Fall from Grace

Disgraced former Councilman Oliver Thomas was sentenced yesterday for his admitted bribery. He got 37 months in prison, the maximum recommended sentence given the nature of the crime and his criminal history. This is a pathetic end to a promising career. As Judge Sarah Vance observed during sentencing, Mr. Thomas was well regarded and, by most accounts, slated to be future mayor of the City. Despite his professed love for the City and supposed desire to help people, Mr. Thomas could only help himself to a heaping serving of greed. When it came time to cooperate with the government -- which he promised to do as part of a plea deal -- he turned his back on the City and refused to talk. (There's speculation that Thomas chose silence out of loyalty to former Mayor Marc Morial, who has a prosecutor's target of his own on his back.) Just when we thought a disgraced politician was going to come clean, we got more of the same.

It's the accounting, stupid!

Sheriff Marlin Gusman admits he overcharged the City $2 million for prisoners in his custody that were actually federal inmates for which the federal government has already paid. He supposedly refunded the money (with interest?), but this is the second time in a month Gusman has had to fess up to double billing the City. Gusman blames it on the transition to a new computer system mandated by the State. I think incompetence is more apt. Gusman has a history of not having a clue who he has in custody. When it comes to generating revenue for the Sheriff fiefdom, he conveniently has more names on the rolls than he should. When it comes to knowing who's in custody and for how long, he feigns ignorance. Can the City get a refund on Gusman?

The Color of Money

Bill Jefferson, the disgraced Congressman who keeps bribe money in his freezer, has weighed in on DA Eddie Jordan's resignation. Jefferson concludes that Jordan merely sought to replace the non-legal staff with persons who were loyal to his election campaign. (No white Assistant DA's were replaced.) I think there is a kernel of truth in that. Jordan indeed did what every public official has ever done, which is to hire his own cronies. The problem in this case is that Mr. Jordan's inherited staff was overwhelmingly white (a historical vestige of Harry Connick's office), which he replaced with a staff that is overwhelmingly black.

In the cauldron of racial passions, it was a foregone conclusion that a jury was going to find discrimination. (In case, you're wondering, the federal jury pool tends to tilt significantly white despite the majority black population in Orleans Parish.) The real question, however, is whether this discrimination was lawful or not: Were persons hired and fired because of, in or in spite of, race? I don't know what Mr. Jordan's real motivation was, and the jury's verdict must be respected. But I think it is unfortunate that the controversy over questions of basic competence have been overshadowed by the indelible mark of racism. Mr. Jordan should be removed from office because his competence and leadership of the DA's office is in serious doubt, not because the DA's office can't afford to pay the monetary judgment. (After all, we don't disband the government every time a court orders our public officials to pay for their mistakes.) It shouldn't be about the money. Not so for Mr. Jefferson. It's all about the money in his case, and Mr. Jefferson should take a page out of Mr. Jordan's book and make a dignified exit.

Hari Kari, Nola Style

At least Eddie Jordan got something right as DA. He resigned. Maybe not quite as honorable as Japanese Hari Kari, but he's finished as Orleans Parish DA all the same. I don't know Mr. Jordan personally and have no informed opinion on his integrity, but I think it's fair to say he was not working out as the DA. The City needs to move forward, and I suspect (and hope) this is just another chapter in the saga of cleaning house in City government and replacing inept, inneficient, or corrupt officials with those who can better serve the City instead of serving as distraction. Call it falling on one's sword if you will, but I say good riddance.

Truth Is Stranger Than Fiction

Eddie Jordan, the embattled DA of Orleans Parish, can't seem to avoid controversy. This story is downright bizarre.

The Kingfish of Jefferson

Jefferson Parish will have to anoint its first new sheriff since 1980. The beloved and sometimes reviled Sheriff Harry Lee has passed away. Harry Lee was an institution, an indefatigable, one-man political machine. He was no stranger to controversy, often taking an overtly racist -- some say realist -- view of law enforcement. He was keenly practical, sometimes bordering on comical, like when he ordered his deputies to take target practice on nutria rats to control their spread. He was generous and charitable, even if that was driven in part by his admitted design to bolster political support. There is no denying he was less than perfect, but Harry Lee also was an undeniable leader. Political warts and all, he will be missed. Rest in peace, Harry Lee.

