WASHINGTON — The momentous decision by U.S. District Court Judge Kurt Engelhardt to throw out the convictions of five New Orleans Police Department officers in the post-Katrina shootings on the Danziger Bridge and an ensuing cover-up took center stage during an hour of questioning Wednesday in front of the U.S. Senate’s Judiciary Committee.
Engelhardt, 57, appeared before the committee as one of President Donald Trump’s nominees for a seat on the New Orleans-based 5th U.S. Circuit Court of Appeals. Republicans on the committee expressed support for him.
Although the federal district judge told senators he’d handled “thousands” of cases over about 17 years on the bench, it was the Danziger case — which captivated the city, focused international attention on NOPD abuses in Hurricane Katrina’s chaotic aftermath and ultimately upended the New Orleans U.S. Attorney’s Office — that drew the attention of senators.
Meanwhile, another New Orleans nominee for a federal judgeship, attorney Barry Ashe, sailed through his confirmation hearing with nary a question from the panel. Ashe, an experienced litigator and partner at the Stone Pigman firm, was nominated for a district court judgeship, a position that is far less politically charged.
While Engelhardt appeared alone before the committee, Ashe found himself seated next to Howard Nielson Jr., a Utah district court nominee who’s stirred far more controversy.
As an attorney for former President George W. Bush, Nielson played a part in a series of legal memos justifying the use of torture. He also later helped defend California’s short-lived ban on same-sex marriage.
Both Ashe and Engelhardt were praised by Louisiana’s two senators, John Kennedy and Bill Cassidy, ahead of Wednesday’s hearing.
Cassidy called Ashe “an excellent choice” and said Engelhardt “is the kind of fair-minded, experienced person we need serving in the judiciary.”
“In my judgment (...) it’s impossible to quibble with the qualifications of Kurt Engelhardt and Barry Ashe,” said Kennedy, himself an attorney and a member of the Judiciary Committee. “If you ask any lawyer in Louisiana about them, most of them will say (...) they’re both eminently qualified.”
The committee did not vote on the candidates they heard from on Wednesday. A vote on whether to send the nominees to the full Senate is likely within the next month.
In the Danziger Bridge case, a federal jury convicted four NOPD officers of shooting unarmed civilians on the bridge, which spans the city’s Industrial Canal. Jurors also found that those officers, along with a homicide detective who investigated the case for the NOPD, then staged an elaborate cover-up.
Engelhardt initially sentenced four of the five former officers to decades in prison but later tossed out the verdicts amid revelations that two top deputies for then-New Orleans U.S. Attorney Jim Letten had posted prolific comments on Nola.com news stories about federal cases using pseudonyms. Another federal prosecutor based in Washington, D.C., also commented anonymously on some stories about the case.
None of the prosecutors unmasked as writing comments participated in the prosecution of the case.
Engelhardt called the decision “the most difficult decision” of his legal career and said no other case forced him to lose as much sleep. The judge said a photograph of Ronald Madison, a 40-year-old mentally disabled man killed by officers in the shooting, is one of two pictures he keeps in his desk drawer.
However, he defended his ruling, accusing federal prosecutors — whom he did not name — of pursuing “a strategy of creating an unfair, a prejudicial atmosphere in the community, long before indictments came down, long before a jury could possibly be picked.” During the committee hearing, he mentioned that the anonymous comments were written over years, including on stories before officers were charged.
He also mentioned what he called a grand jury leak. In his ruling overturning the Danziger case, Engelhardt expressed disappointment that prosecutors had not sufficiently sought to identify the source of news stories about a pending guilty plea in the case.
“These were lengthy sentences,” Engelhardt said of the prison terms he’d handed to the NOPD officers, “and I did not believe that we should have a verdict stand that had any type of cloud on it.”
Former Assistant U.S. Attorney Sal Perricone, who served as the office’s senior litigation counsel, acknowledged posting comments under the name “Henry L. Mencken1951.” The office’s first assistant, Jan Mann, was also outed as a prolific pseudonymous commenter, a revelation that led to Letten’s resignation.
Engelhardt, in his 2013 ruling ordering new trials for the officers, called it “grotesque prosecutorial misconduct.” But it was unclear whether the comments from Perricone and Mann were ever read by jurors or had an impact on the trial.
All five officers eventually pleaded guilty in deals with federal prosecutors and received sentences ranging from probation to 12 years, far shorter than they originally received.
Sen. Christopher Coons, D-Delaware, pressed Engelhardt about why he never tried to analyze whether the commenting scandal actually tainted the jury.
“To go through an analysis — for instance, interviewing jurors who sat on the case, seven of whom we know viewed the website involved — would have been like asking someone what they had for breakfast three and a half years ago,” Engelhardt said. “ 'Did you read this article? Did you read this comment?' ”
But if pervasive prosecutorial misconduct was so concerning, Democratic Sen. Amy Klobuchar of Minnesota asked, why did Engelhardt toss out a civil suit from Earl Truvia against Orleans Parish prosecutors? Truvia, a New Orleans man, spent decades in prison before another federal judge found that state prosecutors had withheld key evidence during his trial.
Federal courts have repeatedly found that the Orleans Parish District Attorney’s Office under former DA Harry Connick Sr. failed to turn over evidence and committed other acts of misconduct.
But Engelhardt said the Danziger and Truvia cases were “apples and oranges” and pointed to a U.S. Supreme Court ruling in another suit filed by a wrongly convicted man against Connick that held the District Attorney’s Office wasn’t liable for violations.
Democratic senators also zeroed in on a handful of rulings Engelhardt has made in sexual harassment cases, suggesting that he let companies off the hook for egregious abuses by tossing out lawsuits.
In rulings quoted by Sens. Kamala Harris of California and Mazie Hirono of Hawaii, Engelhardt wrote that demeaning remarks and physical groping suffered by a Rite-Aid security guard and a Catholic Charities worker were “neither severe nor physically threatening.” In the case of the Rite-Aid security guard, he went on to note the victim “liked her job and performed well in it” while throwing out her case.
Engelhardt declined to go into specifics of the cases, noting that each occurred a number of years ago, but said he tried to fairly apply federal law and past rulings from higher courts in weighing claims against employers.
“Things that are not acceptable in the workplace,” Engelhardt said, “don't always survive the tests (...) I'm required to apply.”