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The Malicious Prosecution of Ashton R. O'Dwyer, Jr.
January 29, 2011 marked the first anniversary of the arrest of disbarred New Orleans attorney Ashton R. O'Dwyer, Jr. for an alleged threat he claims he never made.  It is the latest attempt by the government to silence the outspoken critic of the government's response to Katrina and the manner in which the ensuing litigation has proceded in federal court.  That alleged threat, made against targets neither named nor known, was merely a coarsely-worded plea seeking permission to pay for prescription medication that needed to be refilled.  This was clearly understood by the federal judge who reviewed the case.  He saw no intended threat and dismissed the government's criminal complaint.  The government's appeal of that judicial ruling, which now rests with the Fifth Circuit Court of Appeals, may be viewed as a Strategic Lawsuit Against Public Participation (SLAPP), intended to quash dissent and punish the dissenter.  In this case, however, the story had an unexpected ending.

O'Dwyer, a Political Target

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 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. The previous day, Thursday, Jan. 28, 2010, he sent the following e-mail to McGinn:

"Mr. McGinn: Everyday that my Plan which I believe was file[d] about a week ago, is not available on PACER, the Public is deprived of knowledge in a Court of record. I cannot afford PACER anymore, and my former account is disabled. As will be apparent from a Motion I filed yesterday, I have been without any funds, (i.e., money) for the past few weeks. Accordingly, I could not afford for a copy of my Plan to be made at KINKO's prior to filing. PLEASE contact Chambers, and e-mail me my filed Plan, conformed with the date of filing, without further delay. I have received media inquiries to my Bankruptcy filing which I need my Plan to intelligently respond to. I also need to send my Plan to the Local Office of the Federal Bureau of Investigation. Since I do not want to be unjustly and erroneously accused of ex parte communications with the Court, please get this e-mail entered on PACER so that creditors and/or their counsel will know what I have asked you to do. Thank you."

Of the five e-mails O'Dwyer exchanged with McGinn, one asked McGinn to remind Judge Brown that he had been out of his anti-depressant medication for some time and was unable to pay for a refill. That notorious e-mail of Jan. 29, 2010, with the subject line "RE: Debtor's Reorganization Plan in Case No. 09-12627," read, in part:

"Also convey to Judge Brown a reminder that I have been totally without money since the weekend of January 8th, 9th, and 10th, and that I have been without my anti-depressant medication, for which I have sought leave to pay Walgreen's from my most recent Social Security check, since last weekend. 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 about 9-1/2 hours later that evening at O'Dwyer's door, ostensibly to escort him to Walgreen's. However, once outside his residence, O'Dwyer was met by six or more FBI agents, who arrested him on a charge of violating the federal anti-threat law, Title 18, U.S.C. Sec. 875(c). They also relieved him of his personal firearm and took him directly to St. Bernard Parish Prison in Chalmette, Louisiana.

According to the detailed Criminal Complaint,1 which was ready the next day, the FBI was being provided information about O'Dwyer for some time by "Special Agents and Task Force Officers assigned to the FBI New Orleans Violent Crime Task Force." Moreover, in 2008, the U.S. Marshal's Service had opened an "inappropriate communications" investigation of O'Dwyer. Apparently, the Criminal Complaint was already prepared and waiting for O'Dwyer to provide a pretext to be served.

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  Those messages were laced with profanity and racial epithets—speech that was constitutionally protected, but which would impact negatively on O'Dwyer should the case ever go to trial.

That Saturday afternoon, the medication O'Dwyer was trying to obtain the previous day was finally given to him—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 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. He argued that the allegedly threatening e-mail that prosecutors focused on was only a cry for help, and that the language he used was an attempt to get Judge Brown's attention after an earlier e-mail to the judge's clerk had been ignored by Brown. 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. Subsequently, U.S. District Judge Donald E. Walter and Magistrate Judge Karen L. Hayes of the Western District of Louisiana accepted responsibility for adjudicating the case.

Through his team of public defenders at an extensive detention hearing on Mar. 4, 2010, in front of Magistrate Hayes, O'Dwyer appealed his detention and arbitrated the terms of his release.3  He was freed that same day, after having spent 34 days in solitary confinement.

