NEW ORLEANS - Federal prosecutors have filed a motion to block any discussion about "prosecutorial misconduct" during the upcoming public corruption trial of former New Orleans Mayor Ray Nagin.
The action comes just one day after Nagin filed a request to delay his October 28 trial, citing improper online commenting by government attorneys about him and the case against him.
The government writes in its motion, "The United States urges this Court to preclude the defendant (through counsel or otherwise) from arguing or pursuing lines of inquiry suggesting the defendant was charged not because of the evidence in the case, but rather as a result of some improper motive."
The government also argue the proper time to make a claim of selective prosecution is in pre-trial motions and not during trial.
Federal prosecutors are arguing that former Assistant U.S. Attorneys Sal Perricone and Jan Mann and former U.S. Attorney Jim Letten were not involved in Nagin's indictment.
An earlier a motion filed by Nagin's defense attorney Robert Jenkins argues Nagin was a frequent target of at least one of the former federal prosecutors involved in posting improper online comments before and during the 2011 trial of five former New Orleans police officers.
They were convicted in the coverup and shooting of unarmed civilians on the Danziger Bridge after Hurricane Katrina struck the city in 2005.
This week, U.S. District Judge Kurt Engelhardt called the commenting "highly unusual, extensive and truly bizarre," and threw out the convictions.
Jenkins is asking that Nagin's trial be postponed until a final report on the online posting scandal is completed by the Department of Justice's special investigator John Horn. Horn is the First Assistant U.S. Attorney for the Northern District of Georgia.
Jenkins wrote, "...based upon Judge Engelhardt's findings, it is plain that neither fair play, nor due process were respected as a result of misconduct by local federal prosecutors."
In June 2009, former senior prosecutor in New Orleans Sal Perricone made this online post under the name campstblue: "For all of you who have a penchant for firearms and how they work, Ray Nagin lives on Park Island."
In May 2009, campstblue wrote, "...the Nagin administration has exceeded the Marc Morial administration in denying the citizens of New Orleans of their right to honest government, for profit."
The government's motion argues, "As the Supreme Court has plainly stated selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution."
The motion goes on to say, "Claims of selective prosecution must be raised before trial and resolved outside the presence of the jury."
Prosecutors also argue Nagin's "prior good deeds" and "prior honest acts" should also be inadmissible during his trial.
Judge Ginger Berrigan has yet to rule on either motion. A hearing on the trial delay request is now set for October 9.