NEW ORLEANS -- Less than two weeks before the federal trial of former Mayor Ray Nagin is set to begin, Nagin's attorney changed his strategy and said he needed more time to prepare for the Oct. 28 trial.
Nagin's defense lawyer, Robert Jenkins, has made several attempts to delay the start of the trial and get the bribery, conspiracy and fraud charges against his client dismissed -- always arguing that online postings by former federal prosecutors prevented Nagin from getting a fair trial.
But even as U.S. District Judge Ginger Berrigan rejected Jenkins' request for a report on government misconduct Wednesday, Jenkins went in another direction, asking this time to delay the start of the trial because of the 'vast volume of documents and information.'
The strategy is questionable and actually recycles an old argument that didn't work previously. Jenkins already tried to get the trial pushed back into November or December but was given just three additional weeks by Berrigan, who moved the trial from Oct. 7 to Oct. 28. In addition, Jenkins has had the government's evidence against his client since June.
Jenkins also asked for evidentiary hearings on his motions on Nov. 6, a week after the trial is scheduled to begin, to try again to convince Berrigan to dismiss the charges or to make the Justice Department produce its internal investigative report on the U.S. Attorney's Office online commenting scandal.
Earlier Wednesday, Berrigan issued an order saying she didn't need a hearing to consider Jenkins' request for the Justice Department's 'Horn Report.' She simply used the arguments Jenkins had made in court documents to reject his appeal.
In his latest shot at getting the charges against his client dismissed entirely, Jenkins tried to equate the derrogatory online ramblings of disgraced former prosecutor Sal Perricone to the alleged bribery, conspiracy and fraud Nagin is charged with.
'If the sanction for the defendant's alleged misconduct is an indictment and potential trial, an appropriate sanction for the government's extensive and rampant misconduct should be the dismissal of the indictment and the end of that possible trial,' Jenkins wrote.
Last week, Jenkins had asked for an expedited hearing to appeal the ruling by Magistrate Judge Alma Chasez, who also rejected his request for the report. Berrigan, like Chasez, said that the online scandal should not taint the jury selection or proceedings, as Jenkins claimed it would.
'The Court finds that the order of the magistrate judge is not clearly erroneous or contrary to law. Again, the jury will be instructed that an indictment is not evidence of guilt. The jury, and only the jury, will determine whether the defendant is innocent or proven guilty beyond a reasonable doubt,' Judge Berrigan wrote.
Jenkins' latest effort to dismiss the indictment against Nagin again cited misconduct on the part of former prosecutors Perricone and Jan Mann. The government attorneys handling the Nagin case, Matt Coman, Rick Pickens and Matt Chester, argued that neither Perricone nor Mann was directly involved in the Nagin proceedings.
But Jenkins pointed to online postings by Perricone which mentioned Nagin, and he also wondered whether the Horn report contained any evidence of wider involvement in commenting or other misconduct by anyone on the prosecution team.
'It is apparent that the evidence known so far is compelling that the government's misconduct was intentional, pervasive, and affected adversely the defendant's Constitutional right to a fair trial,' Jenkins wrote in his motion to dismiss.
Jenkins had also asked for an opportunity to question former U.S. Attorney Jim Letten, Mann and Perricone, all of whom resigned amid the scandal.
Nagin's trial is set to begin Oct. 28.