A federal judge’s decision to void a civil rights triumph for the U.S. Department of Justice will be put to the test on Wednesday, six miles and nearly 10 years down the road from a bloody scene on a vertical lift bridge that would come to define New Orleans police corruption to the world.
The 5th U.S. Circuit Court of Appeals is set to hear oral arguments at 9 a.m. over U.S. District Judge Kurt Engelhardt’s jaw-dropping 2013 order granting new trials to five New Orleans police officers convicted of perpetrating or covering up the shooting of six unarmed people on the Danziger Bridge on Sept. 4, 2005, killing two.
Engelhardt found “grotesque prosecutorial misconduct” by the feds, locally and from afar. The bad behavior came largely in the form of online hijinks by a few federal prosecutors, and what Engelhardt saw as an underhanded attempt to mislead him over the extent of the now-notorious commenting scandal that ushered longtime U.S. Attorney Jim Letten out of office.
So horrendous were the government’s misdeeds, Engelhardt ruled, he didn’t even need to find they had tainted the jury.
The key questions for the appeals court: Did Engelhardt go rogue in reversing the guilty verdicts? And, even if he did, must deference be paid to his ruling?
The appeals court, having received hundreds of pages of briefings, will allow 30 minutes of argument from the government and the same for the defendants as a group.
Riding in the balance are new trials for former NOPD Sgts. Arthur “Archie” Kaufman, Kenneth Bowen and Robert Gisevius, and ex- Officers Robert Faulcon and Anthony Villavaso.
The latter four were all convicted and sentenced to lengthy prison terms for opening fire amid the chaos that trailed Hurricane Katrina on a bridge over the Industrial Canal that was named after former Gov. Huey P. Long’s personal lawyer.
Kaufman, then a homicide detective, was accused of stage-managing a group cover-up, including a failure to collect any evidence, the planting of a “clean” gun, and the creation of a false report that included invented testimony from made-up witnesses supporting the idea that Lance Madison, one of the civilians on the bridge, had tossed a gun into the canal. Madison was booked with trying to kill the officers.
Several other officers pleaded guilty and testified for the prosecution over a minute-long firing spree that left 17-year-old James Brissette and 40-year-old Ronald Madison dead and four others injured.
Over weeks of riveting testimony, numerous victims and officers painted a picture of a band of cops rolling up in a commandeered U-Haul truck, responding to a report of officers down and a loose description of a suspect. They proceeded to fire an indiscriminate barrage of bullets from their service revolvers and personal firearms at a group of fleeing innocents, then falsely attested that the people on the bridge were armed, the jury heard.
Engelhardt initially sentenced Bowen and Gisevius to 40 years each in prison. Faulcon got 68 years and Villavaso 38, while Kaufman received a 6-year sentence from their convictions on a 27-count indictment charging them with civil rights, firearms, conspiracy and obstruction counts.
All but Kaufman remain behind bars, and they are likely to stay there until a new trial is held — or the original verdict is restored. Engelhardt denied bail for the four other officers.
Justice Department attorneys argue that Engelhardt went far beyond his role as impartial jurist in granting the five cops a new trial, engineering his own probe of the anonymous online grenades lobbed by Sal Perricone and Jan Mann, two of Letten’s top deputies, beneath Nola.com stories.
Letten’s abrupt exit came in December 2012, little more than a week after Engelhardt ordered up a fresh probe into the online banter. The judge had also requested more scrutiny of a media leak in 2010 of an impending guilty plea by former Lt. Michael Lohman, for a role in covering up the shootings.
Nine months later, Engelhardt granted new trials for the Danziger cops.
Engelhardt’s investigation, led by a pair of federal prosecutors from Georgia, unmasked a third U.S. Justice Department attorney, Karla Dobinski, who posted comments about the Danziger case during trial.
Dobinski was closely involved in the case. She led a “taint” team charged with screening evidence for “immunized” material, a protection for the defendants.
In Engelhardt’s view, Perricone’s vituperative online commentary, mocking defense attorneys and castigating the NOPD, helped fuel a “prejudicial, poisonous atmosphere” around the Danziger case.
Dobinski, he found, was goading online commenters to keep up a prosecution-friendly drumbeat during the trial.
The judge found other problems with the prosecution as well, including credibility issues with testimony from four of the five former NOPD officers who had pleaded guilty to reduced charges.
Threats of perjury prosecution against officers who might have helped the defense also factored into his decision to toss the convictions, Engelhardt wrote.
“The public must have trust and confidence in this process,” he wrote. “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.”
Engelhardt justified his highly unusual ruling over 129 pages, arguing that the government misbehavior violated the public trust.
“The Court determines that, in this instance, prejudice need not be shown; and even so, sufficient prejudice exists,” he wrote. “The critical mass — the ‘totality of the circumstances’ or ‘cumulative effect’ — of these actions is more than this Court can bear.”