The government, however, was still determined to keep O'Dwyer in 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 Walter's June 24, 2010 opinion,4 the judge 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 e-mail 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 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 previously at the hands of law enforcement in the aftermath of Katrina7—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.

The lead attorney prosecuting O'Dwyer is Stephen A. Higginson, who has been nominated9 for a seat on the 5th Circuit Court of Appeals.10-11  Higginson's nomination, which is headed for confirmation by the full U.S. Senate,12 means that members of the appellate court will be passing judgment on a case in which their newest colleague's opinion has been widely publicized.

In a related case, the 9th Circuit Court of Appeals ruled on July 19, 2011 that a Southern California man who posted a racist rant on the Internet in 2008, suggesting that then-presidential candidate Barack Obama should be shot, was engaged in constitutionally protected free speech and should not have faced criminal charges.13  The man's vitriolic epithets, which were "particularly repugnant" because they endorsed violence, did not constitute a crime according to majority opinion of the federal appeals court,14 which overturned a lower court's decision two years earlier, which found the man guilty of a criminal offense.

In view of the 9th Circuit's recent opinion and the fact that the Federal District Court for the Western District of Louisiana already found O'Dwyer not guilty of a criminal offense, U.S. Attorney Jim Letten and U.S. Assistant Attorney Stephen A. Higginson should withdraw the U.S. government's petition to the 5th Circuit Court of Appeals, which challenges the lower court's opinion that O'Dwyer's comparatively benign e-mail did not constitute a credible threat.

On September 27, 2011, the 5th Circuit Court of Appeals affirmed the lower court's ruling that O'Dwyer's speech was not a true threat and was protected by the First Amendment.15  The appellate court's ruling came as a relief to O'Dwyer and his supporters and relieved any pressure the U.S. Senate may have had to question Higginson about the government's motives to imprison the former attorney.  Between October 3 and 20, 2011, the Senate approved 14 federal judges, including two for the Eastern District of Louisiana,16 suggesting that the appointment of Higginson may have been delayed pending resolution of the O'Dwyer fiasco.

The government has 90 days from September 27th in which to file for certiorari with the U.S. Supreme Court, and it is conceivable that Higginson's approval will go forward without further examination while the government is planning to file before the December 26, 2011 deadline.  Nevertheless, it would seem unlikely that the Supreme Court would accept, nor would U.S. Attorney Jim Letten be anxious to submit an appeal that might lead to questions about the refusal of the U.S. Attorney's Office to investigate O'Dwyer's claims of civil rights abuses at the hands of state law enforcement officers in the aftermath of Katrina in 2005.7

On October 31, 2011, the day that Higginson received the U.S. Senate's confirmation of his seat on the 5th Circuit Court of Appeals,17 O'Dwyer was visited by a special agent of the FBI accompanied by an officer of the New Orleans Police Department.  They returned his entire gun collection which had been confiscated by the State Police in connection with his abduction and incarceration at Camp Amtrak in 2005 in the aftermath of Hurricane Katrina.18  The gesture apparently acknowledged that O'Dwyer was no longer considered a threat by the government, and signaled that the U.S. Attorney's Office would not be seeking certiorari with the U.S. Supreme Court.  The unexpected visit was a judicious move on the part of the government and suggests the possibility that additional steps might lead to the acceptance of responsibility in the future.

However, O'Dwyer was not out of the woods for he soon received word that the Louisiana Supreme Court would seek to disbar him permanently from the practice of law.  On November 10, 2011, the Louisiana Board of Disciplinary Counsel informed O'Dwyer that formal charges had been filed against him, and he was ordered to submit his response to Hearing Committee No. 23, which would consider the charges against him.

O'Dwyer argued to recuse the entire disciplinary board on the basis of his (as yet unrefuted) assertion that Charles B. Plattsmier of the Office of the Disciplinary Counsel and Chief Justice Catherine D. Kimble of the State Supreme Court, which appoints the disciplinary board's members, were complicit in the events leading to his abduction, incarceration, brutalization and torture at Camp Amtrak on September 20, 2005.  The attempts to silence him, O'Dwyer asserted, were part of a cover-up, and thus it was not possible to receive a fair disciplinary hearing in the State of Louisiana.  Moving the disciplinary proceedings to another state was raised, although such change of venue in this type of case is unprecedented.

