henry L. Mencken 1951." Heebe claims in the lawsuit last week that Mann published false messages about him under the alias "eweman." The U.S. Attorney's office announced last week that Mann had admitted to posting messages online, but it was unclear if she was, in fact, "eweman."
Heebe's tactics are ingenious because they allow him to get around prosecutorial immunity, which often blocks legal action against even the most corrupt prosecutors. The general rule is that prosecutors cannot be held civilly liable as long as they are acting in their official capacity. But Heebe's lawsuits allege misconduct in the prosecutors' off hours, outside their official duties. That apparently removes the cloak of immunity and opens up prosecutors to damages that could be hefty.
Here in Alabama, we have seen numerous victims of questionable federal prosecutions--from former Governor Don Siegelman, to former State Rep. Sue Schmitz, to Huntsville defense contractor Alex Latifi. The most recent example came in a trial and re-trial of the Alabama bingo prosecution. Among the prominent targets in those cases were casino magnate Milton McGregor, State Sen. Harri Anne Smith, and lobbyist Tom Coker. The cases resulted in zero convictions, and published reports hint at highly dubious actions on the part of prosecutors.
Do those harmed by such actions have legal recourse? As long as prosecutors are acting in their official capacities, the answer often is no. The Hyde Amendment of 1997 allows federal courts to award attorneys' fees and costs to defendants who were targeted in bad-faith prosecutions. Alex Latifi, after being exonerated in Huntsville, sought compensation via the Hyde Amendment. The process, however, is subject to extended appeals, and it can be difficult for the wronged party to prevail against the government's resources.
Fred Heebe might have found a better path. And it doesn't just seek compensation from the government in general. It goes directly after prosecutors in a personal way. The key, of course, is proving that prosecutors engaged in misconduct outside their official capacities.
That is not an easy task. But in the world of digital communication, it's likely that Perricone and Mann are not the only federal prosecutors who have been tempted to defame their targets by engaging in online chats.
How did Heebe and his legal team unmask the New Orleans prosecutors? First, they filed a pre-lawsuit discovery petition under Rule 27 of the Federal Rules of Civil Procedure. This immediately turned the tables, putting prosecutors on the defensive. It also produced quick results, as shown on page 1 of the complaint below:
Mr. Heebe filed a pre-suit discovery petition in this Court on March 12, 2012, seeking to conduct discovery in order to verify the identity of the person responsible for making libelous and defamatory statements about Mr. Heebe and his family on the Times-Picayune website, Nola.com, under the handle "Henry L. Mencken 1951" (Mencken). Three days later, Jim Letten, the United States Attorney for the Eastern District of Louisiana, held a press conference in which he revealed that "Mencken" was one of his chief lieutenants (now former), Assistant United States Attorney Salvador Perricone. During the press conference Letten took great umbrage at the suggestion that others in his office were involved in surreptitious online activity . . .
However, Perricone was not the only member of Letten's staff who regularly used the Nola.com comment boards as a forum for lashing out against--and in some cases, defaming--persons associated with . . . investigations.
The services of a former forensic linguist with the FBI also came in handy. What did his analysis reveal? Here is how one news report explains it:
In an attempt to link the blog comments to Mann, the suit states that “eweman’s writings contain thematic and linguistic signposts that point unmistakably in the direction of the USAO and, in particular, to Letten’s second-in-command.”
As they did with Perricone, Heebe’s attorneys and experts claim they found stylistic flourishes in Mann’s writing that precisely match the language used by eweman.
For example, Heebe claims that eweman uses “superfluous spacing before punctuation marks,” the same feature seen in Mann’s writings. The suit also notes eweman’s use of the obscure slang term “fender lizard” which “Ms. Mann is known to use in conversation.”
What about the Alabama bingo case? Is it possible that members of the prosecution team took to online forums to attack defendants? Is it possible that an investigation would reveal the kind of communication habits that helped unmask rogue prosecutors in New Orleans?
For Milton McGregor and other victims of the Alabama bingo prosecution, it might be worth their while to give such questions serious thought.
Fred Heebe Lawsuit