Feds to appeal ruling for new Danziger trial

A month after a federal judge tossed out the civil rights convictions of five former New Orleans police officers in the Danziger Bridge shooting case, prosecutors have filed a notice they intend to appeal the decision.

Four New Orleans police officers were found guilty in August 2011 of shooting innocent civilians on the Danziger Bridge after Hurricane Katrina, killing two and wounding four others. Those same defendants, and a fifth officer, were also convicted of orchestrating a coverup that prevented the truth from getting out for years.

But last month, U.S. District Court Judge Kurt Engelhardt threw out the convictions, finding that “grotesque” prosecutorial misconduct had tainted the case. Engelhardt, who had expressed some displeasure with aspects of the government’s case during trial and at sentencing, based much of his decision on anonymous online commenting by federal prosecutors.

Those comments — penned beneath stories about the New Orleans Police Department, the Danziger case and the trial itself on the website nola.com — were not written by members of the trial team. But a former top official in U.S. Attorney Jim Letten’s office did write comments about the Danziger case, as did a member of the U.S. Department of Justice’s civil rights team who was tangentially involved in the prosecution.

Since Engelhardt’s ruling, the U.S. Department of Justice had been silent about whether it intended to ask the U.S. 5th Circuit Court of Appeals to review the decision. The filing made late Thursday was not the appeal itself, but simply a notice that the government plans an appeal.

Dane Ciolino, a Loyola Law School professor who has followed the case closely, said the notice may not mean an appeal will actually be filed, since the solicitor general will likely have to sign off first.

Some legal commentators, Ciolino among them, have been skeptical of prosecutors’ chances on appeal, noting that the appellate courts tend to give deference to trial judges who overturn a jury verdict.

“Chances of reversal are slim under the most deferential standard of review, which applies here,” Ciolino said. “An error is not enough. It must be an error that amounts to an abuse of discretion.”