In a stunning order excoriating the tactics of federal prosecutors, U.S. District Judge Kurt Engelhardt on Tuesday overturned the jury convictions of five New Orleans police officers found guilty of shooting six unarmed people after Hurricane Katrina and then orchestrating a brazen cover-up.
The Danziger Bridge verdicts were a landmark civil rights victory for the Department of Justice, as prosecutors persuaded jurors not only that the shootings were unlawful, but that officers had lied about what happened for years. Jurors found that the police officers began to cover up their actions almost immediately, escalating into the arrest of a man police knew to be innocent, the crafting of false accounts, and, in the case of one defendant, the planting of a gun later claimed to be found at the scene and the invention of fictional witnesses to bolster the police account of what happened.
But in his blockbuster 129-page order, Engelhardt ruled that various government tactics — in particular, inflammatory online postings by various prosecutors using aliases — amounted to misconduct that irredeemably tainted the case.
None of the prosecutors who posted pseudonymously, including a Washington, D.C.-based Department of Justice attorney unmasked at the judge’s prodding, were part of the government’s trial team.
Engelhardt noted the irony of throwing out a case based on violations of the public trust because of further violations of the public trust — the latter on the part of those charged with achieving justice.
“This case started as one featuring allegations of brazen abuse of authority, violation of the law and corruption of the criminal justice system; unfortunately, though the focus has switched from the accused to the accusers, it has continued to be about those very issues,” Engelhardt wrote. “After much reflection, the Court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end.”
The judge underscored that he is aware of the gravity of the case, particularly for the victims, and said he was loath to throw out the jury verdicts.
“The Court is, of course, also very cognizant that, on Sept. 4, 2005, two men died, while three others were seriously injured, under tragic circumstances at the hands of some of the defendants herein, and that the state court criminal justice system was corrupted to the prejudice of at least one victim, Lance Madison,” he wrote.
“Mr. Madison’s riveting testimony — both at trial and at sentencing — is surely not soon forgotten. Indeed, it echoes in this case, making the abuses set forth herein all the more astonishing.”
Although most of his order focused on online commenting by prosecutors, Engelhardt wrote that the Internet abuse was compounded by other conduct by the federal team handling the case that he found troubling.
For instance, news that former Lt. Michael Lohman would plead guilty in the case was broken by the Associated Press and The Times-Picayune the night before Lohman actually entered his plea in February 2010. The judge attributed the “premature media reports” to a leak in the Justice Department, and expressed frustration that the leaker has never been identified.
Both news organizations have declined to identify their sources.
The judge also found fault with various prosecution witnesses, including four of the five former NOPD officers who pleaded guilty to reduced charges in exchange for their trial testimony.
Engelhardt additionally found it outrageous that prosecutors essentially blocked the testimony of NOPD officers that would have helped the defense, threatening them with possible prosecution for perjury if they took the stand.
The sum total of the misbehavior denied the defendants their constitutional right to due process, Engelhardt wrote.
“The public must have absolute trust and confidence in this process,” he wrote. “Re-trying this case is a very small price to pay in order to protect the validity of the verdict in this case, the institutional integrity of this Court, and the criminal justice system as a whole.”
Tuesday’s ruling was not the first time Engelhardt has expressed umbrage at prosecutors’ methods — or discomfort with the case as a whole. Before sentencing the defendants, he complained, at length, about statutory minimums that required him to impose long prison sentences on four of the five defendants. He also groused that officers who pleaded guilty received much more lenient sentences, and questioned the veracity of their testimony.
“Using liars lying to convict liars is no way to pursue justice,” he said in a memorable speech.
In November, Engelhardt called for further inquiry into possible prosecutorial misconduct, but expressed skepticism that it would rise to the level of invalidating the jury verdicts.
The defendants who will receive new trials on the basis of Tuesday’s order include Kenneth Bowen, Anthony Villavaso, Robert Gisevius and Robert Faulcon, all of whom were convicted of firing their weapons at civilians walking across the bridge connecting Gentilly and New Orleans East six days after Katrina flooded much of that area.
Defendant Archie Kaufman, a homicide detective accused of helping to orchestrate a cover-up, also will receive a new trial.
