An evenly divided federal appeals court declined Tuesday to reconsider the government’s bid to restore the convictions of five New Orleans police officers in the Danziger Bridge shooting, a case turned on its head by an online commenting scandal involving federal prosecutors.
The 5th U.S. Circuit Court of Appeals deadlocked 7-7 on a request that the full court reconsider last year’s ruling by a three-judge panel that upheld a new trial for the officers. The tie vote means that 2-1 ruling stands, so prosecutors now must decide whether to retry the officers or take their request to the U.S. Supreme Court.
Federal prosecutors have claimed that U.S. District Judge Kurt Engelhardt overstepped his bounds in 2013 when he granted a new trial to the five officers, who are accused of firing on innocent people, killing two, including a mentally handicapped man, and wounding four others, a few days after Hurricane Katrina and then conspiring to cover up their actions.
Engelhardt, in his landmark ruling, cited “grotesque prosecutorial misconduct” by three government lawyers who posted anonymous comments about the Danziger case under news stories published on nola.com. He ruled that their actions were so egregious that he didn’t need to meet the usual legal standard of determining whether the misconduct had, in fact, prejudiced the jury.
The Sept. 4, 2005, shooting claimed the lives of 17-year-old James Brissette and 40-year-old Ronald Madison. Former New Orleans Police Department Sgts. Arthur “Archie” Kaufman, Kenneth Bowen and Robert Gisevius and former Officers Robert Faulcon and Anthony Villavaso later were convicted of civil rights violations.
Voting in favor of granting a rehearing were Chief Judge Carl Stewart and Judges W. Eugene Davis, James Dennis, Edward Prado, Leslie Southwick, James Graves Jr. and Gregg Costa. They all joined Stewart in a dissent that said the officers failed to prove they had been prejudiced by newly discovered evidence that “probably” would have resulted in an acquittal if it had been introduced at trial.
Voting against a rehearing were Judges E. Grady Jolly, Edith Jones, Jerry Smith, Edith Clement, Priscilla Owen, Jennifer Walker Elrod and Catharina Haynes.
Jones and Clement voted to uphold Engelhardt’s ruling in the three-member panel’s review last year, saying the government’s conduct had been so flagrant that a new trial was warranted due to the “extraordinary” circumstances of the case.
Engelhardt originally handed sentences of at least 38 years to four of the officers following their 2011 convictions. Kaufman, who had been implicated only in the cover-up, received six years.
All but Kaufman remain behind bars, as Engelhardt has denied bail for the other four officers.
Follow Jim Mustian on Twitter, @JimMustian.