U.S. District Judge Kurt Engelhardt almost had me.
In his epic 129-page ruling overturning the jury convictions of five former New Orleans cops for their roles in the post-Katrina massacre of unarmed civilians on the Danziger Bridge, Engelhardt, the judge who oversaw that landmark 2011 trial, aims a barrage of righteous anger at federal prosecutors who have since been outed as serial online commenters.
Engelhardt bestows a long list of labels on the behavior of two former assistants to former U.S. Attorney Jim Letten, Sal Perricone and Jan Mann, from egregious to repugnant, wanton to reckless.
He chafes at how hard it was to unearth the full story about a previously unknown commenter from the Justice Department’s Civil Rights Division, which, rather than Letten’s office, oversaw the case. The first word he got was that Karla Dobinski, who commented under the name “Dipsos,” was an employee, then an attorney, and only then the head of the “taint team” charged with making sure the defendants’ rights were protected.
“Try as it might, the Court cannot fathom why at least three … highly intelligent, experienced and respected officials of DOJ thought posting comments publicly online was a good idea, other than to have their corrosive opinions on public display for all to see, read and accept as correct,” he wrote.
Me neither. It’s all true, and it’s all infuriating. Perricone and Mann in particular deserve whatever repercussions they might face. Letten, who it turns out did know about Mann’s activity before it became public (according to her, anyway), also had to go. He allowed such behavior to fester on his watch and to destroy cases, most notoriously the pursuit of wealthy landfill owner Fred Heebe, whose well-paid lawyers unmasked Perricone and Mann in the first place.
Where Engelhardt loses me is in his conclusion: That the jury’s verdict couldn’t stand.
Even if the comments did create a “21st Century carnival atmosphere” — as anonymous comments generally do — that carnival took place well outside the courtroom.
There’s no evidence that the Justice Department lawyers who prosecuted the case behaved badly or knew that their local counterparts did. Perricone and Mann were major players in the cases that Letten’s office handled, but for the Danziger case they were pretty much bystanders.
There’s no evidence that jurors would have seen the comments belittling New Orleans cops as, well, “a collection of self-centered, self-interested, self-promoting, insular, arrogant, overweening, prevaricating, libidinous fools,” to borrow a description Perricone posted using one of his cyber-pseudonyms on a story about the other major post-K police prosecution, the Henry Glover case. Or that they would have read his portrayal of federal authorities as the city’s white knights. Or that they would have defied Engelhardt’s order and read accounts of the trial while it was happening, when some of the comments in question were posted. Or, for that matter, that they would have given such comments undue weight, given that jurors had no way to know the source.
Engelhardt argues that, based on pre-trial questionnaires submitted by jurors, regular readers of nola.com, where the offending comments were posted, were somewhat more skeptical of police than nonreaders. But he also acknowledges that many things could have shaped their attitudes.
He argues he didn’t need to make a direct connection, that, “under circumstances as extraordinary and offensive as these, jurisprudence indicates that a showing of prejudice is not necessary.”
Instead, Engelhardt’s ruling folds in concerns he’d previously expressed but which didn’t derail the trial, including his skepticism over the truthfulness of the defendants’ fellow cops who’d pleaded guilty in exchange for a break, and hangs his final decision on the “totality of the circumstances.”
The problem is that the totality includes more than just the many, many offenses that Engelhardt catalogues. It also includes the fact that, all that aside, this was a good prosecution.
The essentials of the case remain intact. The victims who were accosted by police that fateful day were unarmed, including the two who died, teenager James Brissette and mentally disabled adult Ronald Madison. Police staged an elaborate cover-up that included the planting of a gun, the falsification of witnesses, and the false arrest of Madison’s brother Lance. The probability that a second jury will reach the same conclusion is high.
Engelhardt wrote that he didn’t order a new trial lightly, that he understands the anguish a replay will cause for the surviving victims, their families and the community. He says he wishes it didn’t have to happen.
I just wish I were more convinced that it does.
Stephanie Grace can be contacted at email@example.com.