Broussard won’t take stand in trial over Jeff flooding

As Hurricane Katrina bore down on the New Orleans region in August 2005, Jefferson Parish officials made a fateful decision: evacuate the 220 pump-station workers crucial to keeping homes and businesses in the parish from flooding during a storm.

The move infuriated thousands of owners of flood-damaged property, but — surprisingly, perhaps — it wasn’t the end of then-Jefferson Parish President Aaron Broussard’s political career. That came years later, as federal investigators uncovered corruption in his administration, leading to his guilty plea to conspiring to take bribes and stealing from parish government.

As a result, when the controversial decision to abandon ship finally gets a hearing at 24th Judicial District Court this week, the man whom many consider responsible for the damage will be hundreds of miles away in a federal prison in North Carolina.

“We will be playing the (2007) video deposition from Aaron Broussard because the defense is not bringing him in from prison,” said Darleen Jacobs, an attorney for a group of class-action plaintiffs that numbers about 30,000. “He will not be making an appearance in the courtroom.”

Although Jefferson Parish suffered no levee breaches like the ones that inundated most of New Orleans, the parish’s inability to pump out the massive amount of rainfall Katrina brought, along with water pushed into canals from Lake Ponchartrain, caused a huge section of the east bank to flood. The water tended to be much shallower than the seawater that drowned New Orleans, and it was pumped out much more quickly, but it still wrought huge damage. Tens of thousands of homes had to have new wallboards and flooring installed, and they often needed major electrical and heating, ventilation and air-conditioning repairs.

Jefferson Parish attorneys have not conceded the failure to operate the pumps caused the massive flooding, and the trial — which will begin with jury selection Monday — is expected to center on thorny legal questions about whether the parish is immune from liability and whether parish officials’ actions rose to the level of “willful and wanton misconduct.”

The witnesses will include hydrologists, meteorologists and elected officials involved in storm preparation and response.

Parish attorneys, who have declined to comment in the run-up to the trial, have said in court filings that state law makes clear that political subdivisions are immune to liability for the actions of their representatives as they prepare for and respond to disasters.

But Jacobs said recent rulings by the Louisiana 5th Circuit Court of Appeal indicate that is not always the case, and Judge John Peytavin denied a 2008 motion by the defense to remove the parish as a defendant in the suit.

As for the issue of willful misconduct, Jacobs said testimony will show Broussard was aware of the likely consequences of the decision to evacuate the pump operators. She said the plaintiffs also expect to show revisions to the parish’s so-called “doomsday plan,” which changed the evacuation point for the operators from the nearby airport to Mount Hermon in Washington Parish, were not done with the required review and input.

She said sending pump-station operators more than 100 miles away with no clear plan on how they would return played a key role in leaving Jefferson Parish’s 22 pump stations unmanned for more than a dozen crucial hours after the storm.

The question of who exactly sent the operators away may remain forever murky. In Broussard’s statements in the months after Katrina, he took responsibility for the move, borrowing Harry Truman’s mantra: “The buck stops here.”

But years after the lawsuits were filed — and after he was re-elected by Jefferson Parish voters in 2007 — Broussard denied knowledge of the “doomsday” scenario and, specifically, of the decision to send the pump operators away in the event of danger. In the 2007 deposition taken by Jacobs, he responded to a question about evacuating the operators by saying, “I made no decision in that regard.”

Bill Quigley, a law professor at Loyola University, said willful misconduct is a considerably higher standard than negligence, which is the typical standard in civil trials.

“It really is nudging up against intentional,” he said. “It’s a substantially higher burden for the prosecutor to prove than a typical negligence case.”

Misconduct does not have to include malice, “but you’ve got to be in the neighborhood,” he said.

Quigley said the jurors will be given specific instructions on how to interpret the willful-misconduct standard, and that it can be proven through circumstantial evidence and the testimony of witnesses other than Broussard.

Plaintiffs’ attorneys, he said, will have to provide “enough dots for the jury to connect to say this was not only predictable but nearly guaranteed.”

Even jury selection adds a level of complication. The defense asked that the trial be moved to another parish, saying too many people in the Jefferson jury pool were affected by the flooding and know about Broussard’s legal troubles. Peytavin, a retired judge brought in from St. James Parish, is hearing the trial because all 16 of the local court’s judges disqualified themselves because of connections to witnesses and people with storm-damaged property.

Peytavin has indicated he will see how jury selection goes before deciding whether to move the trial.

Quigley said the judge was wise to hold off on deciding on the change-of-venue request.

“Most lawyers believe cases are won and lost in jury selection, and I suspect in this case that will be the case as well,” he said.