Patterico's Pontifications

5/29/2010

Destroyed by Court Order: The Footage of a Landrieu Staffer Admitting the Senator’s Office Had No Problem With Their Phones

Filed under: ACORN/O'Keefe,General — Patterico @ 9:35 am

I recently reported that the judge in James O’Keefe’s criminal case ordered the destruction of the footage of James O’Keefe’s entry into Senator Mary Landrieu’s offices. O’Keefe has confirmed on Twitter that the Government returned his recording equipment, but deleted the footage from inside Sen. Landrieu’s offices.

This is especially concerning in light of the recent publication of court documents in which the Government admits that a member of Landrieu’s staff had told O’Keefe’s companions, on tape, that there had been no problem with the phones:

One of Senator Landrieu’s staff members (WITNESS 1) told BASEL and FLANAGAN that she did not report any phone problems and that the office was not experiencing any issues with the phone system.

I’m interested in the First Amendment implications of a court ordering the destruction of a copyrighted work with possible political relevance — with no apparent statutory authority, plea agreement provision, or national security concern to justify it.

I know of no law that justifies destruction of the taped footage. The federal forfeiture statute has no application. It applies only to crimes “punishable by imprisonment for more than one year” — in other words, felonies. Instead, O’Keefe pled to a misdemeanor punishable by a maximum sentence of 6 months. The forfeiture statute does not apply to such misdemeanors, and did not provide the Government with authority to retain the footage.

Surrendering the footage was not part of the plea agreement. You can read the plea agreement here. It contains no provision requiring surrender of the footage.

Finally, there is nothing in the footage that would be dangerous if leaked. O’Keefe has confirmed to me that he and his companions accessed only the public reception area of Landrieu’s office. Any member of the public could walk into the places that they walked. There are no deep dark secrets that the terrorists would learn upon viewing such footage.

In addition to the lack of justification for destroying the footage, we have a positive reason that it should have been turned over long ago: namely, this was potentially exculpatory evidence in O’Keefe’s criminal case. The Government has now admitted, in court documents signed by the Government lawyer, that the evidence shows O’Keefe’s intent was “not to actually tamper with the phone system, or to commit any other felony” but rather “to orchestrate a conversation about phone calls to the Senator’s staff and capture the conversation on video.” This means that the tape recording made by O’Keefe, when viewed in the light of O’Keefe’s history as an undercover video journalist, did not support the Government’s original charge that O’Keefe entered with the intent to commit a felony.

It sure sounds like the tape was exculpatory evidence, which the Constitution requires prosecutors to turn over immediately. Instead, they held on to the tape, and agreed after about two months to reduce the charge to a misdemeanor, which is all they could ever prove anyway.

It seems fairly obvious to me that the First Amendment would prohibit the judge from returning the footage to O’Keefe, and then ordering him not to publish it. Yet he managed to accomplish the same thing in ordering its destruction.

Now, the public will never learn what was on that footage. The footage would have revealed much about the soundness of the Government’s charges against O’Keefe. And, as the Government admits in court documents, it would have shown a member of Sen. Landrieu’s staff denying that there was any problem with the phones.

What possible justification is there for destroying such evidence? Any First Amendment experts want to weigh in?

UPDATE: Thanks to Instapundit for the link. Readers might also be interested in James O’Keefe’s first full public account of the New Orleans events, which I have published here.

Plenty more recent news on this story breaking in my ACORN/O’Keefe category.

31 Responses to “Destroyed by Court Order: The Footage of a Landrieu Staffer Admitting the Senator’s Office Had No Problem With Their Phones”

  1. I only believe what Brad Friedman tells me to.

    Comment by Chrissy Horton Hears a Who

    Dmac (3d61d9)

  2. And the left talked about an overweening federal government under GW Bush. Not even close lefties, not even close!

    GM Roper (6afe02)

  3. Were motions put in place by O’Keefe’s lawyer to prevent the destruction of said footage before it was destroyed?

    Breitbartfan77 (6bd10f)

  4. Perhaps someone from Landreau’s office called the police and asked for a favor?

    Patricia (160852)

  5. US District Judges appointed by Republicans believe they are God.

    US District Judges appointed by Democrats believe they are bigger than God.

