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Attorneys for a Houma couple whose laptops and cell phones were seized in connection with a criminal defamation probe are asking that a federal judge shut down the entire investigation – at least temporarily – and have the property returned to their clients.
Papers filed Wednesday with the U.S. District Court for the Eastern District of Louisiana by attorney Jerri Smitko allege that the 1st and 4thAmendment rights of the plaintiffs, Wayne and Jennifer Anderson, have been violated by seizure of their devices. The filing is unusual in that the case is already headed for a state appeals court, following Terrebonne Parish District Court Judge Randy Bethancourt’s Aug. 5 refusal to quash a warrant authorizing the Aug. 2 search of the Andersons’ Houma residence.
The federal action brings a new dimension to an already complex case, which raised from obscurity a local self- described “watchdog” website with a related Facebook page under the fictitious name John Turner, containing suggestions of corruption against local officials to national attention. The laptops and cell phones were seized in connection with allegations that an unknown person violate a Louisiana statute that makes defamation a crime, on the complaint of insurance broker Tony Alford, who is mentioned in the posts. Neither of the Andersons has been named as a suspect in connection with the alleged criminal violation. But the Internet Provider address for the computers allegedly involved was linked their home.
“This court should immediately issue a temporary restraining order preventing Jerry Larpenter, and any of their authorized employees from proceeding with the criminal investigation of the criminal defamation complaint that is the subject of the search warrant issued,” the court papers state. “Pursuing the criminal investigation would create an irreparable injury along with the humiliation, embarrassment, and message to other citizens that exercising constitutionally protected speech could result in criminal prosecution, and violations of their 4th amendment rights. Plaintiffs’ civil rights complaint derives from criminal proceedings brought against them for expressions of protected speech. This restraining order serves the public interest by restraining curtailment of protected speech and upholding the protections granted by the 4th amendment.”
SHERIFF NOT INVOLVED
Although the court papers name Larpenter and his “agents” as a respondent or agents of the state, he is no longer involved with the investigation, which has been handed over to Louisiana Attorney General Jeff Landry.
“The parties have asked to enjoin Sheriff Larpenter from taking any other actions,” said the sheriff’s attorney, Bill Dodd. “Either the parties did not hear or did not understand what I said in open court and told to them in chambers, that the sheriff was out of the case before we even began the hearing on Aug. 5th.. The proper party for them to bring the action against at this time is the Attorney General, who has been asked to take over the prosecution if one ever exists, because nobody has been charged. He has been asked to take over the investigation in this matter.”
Dodd also questioned why the federal action was needed at all.
“Judge Bethancourt issued a stay in that hearing, meaning there would be no further action until the plaintiffs have a chance to take a writ application to the First Circuit Court of Appeal. Does that mean they think the First Circuit is incompetent or doesn’t understand the law? They’re asking a federal judge to do what Judge Bethancourt has already done.”
The laptops and the cell phones are currently in a safe at the office of Clerk of Court Theresa Robichaux, who said that when she placed them there they were in a single, sealed evidence bag. The safe being used, she said, is separate from the one usually used for evidence, to prevent any suggestion that law enforcement has access.
Ordinarily federal courts wait for matters to run their course in the state courts before stepping in, but in the filing special circumstances are alleged, in a request for a rare departure from the long-standing doctrine.
In the papers filed Wednesday, Smitko alleges that the federal court can take an action because the state has acted in bad faith, in a manner that has resulted in violation of federal constitutional rights.
“The factors for determining whether prosecution was brought in bad faith or to harass, to
trigger a departure from the … doctrine include whether it was frivolous or undertaken with no objective hope of success; whether it was motivated by the defendant’s suspect class, or in retaliation for the exercise of constitutional rights; and whether it was conducted in a manner to harass or to constitute an abuse of prosecutorial discretion, ”the court papers note, alleging that all three circumstances are present in the case.
The filing notes that Bethancourt signed the warrant resulting in the seizures even though he was not the assigned “duty judge” that day. Judges in the 32nd Judicial District questioned last week said that there is no requirement that a judge not sign a warrant even if he is not the “duty judge” on that day, although the practice of having a duty judge perform the task is ordinarily followed.