And now for something completely different.

Not! Monty Python couldn't make up this outrageous outrageous story. A judge in Ohio appointed a public defender to handle an assault case and insisted that the public defender go to trial on two-day's notice. When the lawyer refused to proceed because he did not have time to prepare, the held him in contempt and ordered him to jail. The judge was unapologetic, saying he would not let the public defender "impede justice in Portage County." Sounds like a lesson in irony and judicial intemperance.

The defendant may well be at fault for not securing counsel sooner. Or perhaps the State was remiss in not appointing counsel at a more seasonable juncture (ie, more than 2 days in advance). And maybe the case was so simple that it really did not require but a few hours time to prep. But it's pretty obvious that the public defender should not be jailed for being unable and unwilling to proceed on case for which he says he was afforded reasonable time to prepare. Too bad judges enjoy immunity for their actions, because this is truly beyond the pale.

I'm sorry to say that just these sorts of threats (and sometimes actions) take place in New Orleans and many other quarters. Yet another example of a judge that thinks public defense is just an impediment, trials a quaint formality, and prosecution god's work. Nobody expects the Spanish Inquisition.

More of the same.

Breaking News: Oliver Thomas -- New Orleans City Councilman -- has pleaded guilty to bribery. Just another corrupt politician using his office, and abusing the public trust, to make a buck for himself. This, in my view, is a truly insidious crime that tears the very fabric of society. If you can't trust the persons elected to represent the public's interests, then why bother having elected government in the first place? I guess Mr. Thomas takes Twain a little too literally: Honesty is the best policy, when there is money in it.

And I wonder if this is more of the "double-edged" bad news that Mayor Nagin seems to think will, at least, keep the "New Orleans brand" in the spotlight.

Bad News is Good News?

Or so Mayor Nagin would like to have it. In a poor attempt at political sophistry, Mr. Nagin tries to spin murder into a good thing for the City. He says all the press coverage about the City's over-active murder industry is a "two-edged sword." He worries only "somewhat" that the murder rate is hurting the economy because, he reasons, all the negative press at least gets the "New Orleans brand out there." If the "brand" is "murder capital," then I suspect tourists and consumers would rather not buy. (Check out this "ad.") Can we get a refund on votes for Mayor?

Congressional Office is a Member's Castle?

Representative Bill Jefferson, who faces criminal prosecution for bribery, surely will claim victory today. That's what politicians do. They spin even bad news into good; they make the mundane sound momentous. A federal appeals court ruled today that the search of the Congressman's office was illegal, at least in part. But while the court's ruling validates a technical, arcane feature of Constitutional law, it remains to be seen whether it offers any substantial vindication for Mr. Jefferson. I think not.
By now everyone knows the basic facts. Mr. Jefferson is suspected of taking bribes. In short, he supposedly agreed for a fee to use his power as a Congressman to promote some business interests in Nigeria in which he had an interest. In his home freezer, he just so happened to have stored $90,000 in marked bills, the same money allegedly paid by an undercover informant. The government wanted to search his Congressional office for more evidence. Mr. Jefferson cried foul, claiming that the the search violated his Constitutional rights. Here's where it gets confusing for the non-lawyers. He says the search violates the Separation of Powers because the Executive (ie, the Department of Justice) cannot interfere with the business of the Legislature (ie, a Congressman). He maintains that his office files are "privileged" or immune from disclosure under the "Speech or Debate" Clause in the Constitution. Arguing that the search was illegal, he has asked the courts to give him back all his files and prevent the government from using them in its prosecution.