    The federal judiciary ought to be term limited.

    tryptic (379e84)

  6. A question for the lawyers – if the judge, in ordering the destruction of the footage, can be shown to have broken a law, is he:

    a – Subject to being charge with a crime and prosecuted, and;
    b – subject to impeachment?

    Horatio (55069c)

  7. Just another page in the encylopedia of corruption that is our American government.

    Once it’s erased, we can weasel around and make declarations about what should have happened all we want, right? As long as NOBODY SEES THAT TAPE… the ghost of Richard Nixon is with the Dems now.

    dave in dallas (11e1b5)

  8. It is possible that the data was not actually erased. Most computers do not actually overwrite the stored data when the file is deleted, but just mark the file as having been erased. It’s a simple task to “undelete” the file.

    If the video camera uses a FAT filesystem (there’s a good chance of this), and if the prosecutor’s office simply erased the files per the camera’s menu function, then O’Keefe’s video may still be accessible.

    Borepatch (da012c)

  9. Is this more of that Obama promised ‘government transparency or has it always been like that?

    juandos (13a196)

  10. There’s quite a bit of chatter about this, so it’s likely that if O’Keefe hasn’t used the video recorder (much, he might indeed be able to get his video back.

    It actually makes sense for the camera manufacturers to allow this capability, because of all of the “Oh damn, I just erased the baby pix!” events.

    I guess it all depends on how technically savvy the prosecutor’s office is about proper data destruction methods. Probably not very.

    Borepatch (da012c)

  11. Borepatch,

    I think it would be safe to assume that O’Keefe is looking into such possibilities.

    Patterico (c218bd)

  12. Surrendering the footage was not part of the plea agreement.

    perhaps it was verbal…..like the judge’s repeated admonitions to the teabuggers.

    [Nope. — P]

    wheeler's cat (ed4ec5)

  13. @ #3. I was wondering the same thing. Why would they let that happen if they could do something to stop it?

    Matador (ac73ca)

  14. So what does O’Keefe intend to do about it?

    Chris Martin (7120ad)

  15. Why so serious, O Honest Man?
    what do u think there is on those tapes, Patterico?
    magical rasmussen statistics?
    More fake-umentary footage for Breitbarts site?
    You already lost.
    You lost when Obama got elected 365 to 173.
    You are ghostdancers…. hoping for that magical steam engine full of winchesters cultural and demographic revelance that will save white christian conservatism from extinction.
    It aint coming.
    :)

    wheeler's cat (ed4ec5)

  16. My guess is that the lawyer didn’t speak up because he was dealing with a judge and an office that had demonstrated bias towards O’Keefe already and he didn’t want to screw up a no jail time misdemeanor deal.

    O’Keefe should not have had to file any motions. He should have had the tape from the beginning. And it never should have been ordered destroyed. Why put the onus on HIM when the judge acted without authority and the prosecutors failed to disclose potentially exculpatory evidence??

    Patterico (c218bd)

  17. I believe that Jan Maselli’s husband is the computer crimes unit director for that office

    EricPWJohnson (cedf1d)

  18. i imagine there was a verbal, Patterico.
    the judge verbally admonished OKeefe about practicing journalism, and not propaganda.
    the tapes were not journalism, but spin.
    i’d ask O’Keefe what he agreed to, before he makes you all look very very stupid.

    [Uh, I already have, griefer. I’m no the one who looks stupid here. One of us has repeatedly made assertions with no evidence. I won’t say which one of us it is … but here’s a hint: it’s not me. xoxo, P]

    wheeler's cat (ed4ec5)

  19. Proof of actual innocence, is what I suspect, and it will be beyond interesting if it was not completely erased, which is not always the easiest thing to do with flash memory, especially if you don’t know what you’re doing. Well, “erase” is easy; I think the government was hopping for “purged”, non-recoverable erasure.

    Lawyers should file motions requesting that judges not destroy defendant’s private property in the court’s possession? What country is this?

    htom (412a17)

  20. As Borepatch said above, when I wanted to clean a computer of work-related medical files, I used software that (claimed) to erase and write over stored files multiple times. I would guess if the info deletion wasn’t an official action handled by experts it might still exist somewhere. For the right price incredible things can be done to retrieve data.

