Louisiana Voice

When Hurricane Katrina made landfall on August 29, 2005, it resulted in the deaths of nearly 1,400 people, destroyed property and upended the lives of tens of thousands of others, none more than one Ashton R. O’Dwyer, Jr.

The radical changes to O’Dwyer’s life didn’t actually begin until three weeks later, at five minutes after midnight on September 20, but the change – and his fall from grace – was fast and furious. Literally.

What he described, and continues to describe, as gross negligence by the U.S. Army Corps of Engineers and the State of Louisiana “through various agencies, instrumentalities and political subdivisions,” caused 80 percent of the homes and businesses in New Orleans to flood.

AROD, as he refers to himself, at the time was a respected partner in the New Orleans law firm of Lemle & Kelleher. He specialized in admiralty and maritime law. He decided to remain on his property “in order to protect what belonged to him,” according to court records, because his property, at 6034 St. Charles Ave. in the uptown section of New Orleans, was “high and dry” and undamaged by the storm. Moreover, he had a generator “and sufficient food and water to provision a small army.”

Because St. Charles Avenue did not flood and since it provided access to both U.S. 90 and I-10, and because his home was located on one of the main thoroughfares in and out of New Orleans, journalists traveled the route extensively during their coverage of the carnage. They would see O’Dwyer clearing debris from his and neighbors’ yards and the neutral ground along St. Charles in front of his house and stop to interview him.

In a tongue-in-cheek gesture, he devised a spoof based on the Peter Sellers movie The Mouse that Roared and “seceded” from the U.S., the State of Louisiana and the City of New Orleans and declared his property as “sovereign territory,” more particularly the “Duchy of Kilnamanagh,” (which, in fact, is the geographic area within County Tipperary in the Province of Munster “on the Emerald Isle whence the O’Dwyer Sept sprung”).

O’Dwyer’s fate was sealed when, on September 19, he drove to Baton Rouge where the Eastern District Federal Cout was temporarily headquartered and filed the very first “Victims of Katrina” lawsuit against the United States of America, the State of Louisiana, the governor, the City of New Orleans, the New Orleans mayor, the Orleans Levee Board, the Sewerage & Water Board and others.

Twelve hours later, at five minutes after midnight, the fecal matter hit the proverbial oscillating air circulation device. As he sat at a table in his driveway watching the news on television, a “goon squad” of Louisiana State Troopers DESCENDED ONTO HIS PROPERTY, “abducted him and transported him to a temporary jail facility that became known as Camp Amtrak,” he wrote in documents filed with the U.S. Fifth Circuit Court of Appeals, a court he has come to refer to as the “Fifth Circus.”

At Camp Amtrak, he was “brutalized and tortured” by Louisiana Department of Public Safety and Corrections prison guards from the Louisiana State Penitentiary at Angola who kept him in custody for the next 16 ½ hours where he was pepper-sprayed more than three dozen times and shot 12 times in both lower extremities at point-blank range (from two feet away) with a 12-gauge shotgun loaded with beanbag rounds.

Was the ABDUCTION of O’Dwyer from his property (without a warrant, no less) and his subsequent incarceration and physical abuse for 16 ½ hours somehow connected to that lawsuit he had filed earlier in Baton Rouge?

For that answer, we’ll let you connect the dots.

Documents filed by O’Dwyer in federal court said his life began to unravel when what he described as a “cabal,” led by Federal Judge Stanwood Duval, conspired against him in order to promote their own $400 billion Katrina lawsuit against the U.S. Corps of Engineers that, it turned out, was rife with major conflicts of interest.

The “cabal” members, O’Dwyer said in filings, were signatories to a document entitled “Levee Breach Litigation Group Co-Counsel Agreement” and to a similar document for the “MRGO (Mississippi River Gulf Outlet) Litigation Group” by terms of which the signatories agreed to share legal fees with each other. Those signatories, he said, included Joseph Bruno (later appointed by Duval as “Plaintiffs Liaison Counsel” for all Katrina tort cases), Denham Springs attorney Calvin Fayard (the lead counsel for the MRGO litigation Group and likewise named by Duval to head the Insurance Committee), Danny Becnel and others.

O’Dwyer would not learn until much later that those attorneys had entered into an agreement with then-Attorney General Charles Foti, Jr., to “secretly represent the interests of the State of Louisiana, its agencies, instrumentalities and political subdivisions for the presentation of a tort claim on behalf of the State, et al, and against the U.S. Corps of Engineers, in the amount of $200 billion (later increased to $400 billion).”

O’Dwyer stressed that, “The existence of the agreement was not disclosed to the other litigants or to their attorneys…until the second anniversary of Katrina, August 29, 2007.”

