Danziger ruling will set off new flurry of legal skirmishing

Although a federal judge has thrown out the convictions of five New Orleans cops convicted in the Danziger Bridge shootings, setting the stage for a new trial, the case could take several twists and turns before the defendants again find their fates in the hands of a jury.

In the weeks and months ahead, defense attorneys are likely to file a host of other motions, ranging from appeals to U.S. District Judge Kurt Engelhardt to dismiss the case outright to requests to move the retrial out of the New Orleans area, where publicity about the case has been extensive.

The U.S. Department of Justice’s next move will dictate the immediate next steps. Prosecutors could decide to appeal Engelhardt’s decision; to accept the ruling and move on to a new trial; or, though it seems extraordinarily unlikely, to dismiss the charges against the officers entirely. A Justice spokeswoman said Wednesday the agency had no further comment beyond its previous statement that officials are considering their options.

Citing “grotesque prosecutorial misconduct,” Engelhardt on Tuesday overturned the 2011 jury convictions of the NOPD officers convicted of shooting unarmed civilians as they walked across the bridge six days after Hurricane Katrina and later plotting to cover up their illegal actions. Two men died and four people were wounded, some very seriously.

While the judge wrote that he was troubled by several aspects of the government’s handling of the case, his 129-page order granting a new trial mostly focused on the anonymous online commenting of at least three federal prosecutors who, he wrote, created an “online carnival atmosphere” that “distorted” and “perverted” justice.

Defense attorneys have already said they plan to ask that their clients — now all serving time at various federal prisons — be released pending a new trial, although those requests have not yet been filed.

That may be an uphill battle. Of the five, former homicide Detective Arthur “Archie” Kaufman is the only one who was allowed to remain free on bond before the first trial. Kaufman was accused of participating in a yearslong campaign to hide what happened on the bridge, but not in the shootings themselves.

The others — Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso, all accused of civil-rights violations for opening fire on unarmed people along with participating in the cover-up — were kept in jail before trial.

Meanwhile, Engelhardt is already considering a motion by a sixth defendant, former NOPD homicide Detective Gerard Dugue, to entirely dismiss the charges against him.

The case against Dugue, along with Kaufman, one of two lead investigators who conducted the NOPD’s flawed internal probe into the Danziger shooting, was separated from the other defendants soon after the group was indicted in 2010. He went to trial in January 2012, but Engelhardt declared a mistrial when lead prosecutor Barbara “Bobbi” Bernstein grilled the defendant — who’d taken the stand — about other investigations he had undertaken into deaths at the hands of police.

Bernstein mentioned the name of a recently prosecuted case that Engelhardt had barred from discussion, a slip-up the judge deemed severe enough to abruptly end the trial.

Since then, Dugue’s attorney and Bernstein have filed numerous motions, mostly under seal, including a request by the defendant to dismiss the case. In his Tuesday order, Engelhardt noted that this motion rested on “many of the same grounds” as those raised by the convicted defendants seeking a new trial.

While a similar motion could well be filed by the other defendants, legal analysts were initially skeptical about its chances of succeeding.

“That isn’t going to get anywhere,” said Dane Ciolino, a professor at Loyola Law School. “There is no basis in law for dismissing an indictment for that.”

Former U.S. Attorney Harry Rosenberg noted that just as granting a new trial was a “pretty severe remedy” for the misconduct, dismissing the charges entirely would be “draconian.”

Defense attorney Tim Meche, who represents Villavaso, said he hoped Justice Department officials would consider dismissing the case themselves, as they did after a federal judge threw out the ethics conviction of former U.S. Sen. Ted Stevens, of Alaska. That case largely centered on the obvious misconduct of prosecutors who improperly withheld evidence from defense attorneys, something not present in this case.

But Meche said he believes there are parallels, specifically improper witness coercion, which Engelhardt flagged as a potential problem in the Danziger case.

Rosenberg, however, said although prosecutorial misconduct was at the forefront of both judges’ minds, the Stevens case was factually very different from Danziger.

“The parallel somewhat diverges because Stevens was a single defendant, basically charged with public corruption, while these individuals were charged with violating the Civil Rights Act, causing not only bodily harm, but death to individuals in the community,” he said. “I think it is going to be a lot more difficult, if not impossible, for the attorney general to make a decision under those circumstances that the case would not be retried.”

One other possible distinction could be that the prosecutors who actually engaged in the online commenting about the case weren’t those actively involved in prosecuting the Danziger case. The two main culprits in Danziger were both top-ranked, New Orleans prosecutors: Sal Perricone and Jan Mann, formerly the first assistant under U.S. Attorney Jim Letten.

A monthslong inquiry ordered by Engelhardt also produced the news that a prosecutor in the Washington, D.C.-based civil rights division also posted comments at NOLA.com during the trial. While not directly involved in prosecuting the case, that attorney had screened some material for the trial team.

If the case does proceed to a new trial, a motion to change the venue could be considered by the defense. Defendants have tried that tactic once before, saying an onslaught of negative news stories about New Orleans’ police in recent years had biased the public to such a degree that a fair trial in southeastern Louisiana was impossible.

Before the 2011 trial, Engelhardt ruled that moving the trial to another location was unnecessary, saying he would question jurors to ensure they were not tainted by the news coverage and would be impartial. But his decision to overturn the jury verdicts could forecast a change of heart: In his order, he speculated that jurors might have been influenced not only by the Danziger articles on NOLA.com, but also by the pseudonymous comments beneath them.

For Rosenberg, the defense will have to think long and hard about whether it wants to move the trial. The defendants, he noted, could benefit from the extensive news coverage of the prosecutorial misconduct in the case. “They may like the publicity surrounding the judge’s comments,” he said.