All five defendants are currently serving time in federal prison. Attorneys for several of the men said they plan to ask that they be released pending a new trial.
Before the first trial in 2011, only Kaufman was allowed to remain free on bond; the other four, accused of using guns in a crime of violence, were jailed.
Ronald Madison, 40, and James Brissette, 17, were killed in the gunfire that day, while several members of the Bartholomew family were seriously injured.
Lance Madison, who had seen his brother Ronald gunned down, was arrested and accused of shooting at police.
Relatives of the victims were incredulous at the ruling.
“What’s going to happen to the crimes they committed? Are they just going to sweep that under the carpet and forget it?” asked Sherrel Johnson, Brissette’s mother. “My son is dead. Ronald is dead. All the others are damaged. They did that to innocent people, for no reason. And now they’re going to twist it all up.”
In a statement, Dr. Romell Madison, a brother to Ronald and Lance, urged the Justice Department to appeal Engelhardt’s decision to the U.S. 5th Circuit Court of Appeals.
“It has been over eight years since our brother Ronald was shot and killed on the Danziger Bridge and our brother Lance was falsely arrested and framed on eight counts of attempted murder,” Madison said in a statement. “This decision reopens this terrible wound not only for our family but our entire community.”
While the government may well appeal, Dane Ciolino, a law professor at Loyola University, said such appeals are tough to win.
“The appeals court can reverse only if it finds that Judge Engelhardt ‘abused his discretion.’ That is a tough standard for the government to meet,” he said.
Engelhardt’s surprise decision is unlikely to mean any relief for the five police officers who pleaded guilty to either being involved in the shooting or helping to cover up the truth, and then testified against their former colleagues during the 2011 trial.
It is unclear what impact, if any, the ruling will have on the still-pending case against former NOPD Sgt. Gerard Dugue, a longtime homicide detective also accused of aiding the cover-up.
Last year, two former New Orleans federal prosecutors were unmasked as anonymous commenters on NOLA.com: Sal Perricone and Jan Mann, two of former U.S. Attorney Jim Letten’s top lieutenants.
Mann was the office’s second-in-command. Neither was directly involved in the Danziger case, which was spearheaded by prosecutors with the U.S. Department of Justice’s civil rights division in Washington.
Perricone posted frequently about the Danziger case, often mocking defense attorneys and castigating the NOPD. Mann is not accused of commenting about Danziger, but did post about other federal cases on NOLA.com as “eweman” beginning in late 2011.
Her alleged misconduct in the Danziger case stems from her actions as a supervisor, when she was put in charge of an inquiry into Perricone’s posting as well as possible leaks from the office. Engelhardt deemed her effort a whitewash, and sought a deeper probe; the Department of Justice assigned John Horn, a prosecutor based in Atlanta, to the task.
Horn’s inquiry revealed that two other law enforcement officials had been commenting on the website under anonymous handles. One, writing as “Dipsos,” was a DOJ civil rights attorney who had knowledge of the case, but wasn’t a member of the prosecution team. Another was an unnamed New Orleans-based Justice Department employee who was not involved in Danziger or the other major Katrina-era civil rights case, the shooting of Henry Glover and the subsequent burning of his body by police.
“Dipsos,” Engelhardt revealed Tuesday, was Karla Dobinski, who led the “taint team” in the Danziger case. Dobinski’s job was to shield prosecutors from the poisoned fruits of an earlier failed state prosecution of the officers, a case that tanked in part because the Orleans Parish District Attorney’s Office forced three police officers to testify at a grand jury. In doing so, the office had given the officers immunity from their statements being used against them, but then later indicted them.
Dobinski was tasked with making sure that federal prosecutors did not see any of the “tainted” material from the state case.
Engelhardt noted in his order that part of Dobinski’s duties was to ensure that defendants weren’t unfairly prosecuted using barred evidence, essentially making her an advocate for their constitutional rights.
The only officer at the federal trial who had testified before the state grand jury was defendant Kenneth Bowen, whom prosecutors accused of spraying an AK-47 at the victims as they huddled behind a concrete barrier.
In his order, Engelhardt expressed astonishment that a prosecutor — especially one in such a position — would delve into the comment stream under stories about the Danziger trial; there, she consorted with other pro-prosecution commenters writing as ““crawdaddy” and “123ac.”
