We share the frustration of U.S. District Judge Kurt Englehardt with the unprofessional conduct of federal prosecutors who posted anonymous online comments about the trial of former New Orleans police officers convicted of shooting six unarmed people after Hurricane Katrina. That frustration was evident in Englehardt’s controversial decision to overturn the convictions and order a new trial.
But Englehardt’s 129-page ruling seems driven more by anger than reason, compromising the court’s obligation to temper passion with restraint, and to decide cases based on legal principle, not personal caprice. We hope that the Justice Department appeals Englehardt’s ruling, and that a higher court overturns it.
In a commentary that often sounded more like a rant than a ruling, Englehardt expressed understandable rage at the excesses of prosecutors who posted the inflammatory comments about the case. The judge also cited other lapses by the Justice Department in the prosecution of the officers accused of shooting unarmed victims on the Danziger bridge.
But none of the prosecutors who posted the comments were part of the trial team, and we don’t believe that any of the other prosecutorial improprieties cited by Englehardt, however regrettable, justified his decision to order a new trial.
The accused are entitled to a fair trial, but the judge’s order does not clearly establish that the prosecutors’ now-famous anonymous online commentaries specifically swayed jurors. As the judge noted in his long excoriation of the prosecutors, the jurors who read The Times-Picayune’s online coverage of the case seemed to have only a slightly dimmer view of the defense position. And the papers have been full of stories of police misconduct for a long time, so it is difficult to see how any problem of media-driven bias was significant.
Before deciding to overturn the convictions, Englehardt could have called an evidentiary hearing to determine whether the jurors in the case had been tainted by prosecutorial misconduct. The judge gave various reasons why such a hearing might be impractical, but his remedy — a new trial — seems radically more problematic than such a hearing would have been. Englehardt’s extreme solution to the legal issues surrounding this case seems like an exercise in impatience, not impartiality.
On the building that houses the U.S. Department of Justice in Washington, there is a motto that the government succeeds when justice is done.
Despite the prosecutors’ misconduct that marred the trial of the officers involved in the Danziger Bridge shootings and subsequent cover-up, we do not see how justice is served by a new trial.
The judge rightly recognizes that a new trial would be painful to the victims and their families.
There is also little reason to believe that the verdict will be different. Those shot and their families would be victimized three times in this tragedy: on the bridge, by a cover-up of the crimes by the police, and finally by facing a retrial on the events of 2005.