Two federal appeals court judges wasted no time Wednesday throttling the government’s argument that U.S. District Judge Kurt Engelhardt went overboard in granting new trials to five New Orleans police officers convicted in the shooting of six unarmed people on the Danziger Bridge and an elaborate cover-up in the aftermath of Hurricane Katrina.
Judges Edith H. Jones and Edith Brown Clement, of the 5th U.S. Circuit Court of Appeals, strongly signaled that they would uphold Engelhardt’s blockbuster 2013 order, in which he called a new trial “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.”
Jones and Clement expressed clear disdain for both the federal prosecutors involved in an online commenting scandal and what they saw as a government attempt to sweep it under the rug.
The third member of the appeals court panel, Judge Edward Prado, offered less insight into his views on the government’s appeal.
The reproach that Jones and Clement delivered to Justice Department attorney Elizabeth Collery suggests that a new trial awaits former NOPD Sgts. Arthur “Archie” Kaufman, Kenneth Bowen and Robert Gisevius and ex-Officers Robert Faulcon and Anthony Villavaso, barring a further appeal to the full appeals court.
The latter four officers were all convicted and sentenced to lengthy prison terms for opening fire amid the chaos after Katrina, leaving 17-year-old James Brissette and 40-year-old Ronald Madison dead and four others injured.
Kaufman, then a homicide detective, was accused of orchestrating a cover-up, neglecting to collect any evidence, planting a gun and crafting a false report that included invented testimony from made-up witnesses.
Prosecutors alleged that the officers sought to falsely pin the shootings on Lance Madison, one of the civilians on the bridge, claiming he had tossed a gun into the canal. Madison was booked on trying to kill the officers.
Madison sat in the front row Wednesday, among a courtroom gallery crowd of about 65 spectators there to hear arguments over the government’s claim that Engelhardt failed to show that the jury at a 2011 trial was tainted by the online comments of former senior federal prosecutor Sal Perricone and a Justice Department lawyer, Karla Dobinski.
Jan Mann, former U.S. Attorney Jim Letten’s second-in-command, also posted biting remarks beneath some nola.com stories, but only after the Danziger trial. Mann, however, was in charge of an early internal investigation, following Perricone’s outing, of the online hijinks. In Engelhardt’s view, she lied about the extent of the misconduct, including her own, within the office.
Perricone, Mann and Letten all left the office in 2012, casualties of the scandal.
Jones and Clement quickly seized on the government’s claim that there was no evidence the online commentary filtered into the jury room, or that, as the officers’ lawyers claim, it helped prod guilty pleas and suspect testimony from other officers.
While acknowledging the online misconduct, Collery argued that Engelhardt should have stopped short of a new trial for the five officers, instead leveling sanctions or formal complaints against prosecutors.
“Alternative remedies are meaningless in this case,” Clement retorted. “Thank God there are no other cases like this in the country.”
Jones, who herself was the subject of a formal investigation but was cleared of misconduct for allegedly racist comments she made during a speech, dismissed the idea that the officers accused in the Danziger case wouldn’t have been influenced by the anonymous online catcalls and crowd-baiting by the misbehaving prosecutors.
“You don’t think people who knew they were going to be indicted or potential witnesses at trial were following blogs?” the judge asked. “Those of us who have been the target of unfair investigations know one gets a supernatural interest” in such chatter.
The judges homed in on Engelhardt’s November 2012 order calling for a new investigation into both the commenting scandal and alleged government leaks to news media. That investigation, headed by a pair of special federal prosecutors from Georgia, ultimately turned up an additional government blogger in Dobinski, who posted several times under the moniker “Dipsos.”
Dobinski had headed up a federal “taint” team charged with screening evidence in the Danziger case for “immunized” material, ostensibly a safeguard for the defendants. Engelhardt found that her online postings sought to stir up a steady drumbeat of prosecution-friendly online posters.
Engelhardt said he had to pull teeth to get the investigators to reveal Dobinski’s name and role in the case, which he learned only four months later.
Clement said the government was “deliberately misleading.”
And while Collery claimed that all Engelhardt had to do was ask for the name, Jones wasn’t buying it.
“It still seems a little sleazy, doesn’t it?” she said.
In his 129-page order for a new trial, Engelhardt said the “carnival atmosphere” the prosecutors incited was so egregious that he didn’t need to find that the jurors were swayed by the online postings — the usual legal “prejudice” standard in such cases.
“The critical mass — the ‘totality of the circumstances’ or ‘cumulative effect’ — of these actions is more than this court can bear,” Engelhardt wrote.
On Wednesday, Clement and Jones seemed to back Engelhardt’s reliance on a footnote in a 1993 U.S. Supreme Court ruling. In that case, the high court laid out a scenario in which a trial gaffe “that is combined with a pattern of prosecutorial misconduct might so infect the integrity of the proceeding” as to warrant relief, “even if it did not substantially influence the jury’s verdict.”
The case, Brecht v. Abrahamson, is “exactly on point here,” Clement said.
“I think I’ve found enough to cast doubt on the integrity of the process,” Jones added.
Kaufman’s attorney, Billy Gibbens, received a warmer welcome from the appeals panel than did prosecutors. Gibbens argued that the government, in failing to reveal the extent of the online scandal or to immediately identify Dobinski, “truly thought this would never come to light.”
Gibbens insisted that the case was directly marred by the online commenting.
“I think this misconduct affected false testimony at trial,” Gibbens said. He cited Engelhardt’s doubt over the credibility of four of the five former NOPD officers who pleaded guilty to reduced charges.
The fact that prosecutors commented anonymously made the misconduct “much more insidious,” Gibbens argued.
“Here there was a conscious effort by Perricone and Mann to shape public discourse,” he said.
Gibbens and Collery both declined to comment after the hearing.
Tim Meche, who represented Villavaso at the trial, said the appeals panel “rightly focused on the government misconduct” and a lack of major disciplinary action against the online posters.
“Yeah, it’s not fair to the victims” of the Danziger shootings and cover-up, Meche added, echoing an argument from Collery. “But whose fault is that?”
Madison declined to comment afterward, citing his possible appearance as a witness at a future trial.
Romell Madison, the victim’s brother, left the courtroom dismayed. Whatever Perricone and Dobinski typed anonymously, he said, paled compared to a swell of public backing for the other side.
“All I saw was support for police in the blogs,” he said. “They’re more worried about the few that had something to say for prosecutors. It’s terrible.”
It’s unclear when the panel might issue its ruling.
Follow John Simerman on Twitter, @johnsimerman.