Fred Heebe, a Louisiana landfill owner, has filed an interesting defamation lawsuit against a federal prosecutor who he claims has used anonymous identities to trash him on the Internet. Using a former FBI forensic linguist expert, Heebe has shown remarkable similarities between language used in filings by Assistant U.S. Attorney Sal Perricone and statements written by someone on media websites under the name “Henry L. Mencken1951.” With the finding that the language overlap “strongly indicates” Perricone, Heebe has filed suit and issued subpeonas. The federal case involves alleged bribes (including an almost $500,000 bribe to a state official) to close a rival landfill in Gretna, Louisiana. Heebe however was never charged with a crime. Perricone, 61, has since resigned after 21 years as a prosecutor but an investigation continues at the Justice Department as well as the civil lawsuit. He recently admitted to posting hundreds of comments.
The former FBI profiler James Fitzgerald noted the repeated use of alliteration and obscure words, such as “dubiety” and “redoubt” as pointing to the prosecutor. Notably, Perricone was also born in 1951.
The comments relate to cases handled by the U.S. attorney’s office and discuss a fine level of detail of those cases. Notably, the lawsuit criticizes Letten for appearing to take credit for cases at the expense of assistant U.S. attorneys and FBI agents. It also contained allegedly libelous statements such as “Heebe comes from a long line of corruptors,” or “If Heebe had one firing synapse, he would go speak to Letten’s posse and purge himself of this sordid episode.” The poster also alleges that Heebe had bought the silence of Parish President Aaron Broussard by paying for his defense in a fraud investigation. [Note: there was an earlier reference to a critical comment directed at Assistant U.S. Attorney Jan Mann in the lawsuit. Mann, who was the most senior prosecutor in the office, is not criticized in the lawsuit and indeed is referenced in one of the cited comments as "the brains" behind one of the cases).
District Judge Tiffany Chase has been asked to issue subpoenas for Perricone and Assistant U.S. Attorney James Mann.
Private counsel often complain about federal prosecutors leaking information to the media to pressure or harass targets. The Justice Department is notorious for its lack of effort to investigate such claims. However, faced with the lawsuit and the forensic evidence, U.S. Attorney Jim Letten has asked the Justice Department's Office of Professional Responsibility to investigate.
Notably, Perricone also attacked public figures like referring to President Obama's “West Wing band of Bolsheviks." He also wrote that one federal judge “loves killer [sic]” and “We all know that Federal judges are NOT selected for their erudition but for their relationship with politicians.” Such comments would be entirely protected in anonymous posting as his private opinion in my view. However, there were other allegations that under the name “legacyusa,” Perricone has urged gun-owners to visit the Park Island home of then-Mayor Ray Nagin.
We recently saw a Michigan prosecutor fired for his online attacks on a college student. Andrew Shirvell, a former Michigan assistant attorney general, was hit with a $4.5 million damage award recently from a jury who found that he defamed and caused emotional distress to Christopher Armstrong, a University of Michigan 2011 graduate. Shirvell campaigned against Armstrong, who is openly gay, after Armstrong became University of Michigan’s student body president. Notably, Shirvell had refused to settle the matter with an apology and retraction. He is quoted as saying “There’s no way I could possibly ever pay such a judgment.” For more on that story: ABA Journal. For me the case raised free speech questions but also involved conduct that came close to stalking.
I do believe that prosecutors have the right to free speech, particularly in anonymous postings that do not rely on information from or their position with the government. That is not the case in the Louisiana matter where the former prosecutor is being accused of harassing a target and using information from his investigation. However, it is worth noting that the information appears to have been publicly available and not derived from the grand jury (which would constitute a crime under Rule 6(e)).
In his most recent comments, Perricone said that he resigned a few days after disclosing his conduct to the U.S. Attorney. He says that he wants to return to practicing law and is writing a fictional book with some “strangely familiar” characters. If so, he might want to get a legal review before triggering another defamation lawsuit. While it is unclear what the book is about, there are a long line of “fictional” works that are the basis for defamation lawsuits by people who say characters were a bit too “familiar.”