    I’m assuming we don’t (yet) have anything like an official court statement on the confiscation/destruction (?) of the information?

    In my naivete’ I’m wondering:
    1) What, if any, possible actions exist if indeed the judge wrongfully had the information destroyed?
    2) What, if any, possible claims O’Keefe and others may have in regards to being charged with a felony if, indeed, there was no evidence for such. (This from other thread). Were they charged with a felony based on accounts from Landrieu’s staff (asking to access the communications closet) that were unable to be substantiated, or perhaps were “embellishment” to begin with?

    Maybe yet we will find that O’Keefe’s actions were not as foolhardy as those of others that day. Maybe they pled guilty to the misdemeanor to get that settled in order to move on to other topics.

    Yogi Berra made the quote, “It ain’t over until the fat lady sings” in comparing sports to opera. I’m wondering what would be an equivalent saying in law. “It ain’t over until the statute of limitations runs out”, “It ain’t over until your client runs out of money”, “It ain’t over until a new prosecutor becomes responsible for the case”?

    MD in Philly (3d3f72)

  21. Maybe I missed it, but does the judge have a name? Just a guess, but I bet people are interested.

    Thanks.

    TellMeTrue (76a837)

  22. More proof that the Rule of Law has been dismantled. In my view, the dismantling of the Rule of Law is the most dangerous of all. We have nothing to go by without it. Even precedent can and will be cast aside.

    We’ve seen this happen repeatedly, now, but I still am shocked and repulsed by it.

    What amazes me is that so many of those who previously upheld the Rule of Law have no problem dishonoring it, it appears, at the mere change of administrations.

    Do these people lack principles, scruples – or do they lack something far more sinister?

    Susan T (002690)

  23. Stop. Everybody. Read #8.

    Don’t let it get lost in the noise.

    What I Think (bed45c)

  24. It’s called a coverup, Landrieu was dodging public
    opinion, pretending there was some great groundswell
    there was no such animal

    ian cormac (ee040c)

  25. What I find bogus about this whole scenario is that O’Keefe is blasted in the media for dressing up as a telephone repair man in an effort to get a story, while groups like the Yes Men have outright lied and claimed to represent the the Chamber of Commerce, HUD etc… When they do it, the media laughs it off as a prank (Rachael Maddow commented that the Chamber of Commerce got punked after the group misrepresented themselves and declared a change in policy).

    I think it is pathetic the double standard that is clearly seen. Why is it different when the Yes Men misrepresent themselves as government officials (it is all just a big joke), but when O’Keefe attempts to do something (which I think is arguably quite similar) it is “Watergate Jr.” and a “crime.”

    Steve (98c693)

  26. Hopefully there are digital experts out there who can recover the data.

    verbatim (940536)

  27. It may be somewhat of a stretch, but this is probably as bad as the Garrison witchhunt

    ian cormac (ee040c)

  28. If the tape was exculpatory though, then why did O’Keefe plead guilty instead of going to trial?

    Adam (New York) (9b0799)

  29. Adam (New York) – What was the tape exculpatory of, other than O’Keefe did not intend to commit a felony, which the feds admitted they had no evidence of anyway?

    daleyrocks (1d0d98)

  30. Hey Patterico:

    Wasn’t that lunatic nishi banned/moderated for calling a poster a racist?

    I think that, and the Vogon poetry, are reason enough to let her find someplace else to post. Just my opinion.

    Seriously, the weird free verse and clearly drug addled posts are just plain creepy. Add to it the juvenile “I won” business…and why is she wasting those electrons. Carbon emissions are involved!

    Eric Blair (3b9553)

  31. I’m not sure why the tape was destroyed, but one rationale would be that the tape was procured as part of a criminal endeavor, and the judge might have viewed it as contraband.

    Further, it’s not “exculpatory” because O’Keefe was never charged with a felony. A criminal “complaint” is not a charging document in federal court. No case can proceed on a complaint — there must be an information or indictment for a case to go forward.

    So, until the Information was filed charging him with a misdemeanor, there were no charges pending. The criminal complaint only subjects the defendant to arrest and bail — nothing more.

    Same thing happens when local cops arrest you but the local DA declines to prosecute. You’re arrested but never charged.

    shipwreckedcrew (436eab)


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