A formal meeting to hear O'Dwyer's recusal arguments was held on June 5, 2012 at the Jefferson Parish District Court for the 24th Judicial District, in Gretna, Louisiana.19

Carl Bernofsky
January 31, 2011
Rev. June 13, 2012


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 9, 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, accessed 12/22/2010.

  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, accessed 12/31/2011.

    See also: Carl Bernofsky and Shirley Bernofsky, "U.S. Citizen Ashton R. O'Dwyer, Jr., Part I: Abducted, Brutalized, Tortured, & Falsely Imprisoned," [Video], March 6, 2011, also viewable on YouTube, http://www.youtube.com/watch?v=tt1lgUNKBMQ.

    See also: Carl Bernofsky and Shirley Bernofsky, "U.S. Citizen Ashton R. O'Dwyer, Jr., Part IIA: Conspiracy and Betrayal," [Video], July 15, 2011, also viewable on YouTube, http://www.youtube.com/watch?v=cR69g-bDLC8.

    See also: Carl Bernofsky and Shirley Bernofsky, "U.S. Citizen Ashton R. O'Dwyer, Jr., Part IIB: Conspiracy and Complicity," [Video], October 14, 2011, also viewable on YouTube, http://www.youtube.com/watch?v=cLYZL6GbwEI.

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

  9. Jonathan Tilove, "Obama makes pick for federal appeals court; Higginson backed by Landrieu, Vitter," The Times-Picayune, New Orleans, May 6, 2011, p. A-4.

  10. Bruce Alpert and Jonathan Tilove, "On the Hill; News from the Louisiana delegation in the nation's capital, ...Nominee challenged...," The Times-Picayune, New Orleans, June 12, 2011, p. A-7.

  11. Carl Bernofsky, "Stephen Higginson Should Explain the U.S. Government's Motives in the Ashton O'Dwyer Case," OpEdNews, June 14, 2011, http://www.opednews.com/articles/Stephen-Higginson-Should-E-by-Carl-Bernofsky-110613-842.html, accessed 07/20/2011.

  12. Jonathan Tilove, "Higginson, Triche-Milazzo clear Senate's judiciary panel; But Louisiana picks could face long wait," The Times-Picayune, New Orleans, July 15, 2011, p. A-6.

  13. Carol J. Williams, "Court reverses conviction in online rant against Obama," Los Angeles Times [Online Edition], July 20, 2011, http://www.latimes.com/news/local/la-me-0720-obama-threat-20110720,0,7128388.story, accessed 07/22/2011.

  14. Opinion, United States v. Bagdasarian, Case No. 09-50529 (9th Cir. 2011), July 19, 2011.

  15. Opinion, United States v. Ashton R. O'Dwyer, Jr., Case No. 10-30701 (5th Cir. 2011), Sept. 27, 2011.

  16. Bruce Alpert, "Confirmation for federal judge might come slowly; Porteous case gives Senate pause," The Times-Picayune, New Orleans, October 20, 2011, p. A-5.

  17. See: Senate Session, October 31, 2011, C-SPAN2, www.c-spanvideo.org/videoLibrary/clip.php?appid=600745525.

  18. Ashton R. O'Dwyer, Jr., personal communication, October 31, 2011.

  19. In Re: Ashton R. O'Dwyer, Jr., Docket No. 10-DB-006, "Hearing on Motion to Disqualify and/or Recuse the Louisiana Disciplinary System in Its Entirety," [Transcript], Supreme Court of Louisiana, Louisiana Board of Disciplinary Counsel, Office of the Disciplinary Counsel, June 5, 2012.



An earlier version of this article appeared on January 26, 2011 in "SLABBED" [Blog], http://slabbed.wordpress.com/2011/01/26/first-amendment-rights-of-a-political-target-a-guest-post-by-carl-bernofsky/.  Video clips and court documents are reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit, educational purpose.



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