Mimesis Law
13 December 2019

Up In Smoke, Nebraska Style

Sept. 18, 2015 (Mimesis Law) — In an intentionally cryptic post, District of Nebraska Senior Judge Richard G. Kopf sends out a smoke signal to no one in particular. Not that I have any magical power to read smoke signals, but that never stopped me from sticking my nose into a judge’s message.

Judge Kopf hasn’t been shy about his admiration for the integrity of the federal prosecutors who have appeared before him.

I am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.

And I, in return, haven’t been shy in disagreeing that federal prosecutors are some better breed, whereas state prosecutors may occasionally be dirty scum but AUSAs are, at worst, “honest idiots.”

No one has let me in on the secret message sent by highlighting the “remarkable article from the Omaha-World Herald: Assistant U.S Attorney Post: Prosecutor rumored to be headed here has baggage from California, (September 17, 2015). I have no Capt. Midnight decoder ring, and the mystical understanding of the robed few remains as elusive to me as to anyone else outside the club.

Yet, the message seems pretty clear.  California carpetbaggers will not find a welcome new home in the District of Nebraska.  Or, as someone else might put it,

Above all else, I demand that federal prosecutors cut square corners.

The Omaha story revolves around a rumor, albeit a rumor that has some curious confirmation, that a California prosecutor named Erik Petersen decided that the Orange County sun was a bit too disinfecting for his complexion.

A California judge had removed the gang prosecutor from two cases after the judge ruled he had intentionally withheld evidence about jailhouse informants from defense attorneys.

Subpoenaed to testify about his handling of a murder case, Petersen had submitted a sworn statement in Orange County court saying he had resigned and was starting a job in “another state on Oct. 4, 2015.”

He declined to name the state. Two Omaha law enforcement officials say [Nebraska U.S. Attorney Deb] Gilg announced the addition of Petersen at a recent staff retreat.

Gilg denies that Erikson, having fled California to avoid the ramifications of an inquiry into concealing Brady, has gone from deputy district attorney in the land of fancy cars to the more bucolic environs of flyover country.  But Gilg’s denial isn’t, well, exactly a denial.

Asked if Petersen is starting a job in her office on Oct. 4, Gilg said: “That is inaccurate information.”

She declined to comment further, saying she cannot discuss personnel matters.

The law enforcement officials, who spoke on condition of anonymity, say Petersen was interviewed and was offered a job. Gilg has since hedged on whether Petersen is in line for the job, they say.

It’s quite possible, maybe even likely, that when interviewing a prosecutor, the U.S. Attorney made a problematic assumption that he’s as pure as the driven snow.  After all, it’s not like prosecutors aren’t honest, right?  Except those who aren’t honest.

Assistant U.S. attorney candidates typically go through extensive FBI background checks. A simple Google search would have turned up news stories about the controversy that surrounded Petersen in California in recent years.

But one has to do that Google search, or better yet, check the references, in order to find that outlier prosecutor who may be the lying scumbag that no one wants to admit exists.  Perhaps Gilg’s computer was down, and it didn’t occur to her that she could have borrowed Judge Kopf’s?

The secondary problem, aside from the failure to vet the new hire for integrity and flagrant misconduct, is that Gilg’s announcement was internal, giving her plausible deniability when it comes to having hired this left coast mutt to play dirty in Nebraska.  The anon sources appear credible, particularly given how much credit is afforded law enforcement when they leak all sorts of bad stuff about defendants.

So what now is Gilg to do?  Does she deny she ever hired Petersen, even though she did but hadn’t yet said so publicly?  Or does she tell the truth, concede her shabby vetting processes, and apologize for bringing to Nebraska a prosecutor who couldn’t manage to pull off his shenanigans in the dirty belly of the Orange County beast?

If I read Judge Kopf’s smoke signals right, the message is that his courtroom, his courthouse, isn’t going to prove particularly hospitable for a federal prosecutor who has a history of misconduct, and who fled to avoid responsibility.  Cut square corners.

In Nebraska, the judge expects prosecutors to be honest, to do it right, to play hard ball but not low ball. And California’s rejects aren’t welcome in the middle of nowhere.

As for Deb Gilg, one can only wonder whether she will demonstrate the same level of transparency as a certain district judge has, even if it doesn’t reflect well on her.  After all, that’s what’s demanded of prosecutors in Nebraska.

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