First Amendment Rights of a Political Target: A guest post by Carl Bernofsky

One cannot reason with a prosecutor whose fixation on his quarry has blinded him to all else. That is, unless you are a federal judge who can see past the target, put it in proper perspective, and exercise the authority necessary to deny the hunter his prize.

The dogged pursuit of New Orleans attorney Ashton R. O’Dwyer Jr. by U.S. Attorney Jim Letten over a now-famous e-mail currently rests with the U.S. Court of Appeals for the Fifth Circuit, which will decide whether to confirm the lower court’s decision to dismiss the case or accede to the government’s demand to try the case in front of a jury.

This case centers around an e-mail sent by O’Dwyer on Friday, Jan. 29, 2010 to Sean McGinn, Case Manager for Judge Jerry Brown of the Bankruptcy Court for the Eastern District of Louisiana. O’Dwyer had filed for bankruptcy and was under court order to request permission to spend money from his Social Security check. Of the five e-mails he exchanged with McGinn that day, one asked McGinn to remind Judge Brown that he had been out of his antidepressant medication for some time and was unable to pay for a refill. That email read in part:

“I could not sleep last night, which I attribute to the effects of abruptly stopping my medication on Sunday, the 24th (my pills ‘ran out’, and I have no money to purchase more). Maybe my creditors would benefit from my suicide, but suppose I become “homicidal”? Given the recent ‘security breach‘ at 500 Poydras Street, a number of scoundrels might be at risk if I DO become homicidal. Please ask His Honor to consider allowing me to refill my prescription at Walgreen’s, and allowing me to pay them, which is a condition for my obtaining a refill.”

When McGinn received that e-mail, he contacted U.S. Marshals, who showed up nearly 9-1/2 hours later that same evening at O’Dwyer’s door, ostensibly to escort him to Walgreen’s. However, once outside his residence, O’Dwyer was met by at least six FBI agents, who arrested him on a charge of violating the federal anti-threat law, Title 18, U.S.C. Sec. 875(c), relieved him of his personal firearm, and took him directly to St. Bernard Parish Prison in Chalmette, Louisiana.

According to a detailed Criminal Complaint,¹ which was ready the next day, the FBI was being provided information about O’Dwyer by Special Agents and Task Force Officers assigned to the FBI New Orleans Violent Crime Task Force, and in 2008, the U.S. Marshal’s Service had opened an “inappropriate communications“ investigation of O’Dwyer. This Criminal Complaint had apparently been prepared and was waiting for O’Dwyer to provide a pretext for its service.

Surveillance of O’Dwyer’s personal communications appears to have been conducted for years because the Criminal Complaint, signed by Magistrate Judge Daniel E. Knowles, III and docketed on Saturday, Jan. 30, 2010 – a day when the Court is normally closed – contained a collection of preselected messages dating back from Aug. 30, 2007.¹ The messages were laced with profanity and racial epithets – constitutionally protected speech B certain to impact negatively on O’Dwyer should the case ever come to trial with a New Orleans jury.

That Saturday afternoon, the medication that O’Dwyer had been trying to obtain the previous day was finally given to him B in prison.

Following a contentious detention hearing on Monday, Feb. 1, 2010, U.S. Magistrate Judge Louis Moore, Jr. ordered O’Dwyer returned to St. Bernard Parish Prison,² where he was subjected to psychiatric evaluation and kept in solitary confinement for weeks while his court-appointed Public Defenders prepared his defense and attempted to have him released on bond.

O’Dwyer entered a plea of not guilty in response to the government’s charge of threatening public officials, and he argued that the allegedly threatening e-mail that prosecutors focused on was only a cry for help, and that the language used was an attempt to get Judge Brown’s attention after an earlier e-mail to the Judge’s Clerk had been ignored. It was never intended to convey a true threat.

At O’Dwyer’s request, and because of their previous involvement with him, all of the District Court judges from the Eastern District of Louisiana recused themselves from hearing the government’s criminal case against him. U.S. District Judge Donald E. Walter and Magistrate Judge Karen L. Hayes of the Western District of Louisiana then accepted responsibility for adjudicating this case.