The judge noted that Dobinski encouraged the reflections of “123ac,” who repeatedly offered anti-defense, but sometimes lawyerly observations, about courtroom action.
“Please post what you see in court!” she wrote at one point.
At several points, the judge suggests that Dobinski was colluding with “crawdaddy” and “123ac,” and he speculates that they, too, may be Justice Department employees.
“Less than 65 days before the start of this trial, Dobinski took the stand to explain in detail all of her extensive efforts to protect defendant Bowen’s constitutional rights; yet before the jury even got the case for decision, she personally fanned the flames of those burning to see him convicted,” the judge wrote. “Such gravely poor judgment surely calls into question the careful and meticulous effort she claims she exerted in protecting Bowen’s rights.”
Dobinski told Horn that she went to the comment stream under NOLA.com stories because she wasn’t able to get updates directly from the prosecution team and “there was not a good flow of information back about the trial events.”
Engelhardt found the explanation absurd.
Defense attorneys celebrated the judge’s decision, which came in response to a May 2012 request for a new trial that argued federal prosecutors engaged in a “secret public relations campaign” to convict the defendants by poisoning public sentiment about the NOPD.
The motion argued that anonymous law enforcement sources helped the media create a drumbeat of negative coverage about police misconduct after Katrina, helping prosecutors. Perricone’s posting during the Danziger trial, which had just recently been unveiled, was part of the effort, defense attorney Billy Gibbens argued in his motion.
Gibbens, a former colleague of Perricone’s, was also part of the legal defense team of landfill magnate and erstwhile federal target Fred Heebe, who filed the lawsuit that revealed Perricone as a closet commenter in March 2012.
In his order, Engelhardt spent relatively little time discussing the alleged leaks to the media, in part because the source of them has never been determined. But the judge found hypocrisy in the decision by some media outlets to request that filings in the Danziger case be unsealed while refusing to discuss their sources.
“Clearly, what we always suspected was going on was in fact going on,” said attorney Eric Hessler, who represented Gisevius at trial. “It’s a difficult case to try, with the political climate as it was. It was made so much more prejudicial by the extent of their misconduct, which has now been revealed.”
Timothy Meche, who represents Villavaso, felt a similar vindication: “Obviously, this validates everything we have maintained, which is that this prosecution was deeply flawed and represented a perverted sense of justice.”
Both Hessler and Meche said the online commenting scandal was merely the most sensational of many improprieties on the part of the government — such as the threats to charge potential defense witnesses with perjury.
“It had a chilling effect for our witnesses, because they believed that the government was capable of doing that, of falsely accusing them,” Hessler said. “It seems like a justifiable fear to believe that now.”
While the judge was clearly incensed by prosecutors’ actions in the case, it’s less obvious how the online commenting before and during the trial might have influenced jurors, who, while not sequestered, were specifically barred from reading about the case.
Engelhardt noted that prospective jurors filled out questionnaires, and that one question asked whether jurors regularly visited NOLA.com. Seven of 12 jurors said they did, and those seven, on balance, took a slightly dimmer view of the NOPD than the five who did not regularly visit the website, Engelhardt writes.
But the differences in opinion were not remarkable, and the judge acknowledges that “there are undoubtedly many reasons why each juror thought the way he/she did.” He writes that, had he known about the improper postings by Perricone and others, he would have questioned jurors more extensively about their interactions with NOLA.com.
Near the end of his order, Engelhardt seems to acknowledge that pseudonymous online commenting by federal prosecutors is something of a new legal frontier. But he believes it clearly violates federal ethics codes that bind prosecutors, even when the prosecutors hide behind the cloak of anonymity, and thus can’t be brushed aside.
“Some may consider the undersigned’s view of the cited rules and regulations as atavistic; but courts can ignore this online ‘secret’ social media misconduct at their own peril,” he writes. “Indeed the time may soon come when, some day, some court may overlook, minimize, accept or deem such prosecutorial misconduct harmless ‘fun.’ Today is not that day, and Section N of the United States District Court for the Eastern District of Louisiana is not that court.”
Staff writers Claire Galofaro and Gordon Russell contributed to this report.
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