The court agreed in part, but it probably won't do much to save Mr. Jefferson's hide. The court basically said that the government has to give back all legislative materials (no argument there) and that in case of disagreement the court will decide what is "privileged" from disclosure and what is not. Thus, the court has required extra special procedures to protect Mr. Jefferson's bona fide legislative activities, but he's still subject to prosecution, and legitimate non-legislative materials can be seized and used against him in a criminal prosecution. (The court admittedly left a slight crack in the door for Mr. Jefferson to argue later that even non-legislative materials can't be used in his prosecution. It is doubtful that Mr. Jefferson will prevail on that argument, however.)

So what does this mean? There is no dispute that a Congressman can be prosecuted for a crime. Nor is there any dispute that the government is entitled to use a search warrant to collect non-legislative materials from his office sanctuary if they may be evidence of a crime. Mr. Jefferson's technical gripe is that the FBI agents who executed the search warrant at his office may have viewed some legislative papers that are absolutely immune from disclosure under the Speech or Debate Clause. This is really the fulcrum of the problem. Mr. Jefferson surely will say everything in his office is part of his legislative activity (and therefore privileged) while the government will say that anything to do with the business interests in Nigeria is evidence of a crime (bribery). Buried in the court's opinion is the key observation that his privilege from disclosure "does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions." Thus, Mr. Jefferson can't use the very legislative misconduct at issue in the bribery case as a shield against a search warrant.

Thus, a Congressman's office may be his legislative castle, but FBI agents wielding search warrants will be able to get in with something less than a Trojan horse.

Louisiana's Chief Persecutor

Louisiana's Attorney General, Charles Foti, needs to move on. The grand jury found no probable cause to pursue murder charges against a doctor accused of killing her patients during Hurricane Katrina. Probable cause is a very low standard. To borrow from the old adage, the grand jury essentially told the prosecutors that their case fell at least a slice of bread short of a ham sandwich.

Undeterred, Mr. Foti wants to make his case to the public. He has released reports from supposed medical experts hired by his office that suggest that the deaths should be ruled homicides. This isn't about prosecution; it's persecution. Given that State prosecutors have exclusive control over what evidence is presented to the grand jury, one has to wonder (because grand jury proceedings are secret) whether (a) the grand jury saw these reports and remained unmoved or (b) the State, for whatever reasons, simply chose not to present the evidence to the jury. Either way, the grand jury has spoken, and that should put the matter to rest. To be sure, it is in theory possible for the State to simply present its case again to another grand jury. (The Constitution's Double Jeopardy prohibition does not apply to grand jury proceedings.) But that would be highly unusual. (In the federal system, line prosecutors must get approval from the Assistant Attorney General for the Criminal Division to take s second bite at the grand jury apple.)

Mr. Foti is essentially thumbing his nose at the very criminal justice system he's supposed to support. The grand jury serves as a bulwark against prosecutorial overreaching. It ensures that the State has at least probable cause (i.e., it's more likely than not that a crime has been committed) before pursuing a felony prosecution. Mr. Foti apparently finds the grand jury inconvenient, or at least irrelevant, when it conflicts with his personal assessment of the merits of a case. I only wish the State showed such fervor when it pursues other serious crimes -- like the countless street murders. Alas, Louisiana is mired in moral questions over doctors' treatment of terminally ill patients rather than focusing on the literally black and white issues of street thuggery.

I wonder how Mr. Foti has acquired such god-like certainty in this particular case. He is not a doctor. The Coroner found the evidence inconclusive. Loads of doctors have weighed in with varying opinions on the matter. At bottom, however, none of them were there (except, of course, the accused Dr. Pou) when the events in question transpired. With all due respect, I'm not even sure what Mr. Foti's qualifications are as a lawyer. As far as I can tell, he served as the Parish Sheriff for three decades and hardly ever practiced law before being elected AG. That's not to say he's unqualified. (You can judge his qualifications and accomplishments for yourself.) It's merely an observation that he doesn't seem to be in the best position to judge. Indeed, our justice system leaves that to the grand jury. Unless, of course, Mr. Foti brings back the Inquisition.