The cabal’s strategy,” O’Dwyer said, was laid out when Duval traveled as Fayard’s guest to the LSU-Alabama football game in Tuscaloosa, Alabama, in November 2005. Duval, O’Dwyer pointed out, never disclosed the trip to Katrina litigants or their attorneys –some might describe that as an ex parte (one-sided) communication between a judge and a litigant, a legal no-no. Nor did Duval report the all-expenses-paid trip on his federal financial disclosure form as required (he would later claim “inadvertence” for the omission).

Also making that same expenses-paid trip were Duval’s wife who was also his law clerk and his “other” law clerk, who just happened to be Fayard’s daughter, Caroline, who organized the trip.

But back to that second anniversary of Katrina on August 29, 2007. Even as Fayard et al were refining their lawsuit, Duval was unceremoniously and summarily dismissing O’Dwyer’s lawsuit without so much as bothering to hear oral arguments, much less any discovery on the merits of the lawsuit he had filed on behalf of some 2,000 Katrina victims.

“In other words,” asserted O’Dwyer, Duval “engaged in a persistent course of conduct in the litigation to attempt to ‘feather the nest’ of his close personal friend of long-standing, Fayard, and was biased and prejudiced in favor of Fayard…”

Duval even went so far in February 2007 as to sanction O’Dwyer for “harassment” of the State of Louisiana (Fayard’s secret client at the time).

But then the unthinkable occurred when it was ruled that the United States, through the Corps of Engineers, was immune from being sued over the levee’s failure. That left only one obvious defendant – the State of Louisiana, and because Foti, as attorney general is constitutionally required to defend the State, it became an inconvenient – and obvious – conflict of interest for the State to be named as a defendant in their lawsuit.

A flurry of legal back-and-forth then ensued the details of which would only make a reader’s head hurt but the eventual upshot was:

• Judge Ivan Lemelle’s finding O’Dwyer in contempt and hitting him with a principal default judgment of $90,831.57, prejudgment interest of another $24,304.14, plus $150.56 per day from and including June 12, 2009, plus attorney’s fees in the amount of one-third of the principal and prejudgment interest, and for post-judgment interest on the principal sum and attorney’s fees;
• Lemelle’s recommendation that O’Dwyer be suspended and disbarred;
• Katrina victims were left holding the proverbial bag because of the failure of the “cabal” to name the state as a defendant;
• The eventual settlement of $21 million, of which $3.5 million went to attorneys’ fees, $13.5 million for “reimbursable” costs incurred by attorneys, and settlement checks as small as $2.50 for some Katrina claimants.

O’Dwyer subsequently attempted in vain to learn or obtain:

• The actual sum of money was made available for distribution to claimants;
• A spreadsheet that identified the sum of money that each claimant received;
• The actual sum of money that the lawyers received and the amount of money that each lawyer or firm received;
• The amount the Special Master received;
• How much demographer Gregory Rigamer or his companies, GCR, Inc., of Gregory C. Rigamer & Associates received;
• What the administrative costs were – and who received what amounts;
• Documentation for the assertion that the plaintiffs’ lawyers in the levee cases actually spent $13.5 million in reimbursable costs, and
• How much lawyers in the MRGO Litigation Group (as opposed to “levee” lawyers) received.

None of O’Dwyer’s requests for the foregoing information has been responded to and the information remains unavailable to the public.

All of the event described above, he said, began less than two weeks after Katrina struck New Orleans when Louisiana Supreme Court Associate Justice (later Chief Justice) Catherine “Kitty” Kimball, Charles B. Plattsmier, Jr. (chief disciplinary counsel of the Louisiana Attorney Disciplinary Board) and then-Attorney General Charles C. Foti, Jr., “among other co-conspirators,” met in Baton Rouge on Sunday, September 11, 2005. During that meeting, O’Dwyer says, Kimball said to those present, “Somebody’s got to shut that guy (O’Dwyer) up. He’s giving us all a bad name.”

As the direct result of what he describes as a “reign of terror” unleashed against him, O’Dwyer lost his law partnership, his law license, his home and his marriage of more than 40 years, his 380-SL Mercedes and all his financial resources. He was criminally prosecuted for two years (that was the only battle he eventually won) and even spent 34 days in solitary confinement and prolonged home confinement. Through all his travails, however, he has somehow retained his dignity.

UP NEXT: How O’Dwyer’s multitude of problems, though unrelated and decades apart, dovetailed with the legal entanglements that the embattled Archdiocese of New Orleans now finds itself in with its ongoing child sex abuse litigation.