Inside Report
Next to his office desk, Orleans Parish District Attorney Leon Cannizzaro Jr. keeps three large boxes containing the investigative file from a probe into the deaths of at least 34 patients at a flooded New Orleans hospital after Hurricane Katrina in 2005.
The state 1st Circuit Court of Appeal in Baton Rouge recently cited that fact in considering — among other things — whether Cannizzaro has taken “objective, positive, and verifiable steps’’ to preserve his ability to initiate criminal litigation in the patient deaths more than six years ago.
A panel of 1st Circuit judges concluded Dec. 8 by a 4-1 vote that the investigative file should be shielded from public view because criminal litigation “can be reasonably anticipated in this case.’’
Fred Herman, an attorney for the Orleans Parish District Attorney’s Office, said the appeals court “vindicated’’ Cannizzaro’s office, which vehemently opposes releasing the investigative file.
An attorney for CNN and The Times-Picayune, which are seeking the release of the file, says the cable television news giant and the New Orleans newspaper likely will ask the Louisiana Supreme Court to review and reverse the appellate court.
Lori Mince, who represents the two media outlets, called the 1st Circuit ruling “so obviously wrong.’’
Mince said Cannizzaro candidly admits his office would need new evidence to reopen the probe into the deaths of patients at Memorial Medical Center.
“That suggests it’s closed,’’ she said of the investigation.
Mince also says it was “unwise’’ for the 1st Circuit to place any emphasis on the fact that Cannizzaro keeps the investigative file to the right of where he sits. If that is the case, she says, all any prosecutor would have to do to keep an old file out of public view is keep the file near his desk.
Mince contends the best way for prosecutors to get the additional evidence they need is to allow the media to publish the material in the file, which she says could prompt feedback from the public.
Mince points to an August 2009 New York Times article in which a former Memorial Medical Center doctor stated that patients at the hospital were “killed’’ in the wake of Katrina. The article prompted Cannizzaro to ask the Orleans Parish coroner to perform an autopsy on a terminally ill patient who died at the hospital following the storm.
“The only reason that inquiry was made was because of the media,’’ Mince argues.
The 1st Circuit panel said the coroner declined to classify the woman’s death as a homicide, and her death remains “unclassified.’’
The initial probe into patient deaths at Memorial was initiated by then-state Attorney General Charles Foti, who accused Dr. Anna Pou and nurses Lori Budo and Cheri Landry of killing critically ill patients at the hospital with overdoses of a mix of sedatives and painkillers.
Budo and Landry were given immunity for grand jury testimony after Pou and the two nurses were arrested in 2006 on four counts each of second-degree murder. An Orleans Parish grand jury declined to indict Pou in 2007, returning a “no true bill.’’ The charges against all three women were later expunged from the court record.
Cannizzaro warns that the release of criminal investigative files sets a “horrible precedent’’ and provides the potential for abuse of witnesses and fear of retaliation, the 1st Circuit said, while state Attorney General Buddy Caldwell cautions that the release of the file in this case may “turn the judiciary into a public records request initiative’’ every time a grand jury returns a no true bill.
First Circuit Chief Judge Burrell Carter wrote for the court that there have been “no final adjudications in this case’’ and no “affirmative evidence that the case is settled as against the three arrestees or against any unnamed potential defendants.’’
Fellow 1st Circuit Judge Page McClendon added there is a “realistic expectation’’ that new evidence will be discovered during ongoing civil litigation involving the events at Memorial.
“Concluding the file presently pertains to reasonably anticipated criminal litigation, we hold that the file is exempt from disclosure,’’ Carter stated.
Joe Gyan Jr. covers courts for The Advocate. He can be reached at jgyan@theadvocate.com.