Mercy Killing

It has been a long battle, but a grand jury mercifully put an end to Attorney General Foti's misguided prosecution of Dr. Pou and two nurses from Memorial hospital who stood accused of killing several terminally ill patients during Hurricane Katrina. Score one for common sense. As for the Attorney General's Office witch hunters that still gripe that these were "homicides," the grand jury is the judge of that, so quit the grandstanding.

PD Update

Several people have asked me about the current state of affairs in New Orleans. This article provides a good summary of the public defender system. In short, it is on the right track, but it has a way to go. Having worked with some of the people named in the article, I can assure you it is in good hands.

Crime Solution: A Group Hug

A glass of red wine a day supposedly keeps your heart in order. Who knew a little wine and cheese, coupled with a group hug, could ward off crime. This story is unbelievable, but true.

Vitter's Vittles

We're all tired of sanctimonious lawmakers being outed for their own indiscretions, and probably equally tired of hearing that we should care about what politicians do in the privacy of their own bedrooms (or offices). But Ann Althouse makes a compelling point about the imbalance between Senator Vitter's self-pardon and the continuing prosecution of the madam who allegedly served him.

Trading Places

The President has commuted the sentence of I. Lewis "Scooter" Libby, who stands convicted of perjury and obstruction of justice. This means Libby remains, nominally, a convicted felon, but he has been spared the inconvenience of a two-and-a-half year jail sentence. He still has to pay a $250,000 fine, but surely the defense fund his well-heeled cronies have managed to scrape together will cover that. And even if he has trouble finding work in the public sphere -- the public he supposedly so lovingly served, save Valerie Plame and the rule of law -- I trust he'll be able to cash in on his connections and land some million-dollar-a-year job working for the likes of Halliburton. If only every felon had it so tough.

The case can be made that Mr. Libby is a decent man and dedicated public servant who was unfairly scapegoated for a failed war policy. It also could be argued that his mild manner and low public profile merely shielded from scrutiny most of his behind-the-scenes evil industry. Your partisan compass likely will dictate which pole has the greater gravitational force of truth. But the rule of law is not so much about truth as it is about judgment and order.

Mr. Libby was adjudged a criminal unanimously by a jury of twelve men and women. The jury, we must presume, had no political bone to pick and no score to settle. They had only facts to judge as challenged and filtered by the best legal defense team available. Mr. Libby was free to compel any witness he desired to testify on his behalf. All men are equals before the law, and even then Mr. Libby likely enjoyed vastly superior resources than just about any other defendant who passes through the system to face even more serious charges. Only Mr. Libby knows exactly what he did and what he intended, but it is left to the legal system -- not political pundits, professional or not -- to sit in judgment and delineate right from wrong.

The President's decision to commute a sentence (be it Mr. Libby's or anyone else's) disrupts the ordered scheme of justice. It is a power that presidents are expected to use sparingly to correct injustices inflicted by the system. And that, of course, is precisely the rub. Mr. Libby's case is not one truly about justice; it is a case about the political compass. (And I do not mean to suggest Mr. Libby's case is any different in that regard than other controversial pardons and commutations.) Sure, Mr. Libby's fate may seem harsh and unfair, but explain that to all the other persons who are convicted of more minor offenses on more slender facts but without all the political fanfare. If only every petty criminal who is unfairly convicted and faces prolonged incarceration had the benefit of political allies (or really any allies) who could wipe away their unfair sentences with the wave of a hand. Surely they all would gladly trade places with Mr. Libby.

Prescription for a Healthcare Crisis

The first law of medicine is to do no harm to one's patient. The second should be not to let politicians make medical decisions lest you harm the profession, thereby harming patients. A doctor and some nurses in New Orleans stand accused of violating the first. Their accusers -- Louisiana's elected Attorney General Charles Foti and Orleans Parish D.A. Eddie Jordan -- have violated the second.

