Nearly a decade after a bloodbath erupted on the Danziger Bridge, etching the humble overpass into the national vernacular, the five New Orleans cops convicted in the shootings of six civilians and a subsequent cover-up are on the cusp of getting a new trial.
A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled 2-1 on Tuesday that District Judge Kurt Engelhardt was right to toss out the convictions from the 2011 trial over the deadly shooting spree on the bridge six years earlier, in the chaotic days after Hurricane Katrina.
The watershed ruling, while hugely consequential, came as little surprise, as the two judges writing for the majority seemed extremely skeptical of the government’s arguments at an April hearing in which prosecutors argued that Engelhardt had abused his discretion in ordering a new trial.
U.S. Attorney Kenneth Polite Jr. did not respond to questions Tuesday about what the government plans to do next. Prosecutors could request a hearing before the entire 5th Circuit. The 2005 shootings occurred as frazzled cops responded to a report of an officer down. When the smoke cleared, 17-year-old James Brissette and 40-year-old Ronald Madison were dead, and four others were injured, some grievously.
Convicted at trial were former NOPD Sgts. Arthur “Archie” Kaufman, Kenneth Bowen and Robert Gisevius, and former Officers Robert Faulcon and Anthony Villavaso.
Engelhardt initially sentenced Bowen and Gisevius each to 40 years in prison. Faulcon got 68 years and Villavaso 38 years on their convictions from a 27-count indictment charging them with civil rights, firearms, conspiracy and obstruction counts. Kaufman, who was implicated only in the cover-up not the shooting itself, received a six-year sentence.
The sentences were imposed as a scandal erupted in the U.S. Attorney’s Office in 2012, beginning with the revelation that senior prosecutor Sal Perricone had penned caustic, pseudonymous barbs about the Danziger case and other high-profile prosecutions beneath stories posted at nola.com.
Months later, it emerged that then-U.S. Attorney Jim Letten’s second-in-command, Jan Mann, also penned anonymous rants in the website’s comment stream — rants that stopped the moment she was tasked with ferreting out the extent of the Perricone scandal. Mann sought to hide her commenting from the court but was unmasked — like Perricone — via a civil suit filed by landfill owner Fred Heebe, who was at the time the target of a sweeping federal probe.
Amid the wreckage, Letten left his post as the longest-serving U.S. attorney in the U.S. Perricone and Mann also packed up “with their panoply of federal benefits intact,” as the appellate judges tartly put it.
In September 2013, after enlisting an outside federal prosecutor who discovered that yet another federal prosecutor, Karla Dobinski, had posted anonymously on nola.com from Washington, D.C., Engelhardt issued his blockbuster order rescinding the Danziger convictions.
Engelhardt found “grotesque prosecutorial misconduct” by the feds, so horrendous that he said he didn’t even need to find that the feds’ actions had tainted the jury.
“Retrying 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,” he wrote.
The majority opinion found nearly all of Engelhardt’s reasoning sound. Circuit Judges Edith Jones and Edith Brown Clement said the government’s conduct was so egregious that a new trial — while a remarkable remedy — is warranted under the “extraordinary” circumstances of the case.
Like Engelhardt, the two judges focused largely on the online commenting by the three prosecutors and their self-serving efforts to hide it or minimize its impact. But they also objected to other government tactics: relatively lenient deals given to cooperating witnesses; threats of prosecution to potential defense witnesses; alleged leaks to the media.
And the judges wonder aloud whether the extent of the prosecutorial misconduct has even been plumbed. “From the state of this record ... neither we nor the defendants can know who all the commenters were, how many online comments were attributable to biased and vindictive federal government employees acting outside the bounds of their ethical duties, and thus the full impact of the misconduct,” they wrote.
Brissette’s mother, Sherell Johnson, said Tuesday that, unlike Engelhardt, she doesn’t see a new trial as a “small price to pay.”
While she said she had expected the appellate ruling, she isn’t looking forward to sitting through a second trial, a prospect she called unfair.
“I think it’s awful,” Johnson said. “Why make us sit through that again when you done murdered my son? This is ripping my heart apart.”
She added: “Ashes in an urn is what I’ve got, and they’ve got a new trial.”
Edwin Shorty, a New Orleans attorney who represents the Bartholomew family, one of the victim families, said he also had expected the 5th Circuit to uphold Engelhardt’s ruling based on the questions asked by the appellate judges during oral arguments. He said it’s “terribly difficult” for his clients to continue reliving the shooting.
“The judges seemed to focus on the behavior of the prosecutors but not the behavior of the officers who shot unarmed individuals on the bridge,” Shorty said. “There’s a famous saying that justice delayed is justice denied.”
The government, which had claimed the Danziger verdicts as a landmark civil rights victory, last year appealed Engelhardt’s order calling for a new trial. It argued that Engelhardt tossed out the verdicts despite 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.
Engelhardt should have stopped short of a new trial for the five officers, instead leveling sanctions or formal complaints against prosecutors, the government argued. Prosecutors also asked that Engelhardt be taken off the case.
In their ruling, however, Jones and Clement found that Engelhardt had handled himself with aplomb, “conscientiously responding to these novel events as they unfolded.”
Circuit Judge Edward Prado did not weigh in on whether Engelhardt should be removed from the case but “respectfully” dissented from his colleagues about whether a new trial was warranted.
Prado wrote that the only “newly discovered evidence” that would warrant a new trial was the unmasking of Perricone, Mann and Dobinski. But “the defendants advance no credible argument that the newly discovered evidence in this case — the identity of the commenters on NOLA.com — would likely produce an acquittal,” he wrote.
Moreover, he noted that Engelhardt made no effort to later determine whether any juror might have been influenced by the prosecutors’ commentary. In fact, the judge “expressly declined to hold an evidentiary hearing to determine the extent of prejudice,” Prado wrote.
The majority ruling stands in stark contrast to a different 5th Circuit panel’s decision recently in another infamous NOPD-related case in which defense lawyers sought to make hay from the commenting scandal.
That panel denied a new trial for former NOPD Officer Gregory McRae over his conviction for burning a car containing the body of Henry Glover, who had been fatally shot by another cop. The incineration occurred two days before the Danziger melee.
The judges in the McRae case found Perricone’s commentary “unprofessional, inappropriate and deserving of our condemnation,” but they said McRae couldn’t point to any evidence that it prejudiced the jury. Nor were Perricone’s rants egregious enough for the court to presume jury prejudice, the panel found.
“Without connecting the online comments to the jury, the new evidence does not call into question the integrity of its verdict,” the panel in McRae’s case found — a finding echoed in Prado’s dissent in the Danziger case Tuesday.
The government had sought to connect the McRae ruling to Danziger in a recent brief. But attorneys for the Danziger cops fired back a response noting differences in the McRae decision — most notably that the district judge in the McRae case, U.S. District Judge Lance Africk, already had denied McRae a new trial.
They also argued that, in the Glover case, none of the online commentary came from prosecutors who were directly involved in the case. In Danziger, on the other hand, Dobinski headed up a “taint” team charged with screening evidence for “immunized” material, ostensibly a safeguard for the defendants.
Staff writer Jim Mustian contributed to this report. Follow John Simerman on Twitter, @johnsimerman.