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The Malicious Prosecution of Ashton R. O'Dwyer, Jr.

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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 him.

O'Dwyer is an outspoken critic of the government's response to the 2005 Katrina disaster, and was the first attorney to file a class-action lawsuit against state officials in federal court on behalf of the storm's many victims. He also opposed many aspects of the Katrina litigation that ensued in federal court, and was disbarred for his dissident views and the profane language he employed to express them to the court. The reprisals against him have been ongoing for years, and prosecutors are now fixated on returning him to prison.

That alleged threat, made against targets neither named nor known, was a coarsely-worded plea that sought permission to pay for prescription medication that needed to be refilled. The federal judge who reviewed the case saw no intended threat and dismissed the government's criminal complaint. The federal government's decision to appeal that ruling may be viewed as a Strategic Lawsuit Against Public Participation (SLAPP), intended to quash dissent and punish the dissenter. It now rests with the U.S. Court of Appeals for the Fifth Circuit.

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 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), relieved him of his personal firearm, and took him directly to St. Bernard Parish Prison in Chalmette, Louisiana.

According to the detailed Criminal Complaint, which was ready the next day, the FBI had been receiving information about O'Dwyer for some time from "Special Agents and Task Force Officers assigned to the FBI New Orleans Violent Crime Task Force." Also, in 2008, the U.S. Marshal's Service had opened an "inappropriate communications" investigation of O'Dwyer. Apparently, the Criminal Complaint had already been prepared and was 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. 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 tried 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, 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 in front of Magistrate Hayes on Mar. 4, 2010, O'Dwyer appealed his detention and arbitrated the terms of his release. 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, 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. (Registration required)

Immediately upon learning of Judge Walter's dismissal of the government's indictment against O'Dwyer, U.S. Attorney Jim 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. 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.

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Carl Bernofsky, Ph.D., is a former professor of biochemistry at Tulane University and Mayo Graduate School of Medicine. He is the author or co-author of numerous scientific publications and was the recipient of major awards from national (more...)

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