Through his team of able Public Defenders at an extensive detention hearing in front of Magistrate Hayes, O’Dwyer appealed his detention and arbitrated the terms of his release.³ He was freed on Mar. 4, 2010, after having spent 34 days in solitary confinement.

The government, however, was still determined to have him sent back to prison, and the next three months witnessed a flood of motions and counter motions, arguments and counter arguments. During that time, O’Dwyer remained restricted by the terms of his release.

Ultimately, O’Dwyer prevailed when Judge Walter granted his motion to dismiss the government’s indictment in his June 24, 2010 opinion.⁴ Walter observed that O’Dwyer had a history of sending e-mails in which he would use coarse language but make no threats, and that O’Dwyer’s statements in his email of Jan. 29, 2010 did not compare to the “explicit threats” made in other threat cases decided by the 5th Circuit. Walter concluded:

“While the Defendant’s language may be inappropriate, this Court does not find that the plain language of the allegedly threatening e-mail even rises to that of a threat let alone a true threat.”

Judge Walter’s decision supports the principle that, in true threat cases, the court will weigh the words carefully and consider matters on a case-by-case basis. Walter appears to have little sympathy for those who actually pose a credible threat against judges, for on Dec. 21, 2010, he sentenced Internet blogger and radio host Harold “Hal” Turner to 33 months in jail for threatening judges on his Web site.⁵

Immediately upon learning of Judge Walter’s dismissal of the government’s indictment against O’Dwyer, U.S. Attorney Letten’s office gave notice of its intention to appeal, and on Nov. 29, 2010, the government filed its brief with the 5th Circuit Court of Appeals.⁶ One may reasonably question whether the motive behind the government’s aggressive pursuit of O’Dwyer is political in nature and designed to silence the outspoken attorney who has been critical of how litigation on behalf of Katrina victims has been conducted.

The primary objective of the government now is to bring O’Dwyer to a jury trial where it can argue that his coarse language – which springs, in part, from his outrage at the brutal treatment he suffered at the hands of law enforcement⁷ and the judicial system in the aftermath of Katrina B demands that he be stripped of his freedom and removed from society. The penalty for violating the federal anti-threat law is a maximum of five years imprisonment followed by three years of supervised release, a fine of up to $250,000, or both.

On Jan. 21, 2011, O’Dwyer filed his brief opposing the government’s determination to continue prosecuting him.⁸ It is now up to the 5th Circuit Court of Appeals to decide whether to affirm Judge Walter’s dismissal of the federal government’s case against O’Dwyer, or subject him and the public to the spectacle of a jury trial over a desperate plea to refill a needed prescription.

Carl Bernofsky

References:

1. Criminal Complaint, United States v. O’Dwyer, Case No. 10-mj-00014, ED La., Doc. 1, January 30, 2010.

2. Hearing on Appointment of Counsel and Detention Hearing, United States v. O’Dwyer, Case No. 10-mj-00014, ED La., Doc. 12, February 2, 2010.

3. Detention Hearing and Government’s Motion for a Psychiatric Evaluation, United States v. O’Dwyer, Case No. 10-cr-00034, ED La., Doc. 78, March 4, 2010.

4. Memorandum Ruling, United States v. O’Dwyer, Case No. 10-cr-00034, ED La., Doc. 72, June 24, 2010.

5. Mark Fass, Blogger Who Threatened Lives of Federal Judges Gets 33 Months in Prison, New York Lawyer, December 22, 2010 (http://www.nylj.com/nylawyer/news/10/12/122210c.html).

6. Brief for Appellant, the United States of America, United States v. O’Dwyer, Case No. 10-30701 (5th Cir. 2010), November 29, 2010.

7. Carl Bernofsky, Police State Comes to New Orleans, Tulanelink.com, June 28, 2010, (http://www.tulanelink.com/stories/o%27dwyer_10a.htm).

8. Brief for Appellee, Ashton R. O’Dwyer, Jr., United States v. O’Dwyer, Case No. 10-30701 (5th Cir. 2010), January 21, 2011.

Professor Carl Bernofsky lives in Shreveport and is moderator of Tulanelink, an educational website that emphasizes judicial ethics.