“NO HOPE … OF SUCCESS”
The warrant authorizing the seizure arose from investigation of a defamation complaint brought by Houma insurance broker Tony Alford. The website Exposedat and a related Facebook page under the fictitious name John Turner suggests that Alford’s pending contract with the Terrebonne Parish Consolidated Government was a result of money owed to Parish President Gordon Dove from a prior failed business dealing, which Alford and Dove have both said is a lie. The site alleges corrupt activities and what it described as nepotism by and between Dove, Alford, Terrebonne Parish Sheriff Jerry Larpenter and his wife Priscilla, District Attorney Joe Waitz Jr. and other individuals. Larpenter’s involvement in the case drew criticism and allegations of heavy-handedness. This was due in large part to a suggestion on the site that Alford’s employment of Priscella Larpenter was a factor in the selection of his agency to handle insurance for Sheriff’s Office employees. No law barred Larpenter from involvement in the case however. Alford has maintained – and Larpenter avers – that the choice of the agency Alford is associated with was due to benefits for the taxpayers that have resulted.
Prosecution against persons affiliated with the Exposedat site that could result from information in the computers, according to the court papers “has no objective hope of success, due to the unconstitutionality of its application of the criminal defense statute. The action by the State was in retaliation for the exercise of constitutional rights. The action by the State was taken to harass the Andersons for a purported exercise of protected speech.”
During the hearing before Bethancourt, attorney David Ardoin, who appeared with Smitko, argued that violation of the Louisiana criminal defamation statute on which the warrant was based did not apply to any statements made on the website against Tony Alford, because he is a public official. Long-standing case law has maintained that the statute, absent provable malice, cannot be applied if the allegation is that a public official is wronged.
Alford is president of the Terrebonne Conservation and Levee District, and the website did not allege wrongdoing involving that position.
But the federal court papers filed by Smitko argue that since the speech complained of involves actions that concern public entities – the Sheriff’s Office and the Terrebonne Parish Consolidated Government – restriction of the speech cannot apply.
To support that claim, Smitko relied largely on a Baton Rouge civil defamation case arising from a 1972 newspaper article that reflected poorly on the business practices of Lewis Johnson, who was coincidentally chairman of the Louisiana Board of Highways, a public entity.
The newspaper note that the article’s contents had nothing to do with Johnson’s official position, and that the claim it raised could therefore not stand.
“The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants,” the Louisiana appellate court ruled. “To this end, anything which might touch on an official’s fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the officials private conduct.”
A date for a hearing in federal court has not yet been set in the Exposedat matter.
It has been assigned to U.S. District Judge Jay Zainey, who was the presiding jurist in another local case involving free speech. A complaint by Houma Police Department Sgt. Kyle Faulk resulted in a $300,000 settlement the parish paid out, in connection with allegations that his public statements on a legislative matter resulted in changes of assignment and other negative actions.
Smitko represented Faulk.
AG OPINION SOUGHT
Wayne Anderson, owner of the computers and cell phones along with his wife, is a Houma City Police Officer. He was placed on administrative leave after the search but sources in parish government said he is expected to return to the job Monday. During the period he was on leave, he was barred from working extra-duty details, an important source of income for police officers.
As attorneys prepare for battle in federal court, matters related to topics on the Exposed at site are still a hot topic of public discussion. At a Wednesday Parish Council meeting Parish President Dove said he will seek an attorney general’s opinion on the propriety of his partner in businesses outside of the insurance realm, Alford, being awarded a professional services contract with the parish.
Dove had already received an opinion from the Louisiana Ethics Board stating that no conflict existed, and that Alford could do business with the parish.
Rumors remain rampant as to who “John Turner” might be; someone claiming to be Turner communicated with some individuals who asked questions on the Facebook page last week, after the laptops were seized.
Facebook accounts, however, are not computer-specific and can be accessed from any computer or cell phone.
“Rumors of my demise have been greatly exaggerated,” the Aug. 5 Turner post reads. “A wise man once said, I may not agree with what you say, but I’ll defend to the death your right to say it.
The people of this Parish have cried out for justice, and won’t refuse the call. Stay tuned.”
