Two members of panel said they knew nothing of online comments
“What first came to my mind was the victims and their families. ... I’ve never met any of these people. But I am saddened for them.” DWAYNE FARLOUGH, juror
As Chet Robin drove home from work Tuesday, he turned on the radio and was stunned by what he heard: a trial he devoted more than a month of his life to, and the decision that he and 11 other jurors made, had just been erased.
For six weeks of summer 2011, he and his fellow jurors listened to dozens of witnesses detail the blood and terror and death on the Danziger Bridge six days after Hurricane Katrina.
The 12 of them understood the gravity of what they’d been tasked to do, the significance of the case, Robin said. They followed the rules, they got there on time, took notes, spoke about it to no one, read nothing about it in the news.
They deliberated for two days.
Then they decided that five police officers should be held accountable for shooting six unarmed people on Sept. 4, 2005, and orchestrating a brazen cover-up.
On Tuesday, just over two years later, a federal judge scrapped their verdict. It had been poisoned, he decided, by vicious rants federal prosecutors posted secretly under online news stories about the case.
The judge acknowledged the “sanctity of this jury’s verdict and the undesirability of upsetting it.” But the “gross prosecutorial misconduct” exhibited left him no choice, he wrote.
That didn’t sit well with Robin, who lives in Lutcher.
“I’m damn angry about it,” Robin said. “He’s saying what we decided was totally bogus, and he’s just throwing it out, like the jury didn’t matter.”
Fifteen miles away in LaPlace, his fellow juror Dwayne Farlough had just sat down for lunch at his office when a co-worker came in to deliver the news.
His initial reaction wasn’t anger. He was heartbroken, he said.
“What first came to my mind was the victims and their families,” he said. “Eight years after it happened, once again, they’ll have to sit in a courtroom and listen to it all over. I’ve never met any of these people. But I am saddened for them.”
In a 129-page order overturning the verdict, U.S. District Court Judge Kurt Engelhardt pilloried the federal prosecutors whose antics had created what he called “an online 21st-century carnival atmosphere.” And in doing so, they had tarnished a conviction hailed as a victory not just for the city, but for American civil rights.
The online posting scandal erupted last year, when two of U.S. Attorney Jim Letten’s top prosecutors, Sal Perricone and Jan Mann, were caught by the target of a criminal probe posting insults, under pseudonyms, in the comment stream under news stories on NOLA.com.
Engelhardt was incensed. He ordered an investigation that eventually unmasked at least two other federal Justice Department employees posting online about the case. One was Washington, D.C.-based civil rights prosecutor Karla Dobinski and another a New Orleans-based federal employee that Engelhardt did not name.
Both Dobinski and Perricone penned anonymous musings during the Danziger trial, something Engelhardt detailed at length in his ruling. Perricone, an extremely prolific user of NOLA.com under a series of aliases, had commented for years on the failings of the NOPD, the Danziger case and other criminal trials of police officers and crooked politicians.
The judge found that the amount of commenting, when combined with other problems with the government’s case, was so troubling that he didn’t need to determine whether it actually prejudiced the jury. But he did attempt to assess whether it had. He noted that seven of the 12 jurors indicated on pretrial questionnaires that they read NOLA.com, and those seven had slightly more negative opinions of NOPD officers’ honesty than the five who didn’t use the site.
Legal experts say that if Engelhardt wanted to measure the exact influence of anti-NOPD comments on jurors, the judge could have called them in for a hearing to probe just that question. Federal rules of evidence allow jurors to testify about “extraneous prejudicial information” that was “improperly” brought to their attention.
But in his order, Englehardt dismissed that option, saying that if a hearing were held, it is unlikely jurors would be able to recall much about their previous online news consumption, particularly if questioned about whether they read comments posted years before.
The New Orleans Advocate tried to contact each of the 12 jurors in the Danziger case. Farlough and Robin were the only ones who agreed to be interviewed. Both said they knew nothing about any online comments — by Perricone, Mann or anyone else. They made their decision, as the judge ordered them to, based on what they heard in the courtroom.
“I think it’s a folly, all of this supposed posting of things on NOLA.com,” Robin said. “We would not have been selected as jurors if we didn’t have the integrity to follow the court’s order. We rendered the verdict that we thought was fair and proper. To now reverse that verdict seems a bit ludicrous.”
He clearly recalled the judge’s edict, issued nightly, as jurors left the courthouse for the day. They were forbidden from reading about the case, forbidden from talking about it, forbidden from watching television news.
“If any publicity about this case has come to your attention before this moment, you must strike it from your minds and completely disregard anything that has come to your attention outside this courtroom,” Engelhardt told them on June 23, 2011, the day the jury was sworn in, according to transcripts. “From this moment on, you are not to read any newspapers or other accounts of this trial, nor are you to view or listen to any television news or radio reports, or any other accounts, of this trial, including those available on the Internet. …”
Each of the dozen jurors honored those instructions, Robin and Farlough said. No one ever mentioned a news story, or any accompanying online blustering. Both described the suggestion that they’d been poisoned by online anonymous tirades as “insulting.”
“We knew how important this trial was. We realized the gravity of what we were facing, not just for the families and not just for the officers, but for the city as a whole, for the state, what it could mean for the future,” Farlough said. “We worked very hard to see that justice was done, whatever that justice was, whether guilty or not guilty; we were trying to do what was right.”
The officers who arrived at the Danziger Bridge that day had responded to a radio call describing a fellow officer who was possibly in danger. They believed the people they shot were armed and firing at them, defense attorneys argued at trial.
In the end, the jury convicted the police officers of spraying unarmed pedestrians with gunfire. Two people were killed, 17-year-old James Brissette and a 40-year-old mentally handicapped man named Ronald Madison. Four others were injured.
But Robin said it was what happened next that most convinced him of the guilt of the five police officers: They engineered a cover-up so vast it included a planted gun, invented witnesses, and a man arrested on a bogus charge of attempting to kill police officers. The lies went on for years.
The jury examined 400 pieces of evidence. They listened to 60 witnesses describe in detail the bloodbath: Susan Bartholomew, a mother, hid behind a concrete barrier with her children as her right arm was blown off in the gunfire. Teenagers were shot multiple times. Lance Madison was arrested and falsely accused of attempted murder, moments after his handicapped brother was shot dead as they ran from police.
“The fact is that Ronald Madison is no longer here. James Brissette is no longer here. Susan Bartholomew is minus one limb as a result of what happened to them,” Farlough said. “And they have to relive this again. I’m sure for the families of these people and for the victims themselves, for the officers’ families, this has to be unbearable.”
For more than six weeks, Farlough shared a courtroom with them all. He never met them, but he felt that, in some small way, he got to know them.
When the jury read its verdict, around noon on Aug. 5, 2011, jurors felt that they had finally handed justice to the people who survived those moments on that bridge, and to the families of the two who didn’t.
“But two years later, here we go again,” Robin said. “Like we accomplished absolutely nothing.”
Farlough says he still holds out hope for the parties involved, though he won’t be a part of it the next time around: “Hopefully, justice will eventually prevail. Hopefully, these people can find the peace that they all deserve.”