The 5th Circuit will weigh whether Engelhardt needed to make a stronger case that the jury was prejudiced by the online commentary — barbs whose authorship was unknown to jurors.
In the government’s appeal, Justice Department attorney Elizabeth Collery scorns Engelhardt for declaring flatly that jurors “would have been exposed to the general zeitgeist of the community, which was being purposely influenced by Perricone and, later during trial, Dobinski.”
Collery argues that Engelhardt veered out of bounds with his “unorthodox investigation” and that the appeals court should remove him from the case.
While acknowledging Perricone and Mann “indeed committed misconduct” and that Dobinski “exercised poor judgment,” the government argues that none were part of the trial team and “there is no suggestion that the jury saw the comments they posted during trial.”
Collery argues that Engelhardt displayed “brazen antagonism” toward federal prosecutors, particularly in lambasting their decisions over whom to prosecute, and which cops to grant leniency in exchange for their testimony.
“Using liars lying to convict liars is no way to pursue justice,” Engelhardt once griped.
Tim Meche, who represented Villavaso at trial, said that news coverage of the case had already stacked the deck against the officers.
The bad publicity, including salacious admissions by other officers who pleaded guilty and strident press conferences from Letten, “was the yoke around our neck, and that’s what killed us,” Meche said. “We were the poster boy for police corruption in New Orleans. That train ran smack over us, despite the fact the evidence didn’t really support that theory.”
Still, he said the posts by Perricone and Dobinski contributed to a climate that led some officers to plead guilty and testify falsely for the prosecution. Mann, Letten’s second-in-command, also posted online, but only after the Danziger trial.
The online posts “contributed to those witnesses who crossed the line. It caused witnesses to say things that were not true. And we believe the poisonous atmosphere filtered into the jury,” Meche said.
In his ruling, Engelhardt made some effort to show jury prejudice from the online postings. Though jurors were never asked if they read the online commentary, Engelhardt said their responses to a questionnaire suggest that the seven jurors who acknowledged visiting Nola.com were a bit less trusting of New Orleans police than the others.
To overturn Engelhardt’s ruling and forestall a new trial, the appeals court would need to make a rare finding that the judge abused his discretion. That is “the most deferential standard of review that there is under appellate law,” said Loyola Law professor Dane Ciolino.
“Unless the district judge has wholly abandoned his judicial role or has ignored plain facts or disregarded law, there’s not going to be a reversal,” Ciolino said. “That being said, this is no ordinary case. It has taken, over the course of the last nearly a decade, one unusual turn after the next.”
Usually, new trials are granted based on some problem that takes place at trial — bad testimony or a key piece of evidence that crops up later. In this case, it’s a prosecutorial peanut gallery.
“What they did is clearly wrong. This isn’t a case where there’s a question about whether something improper happened,” Ciolino said. “It’s just, what should be done about it?”
Many other high-profile criminal defendants and convicts have tried to make legal hay from the online posting scandal, from former Jefferson Parish President Aaron Broussard and Central City crime boss Telly Hankton to former New Orleans Affordable Homeownership Director Stacey Jackson and ex-NOPD Officer Gregory McRae in the Henry Glover case.
Only in the Danziger case have criminal defendants succeeded with the tactic.
Unlike Engelhardt, U.S. District Judge Ivan Lemelle summoned two jurors before ruling against a new trial for former New Orleans City Councilwoman Renee Gill Pratt. Lemelle found “no evidence to suggest that the jurors knew of or were exposed to Perricone’s comments either before or during trial.”
Attorney Eric Hessler, who represented Gisevius at trial and also represents the Police Association of New Orleans, said fallout from the Danziger case includes one of the most wide-ranging police consent decrees in the nation.
Without the dual black eyes of Danziger and another post-Katrina horror story — the Henry Glover police killing and body-burning case — the massive, $55 million overhaul of NOPD policies and procedures might never have materialized, Hessler said.
The commenting scandal revealed something bigger, Hessler insisted.
“That was the biggest police corruption trial certainly out of Katrina, and I’d venture to say one of the most well-known in the country. They wanted convictions. They wanted to make sure they had a consent decree down here,” Hessler said of the DOJ’s Civil Rights Division.
“You can’t trust a verdict that was delivered under those circumstances in light of what we now know,” he added. “The bigger picture was to crack open a window into what really goes on in some of these political prosecutions. We’re not here because of anything other than wrongdoing by the government.”
Meche summed up the debate that the appeals court will entertain.
“They’re arguing (Engelhardt) abused his discretion. We’re arguing it would have been abuse of discretion not to grant our motion” for a new trial.
Follow John Simerman on Twitter, @johnsimerman.