In their bid to restore the convictions of five New Orleans police officers in the Danziger Bridge shooting, federal prosecutors have taken aim at the judge who ordered a new trial in the notorious case, accusing him of overstepping his bounds and exaggerating the impact of an online commenting scandal that roiled the U.S. Attorney’s Office.

The U.S. Justice Department, in a strident court filing, has called into question the impartiality of U.S. District Judge Kurt Engelhardt and taken the unusual step of asking that he be recused from future proceedings should the officers be retried.

Engelhardt last year turned the Danziger case on its head http://theadvocate.com/news/9913084-123/grand-canyon-yellowstone-couldnt-meet">in unforgettable fashion, castigating the U.S. Attorney’s Office over what he condemned as “grotesque prosecutorial misconduct” after it emerged that prosecutors had posted anonymous and inflammatory comments, even amid the 2011 trial, under news accounts of the case published on nola.com.

In tossing out the guilty verdicts, the judge could not point to evidence that jurors had been tainted by — or had even seen — the online comments. But he ruled that prosecutors’ behavior had been so extraordinarily inappropriate that “a showing of prejudice” wasn’t needed.

The ruling dealt an embarrassing setback to the government, which had considered the convictions a landmark civil rights victory in a brazen police shooting in the wake of Hurricane Katrina that killed two people, including a mentally handicapped man, and injured four others. Barring a reversal from a higher court, prosecutors face the prospect of retrying the officers in a proceeding that likely would not begin before the 10th anniversary of the storm.

The case remains in limbo more than a year after Engelhardt’s ruling, though activity has picked up in recent weeks as the parties have submitted various filings to the U.S. 5th Circuit Court of Appeals, which will decide whether to reinstate the officers’ convictions on 25 counts.

The Justice Department has fired back at Engelhardt in blunt terms, suggesting in a nearly 200-page court filing that he forfeited his role as neutral arbiter of law and fact when he began to “independently investigate government misconduct unrelated to the fairness of the trial.” In their most pointed comments on the case to date, prosecutors claimed Engelhardt “failed to afford necessary deference to the Executive Branch” in probing the online commenting scandal from the bench rather than trusting the government to root out and punish its own misconduct.

The Justice Department’s brief, which is heavily redacted to shield details of the commenting scandal, was filed at the 5th Circuit over the summer but has not previously been reported by the news media. Defense attorneys for the officers have only responded to a small part of Engelhardt’s rulings but indicated in court filings this month that they would file a separate brief addressing the prosecutorial misconduct and the government’s request that Engelhardt be recused. It’s not clear when the appellate court might entertain oral arguments.

After hearing from five dozen witnesses and examining 400 pieces of evidence during a monthlong trial, a federal jury in New Orleans convicted four police officers — former Sgts. Kenneth Bowen and Robert Gisevius and former Officers Robert Faulcon and Anthony Villavaso — for opening fire on six unarmed people on the Danziger Bridge. The Sept. 4, 2005, shooting took the lives of 17-year-old James Brissette and 40-year-old Ronald Madison and injured four others.

Defense attorneys argued at trial that the officers believed the victims had been armed and were firing at them. But the officers also were found guilty of scheming with a fifth defendant, former Sgt. Arthur “Archie” Kaufman, and others to engineer a cover-up to frame an innocent civilian for shooting at police. That deceit included a planted gun, manufactured witnesses and a man booked on a bogus charge of trying to kill police officers. Several other officers pleaded guilty to playing roles in either the shooting or the cover-up and testified against their former colleagues.

All but one of the officers, who had received sentences ranging from six to 65 years for civil rights, conspiracy, firearms and obstruction-of-justice crimes, have remained incarcerated pending the government’s appeal.

Engelhardt said the “astonishing” police misconduct had not been lost on him, noting he did not dismiss the charges in overturning the officers’ convictions. But he portrayed his September 2013 ruling as an inevitable reckoning for a U.S. Attorney’s Office run amok, basing the decision in large part upon the online ranting of Sal Perricone, a former senior prosecutor who resigned in disgrace after he was unmasked as a prolific nola.com commenter who posted his invective under various pseudonyms.

While Perricone wasn’t involved in the Danziger prosecution, he http://theadvocate.com/news/10409395-123/metro-council-to-consider-taking">commented on the proceedings frequently, mocking defense attorneys and lambasting the NOPD, as he did in other cases. Engelhardt said Perricone’s comments, along with other online comments posted by Karla Dobinski, a civil rights prosecutor in Washington, D.C., contributed to a “carnival atmosphere” that irredeemably poisoned the case and violated the officers’ right to due process. Outraged by the government’s “pertinacious” conduct, Engelhardt ordered — and insistently supervised — an inquiry into the online commenting that he drew heavily upon in deciding whether a new trial was warranted.

“The public must have absolute trust and confidence in this process,” Engelhardt wrote in overturning the verdicts. “Re-trying this case is a very small price to pay in order to protect the validity of the verdict in this case, the institutional integrity of this court and the criminal justice system as a whole.”

In their appeal, prosecutors contend Engelhardt ignored “an impressive body of established Supreme Court and appellate court case law” in tossing out the verdicts without evidence that the case had actually been affected by the online comments. While acknowledging Perricone’s comments had been “offensive and inappropriate,” the government claims Engelhardt focused his decision too much on “the offensiveness of this conduct rather than its potential for harm.” They maintained the officers received a fair trial and noted they “were not tried in front of anonymous commenters on the website of the Times-Picayune.”

Justice Department attorney Elizabeth Collery wrote in the government’s brief that Perricone’s anonymity in the comments should be relevant on appeal, “as it ensured that his position as an (assistant U.S. attorney) would not cause his comments to exert an undue influence on potential jurors.” It’s “highly doubtful,” Collery contended, that any jurors “were exposed to and remembered Perricone’s postings, which were indistinguishable from the comments of others.”

“Even before the Internet age, people were exposed to chatter about high-profile criminal cases as they went about daily life,” she wrote. “Moreover, an anonymous comment on the Internet carries no more weight than the opinion of the garrulous customer in the adjacent barber’s chair, which is to say, next to none.”

The Justice Department complained that Engelhardt overreached in his attempts to get to the bottom of the online commenting, saying prosecutors eventually were relegated to serving as “the court’s investigatory adjunct” as defense attorneys sat “sidelined entirely.”

“Because (Engelhardt) attempted to act simultaneously as a neutral arbiter of defendants’ new trial motion and as an independent investigator of government misconduct, an objective observer might reasonably question (his) impartiality,” Collery wrote. “It is questionable whether a district court should ever undertake an independent investigation of federal prosecutors.”

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