Defendants ask for removal
Lawyers for five former New Orleans police officers who won new trials in connection with deadly shootings after Hurricane Katrina are raising questions about when a federal prosecutor learned of a colleague’s anonymous online postings.
In September, a judge said postings by prosecutor Karla Dobinski were among the reasons he granted a new trial to officers convicted in the Danziger Bridge case.
Defense lawyers asked Thursday to have Bobbi Bernstein questioned about whether she knew about Dobinski’s posts before they were made known to the court on May 15. Their motion says Bernstein, a senior prosecutor in the U.S. Department of Justice’s civil rights division, should be disqualified from the case if she knew about the postings and failed to reveal that to the court.
The Justice Department responded to emailed requests for comment with a statement: “The department believes the jury verdict in the case was fair and accurate and is appealing the court’s order granting a new trial. The government will respond to allegations in the appropriate forum at the appropriate time.”
Less than a week after Katrina’s 2005 landfall and the levee breaches that plunged parts of the city into chaos, police shot and killed two unarmed people and wounded four others on the Danziger Bridge.
Former police Sgts. Kenneth Bowen and Robert Gisevius and former officers Anthony Villavaso and Robert Faulcon were convicted of federal charges in the shootings and a subsequent cover-up. Retired Sgt. Arthur “Archie” Kaufman, who was assigned by the Police Department to investigate the case, wasn’t charged in the shootings but was convicted of orchestrating the cover-up.
U.S. District Judge Kurt Engelhardt ordered a new trial in September.
Former U.S. Attorney Jim Letten resigned in December 2012 after two of his top deputies — Sal Perricone and Jan Mann — acknowledged they had posted anonymous comments on nola.com, The Times-Picayune’s companion website, about cases their office had handled, including the Danziger Bridge investigation.
Dobinski’s postings came to light later and, according to the defense lawyers, were noted in a report by John Horn, an attorney appointed to investigate the matter. The defense lawyers said Bernstein, the deputy chief of the Criminal Section of the Civil Rights Division, has a long work history with Dobinski and “reviewed Special Attorney John Horn’s draft reports, which contained references to Dobinski as early as January 2013.”
Those are among the factors that raise questions about Bernstein’s knowledge of the online postings, the defense said.
After a jury convicted the five former officers in 2011, their attorneys argued that prosecutors’ online comments and leaks to news organizations were part of a “secret public relations campaign” that deprived their clients of a fair trial.
During a hearing in June 2012, Engelhardt said it appeared federal prosecutors didn’t conduct a “full-blown investigation” after The Associated Press and The Times-Picayune published articles about former New Orleans Police Lt. Michael Lohman’s anticipated guilty plea while his case was under seal. In December 2012, the Justice Department appointed Horn to investigate the alleged leak and ensure compliance with Engelhardt’s order.
In August, The AP and Times-Picayune urged Engelhardt to unseal all of the court documents related to the Justice Department’s probe of the prosecutorial misconduct allegations.
Engelhardt unsealed more than 400 pages on Friday, but he ruled that other records can’t be publicly released yet due to a “compelling interest of confidentiality.” He kept secret Horn’s investigation, which the judge has previously described as submitted over several reports, but he will allow defense attorneys to obtain it under seal.
One of the unsealed documents is a report that Mann submitted to Engelhardt in June 2012, in which she outlines prosecutors’ initial attempts to identify the source of leaks to the media.
In the report, Mann emphasized that prosecutors were particularly anxious to keep Lohman’s cooperation under wraps. Mann said Bernstein had sent her an email on the day that Lohman signed his plea agreement in which she expressed concern for his safety if word of his cooperation got out.
“Are there special precautions we can take to make sure things stay quiet until we’re ready to take the plea?” Bernstein wrote. “One thing I would suggest … is that none of us forward this email to anyone, even highly trusted colleagues, and that we disseminate the information as-needed, in-person.”
Associated Press reporter Michael Kunzelman and Advocate staff writer Laura Maggi contributed to this report.