This story, like so many others, begins with Hurricane Katrina. Dr. Anna Pou, an ear, nose and throat specialist who specialized in head and neck cancers, and nurses Lori L. Budo and Cheri Landry were working at Memorial Hospital in New Orleans in the wake of Hurricane Katrina. They each have been charged with murder for the supposed mercy killings (euthanasia) of four cancer patients who died in their care shortly after the Hurricane. What is remarkable is not that the patients died, but that they lasted so long.

Conditions at the hospital were deplorable by even third-world standards. The hospital's first floor was flooded with ten feet of water. There was no electricity, and temperatures inside reached 110 degrees. Public officials told the doctors inside that evacuating the hospital was not a high priority while other citizens were stranded on rooftops. There were many reports of gunshots in the vicinity. The four patients in question were patients of a company called Lifecare, which ran an acute care facility for the critically ill. Dr. Pou and her staff tended to these patients after there own assigned doctor failed to show up. If illness alone didn't kill the patients -- and at least 34 died that week -- then dehydration, lack of medicine, and despair certainly could have been contributing factors.

The doctor and nurses say they did no more than comfort patients in pain -- traditional palliative care. The Orleans Parish Coroner has already ruled that the deaths were "undetermined," meaning that the available evidence does not support a finding of homicide. That should end of the inquiry. But where science has left off, politics evidently takes charge.

The State evidently has a weak case. Apparently unable to secure an indictment, DA Eddie Jordan has offered the nurses immunity from prosecution in exchange for their grand jury testimony. (Otherwise, facing prosecution, they have no obligation to testify for fear of self incrimination.) In my experience, prosecutors offer immunity deals when they have no other evidence on which to rely. There still is no guarantee the nurses will implicate Dr. Pou. They are obligated only to testify truthfully, which means they may well bolster her defense.

Even if there's an indictment, I think this case will be a hard sell to the jury. The facts are murky at best, and there will be a tremendous amount of sympathy for the doctor and nurses who stayed behind to help. The jury (and anyone else) surely will ask, "Where was the assigned doctor? Where were the rescuers? Where were the family members that were so concerned for their loved ones? Where were Eddie Jordan and Charles Foti when the hospital was under siege. What more could these doctors and nurses possibly have done? Would you want your loved ones to continue to suffer under these circumstances?"

It is unclear why these charges are being pursued. Is is political pandering? Are elected prosecutors trying to impose new heroic medicine standards? And why so aggressively prosecute this kind of case when prosecutors seem either uninterested in or bungle prosecutions for violent street crimes? Whatever the reason, it surely will forever damage the medical profession in Louisiana. What doctors are ever going to want to stay behind in time of need if they will face second-guessing and, worse, criminal prosecution? Apparently the assigned doctors who left their posts get a free pass. I suppose it's no wonder that healthcare professionals are not exactly flocking to work in Louisiana. I hope voters feel assured in the future when they sit patiently in the emergency room and hear "Dr. Foti will see you now."

Out in the Cold

The only surprise about Congressman Bill Jefferson's indictment on bribery charges is how long it took the government to file charges. Mr. Jefferson stands accused of using his office to solicit bribes in connection with business deals in Africa, and the $90,000 in marked bills found in his freezer should put the deep freeze on his defense. Unless he can pull off an Edwin Edwards defense a la Houdini, you can score this one for the prosecution.

If the charges are true -- hardly a stretch -- then Mr. Jefferson deserves a stiff sentence. Even if he beats the rap, it still seems to me that Mr. Jefferson needs a lesson in ethics. Whether there's a conviction or not, however, the public still seems to pay the price. For the skeptics and critics, Mr. Jefferson is just the latest example of a corrupt Louisiana politician. For the naive, willfully blind, and plain ignorant people who re-elected him, their faith seems to have been rewarded with nothing more than disgrace and distrust visited upon a City that already struggles to earn the nation's good graces. And for everyone else, an "I told you so" and out in the cold as usual.

The Case for New Orleans

“It's not our fault!” In fits of finger pointing and a rhetorical flourish in his first State of the City address since before Hurricane Katrina, Mayor C. Ray Nagin laid bare the guiding principle of his recovery plan for the City.

If only the State and Federal governments would open the spigot and let the money flow, we could rebuild our hopes and dreams. If only there were a boundless ocean of resources, New Orleans’ problems would be solved. Better yet, if only we had a leader with a clue, we could dig ourselves out of this hole.

I don’t pretend that solving the City’s problems is easy, and I give the Mayor credit for his boundless optimism, but there’s a real difference between unbridled wishful thinking and reality-based planning. To be sure, New Orleans needs more money. But recovery must begin with coherent vision and realistic, definable goals before the money will start flowing from Washington (or Baton Rouge).

Mayor Nagin’s “plan” for the City seems nothing more than fixing potholes, sweeping up the trash, and hoping that the City stays afloat long enough for “market forces” to dictate the future. (His self-proclaimed crowning achievement seems to be a grossly over-priced sanitation contract. Yes, the streets are remarkably clean, but the contract seems to have done no more than prove the old adage that you get what you pay for.) In March, the Mayor unveiled a plan to invest more than a billion public dollars into recovery projects in 17 target zones across the City, but nary a word about it in his address leaves one to wonder if this plan is destined for the growing heap of aspirations that never take shape into full-blown plans.

And what is his vision for the City? Naturally, the displaced want to return to the “way things used to be,” but simply rebuilding the same old structures with the same inefficient and inept systems cannot be the answer. That is particularly true when you are trying to attract people old and new who are tired of the old ways. If you want to build a ship, don't gather the people to collect wood and assign them tasks; you have to teach them to long for the endless immensity of the sea. (Antoine de Saint-Exupery.) We need a vision that is inspired, not tired, and a plan that is workable, not mere pipe dream.

At bottom, Mayor Nagin’s plan is no plan at all, his vision has no imagination. Indeed, other than wistfully aiming to reconstitute the pre-storm City, the Mayor seems utterly incapable of sketching out a realistic vision of a leaner, smaller City in the post-storm world. A real plan undoubtedly requires making difficult decisions – which parts of the City should be rebuilt? – but leadership requires making decisions that cannot please everyone. Unfortunately Mayor Nagin is paralyzed by indecision, perhaps for fear of offending any of his constituents.

It is disappointing that Mayor Nagin would use the State of the City address as a platform for finger-pointing rants – “It’s not our fault” – rather than articulating a coherent vision and viable plan for the City’s recovery, nearly two years after the City was hobbled. Blameless or not, the City still has to make its case that it deserves assistance. Even more it needs to convince the outside world that they should want to help and play a part in the revival of a great American city.

Farewell to Arms

My tour of duty in New Orleans has come to an end. I have mixed emotions about leaving. I thoroughly enjoyed the work, as frustrating as it proved to be much of the time. It was a sincere pleasure to help those who needed help navigating a system that it not always friendly, much less fair. Above all, I mostly enjoyed working with a number of people who are dedicated, passionate, and smart professionals. I do not always agree with some of them (mostly my opponents, but sometimes my colleagues), but I am convinced that we all share common goals even if we can't agree on the best approaches. I just wish I could stay to continue the mission.

In some sense, of course, it is a relief to leave behind the chaos and daily exercise in senseless brutality on the streets of my beloved city. After six months in the trenches, it is time to return to my regular life and take time to reflect from a safe distance. But I know, as Hemingway's protagonist observed, there is no finish to war.

I wonder whether it's a love affair with the local culture -- the food, music, art, people -- that allows locals seemingly to ignore the aura of despair -- violence, poverty, decay. Is there such inevitability, whether the nemesis be a hurricane or a stray bullet, that everyone just prefers to immerse themselves deeply in their affections. Is there no escape, only indifference and diversion?

No, I think there is more. There is meaning in the daily struggle, and there is work to be done. Take inspiration in the perseverance of the people who strive to make New Orleans, or anywhere, a better place. And do not take the place for granted. Its unique culture is precisely what makes it worth fighting for.