Unprecedented Department of Justice misconduct requires a new trial for five former New Orleans policemen convicted in the deadly police shootings of six Hurricane Katrina victims fleeing the city, a federal judge ruled Sept. 17.
The actions of DOJ prosecutors in posting anonymous commentaries on the case were so "highly unusual, extensive and truly bizarre" as to require a new trial, according to U.S. District Judge Kurt Engelhardt, left, who presides in New Orleans. He wrote that he had been unable to find any other case like it in the country. The only appropriate remedy for such wrongdoing, he wrote over the objections of the DOJ, was to grant defendants a new trial.
The judge's aggressive investigation of wrongdoing provides a rare bright spot in the astonishing array of law enforcement misconduct in the city. In this case, at least three federal prosecutors (including a new one identified this week) anonymously wrote reader comments on the NOLO.com website. The actions thereby undermined the defendants' right to an unbiased jury, the judge ruled.
The DOJ had charged the defendant police officers with federal civil rights violations and cover-up after fatally shooting two hurricane victims and wounding four others fleeing across the Danzinger Bridge from chaotic conditions in the flooded city.
The judge's ruling prompted the city's major radio station, CBS affiliate WWL AM/FM, to invite my return Sept. 18 to discuss the ruling. Morning host Tommy Tucker, right, hosted the interview, available nationally via the station's website.
Tucker noted that a WWL poll, albeit unscientific, was showing about 90 percent of those surveyed do not trust the Justice Department and Attorney Gen. Eric Holder. He asked if this was fair criticism.
I replied that responsibility for the misconduct permeates the highest ranks of the department, as evidenced by the DOJ's aggressive defense of its convictions in this case using boiler plate excuses that the judge smacked down. However, President Obama would be reluctant to seek Holder's resignation, I said, for fear he could not win confirmation of a successor he trusted so much as Holder.
Further, I commented that the public has a strong interest in ensuring that rigorous investigation of blatant wrongdoing helps ensure that the DOJ operates in a fair, open and truthful manner in other cases.
Tucker and others at the station have been in the forefront of the region's news media seeking answers for serious misconduct in the city's police, state, and federal law enforcement personnel in multiple cases.
In this week's 129-page ruling, the judge said the prosecutor's actions were so unfair as to require a new trial. Prosecutors Sal Periccone and Jan Mann have previously been identified and ousted from their jobs for posting comments on NOLO.com. The judge identified a third prosecutor for similar conduct, Washington-based lawyer Karla Dobinski. She posted under the name "Dipsos."
The judge's hard-hitting decision swept away government arguments that it could handle misconduct via internal review procedures and that the misconduct was largely confined to the "prosecution team." The judge said that the DOJ is the prosecution team from a defendant's perspective.
The ruling may be read here. Editor's Note: An earlier version of this column contained a broken link that has been fixed.
President George W. Bush nominated Engelhardt, a Republican. The Senate confirmed him in December 2001.
The defendants were convicted of federal civil rights violations for the two slayings, or for covering up the crime. The shortest sentence was six years for cover-up. The longest was 65 years.
The federal civil rights charges were because of a botched state court case that included murder charges. Because of the nation's separate but overlapping federal-state law enforcement system the government can bring different federal charges for the same conduct without triggering a defendant's protection against double jeopardy.
Federal misconduct leading to the judge's ruling this week forced the resignation last December of longtime U.S. Attorney Jim Letten even though he has not been linked personally with the anonymous postings by two of his top aides, who also have resigned.
"The public must have absolute trust and confidence in this process," the judge 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."
The judge called also for a probe into leaks by prosecutors to the news media, especially to the Times-Picayune and the Associated Press.
Interim U.S. Attorney Dana Boente, appointed after Letten's resignation, said: "We are disappointed in the court's ruling. We are reviewing the decision and considering our options." The DOJ has not said whether it would appeal the judge's ruling to the Fifth Circuit U.S. Court of Appeals.
"We are extremely disappointed in Judge Engelhardt's decision granting a new trial in the Danziger criminal civil rights case," said Madison, whose other brother, Lance, was falsely implicated. "It has been over eight years since our brother Ronald was shot and killed on the Danziger bridge and our brother Lance was falsely arrested and framed on eight counts of attempted murder. This decision re-opens this terrible wound not only for our family but our entire community."
"From the beginning of this ordeal," Madison continued, "our family has sought justice, not just for ourselves, but for all the victims and families. We urge the Department of Justice to appeal Judge Engelhardt's decision.'
Fred Heebe, a wealthy landfill operator and a target of a separate federal investigation, hired a private detective who exposed the secret comments by prosecutors. The online comments by the prosecutors created a "carnival type atmosphere" around the Danziger case and thereby require a new trial, the judge concluded.
Defendants Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso were convicted of firing weapons on the Danziger Bridge on Sept. 4, 2005. The shots killed two men and wounded four others. In April 2012, the defendants received terms ranging from 38 to 65 years in prison. Archie Kaufman was convicted of helping mastermind the cover-up. He received a six-year term.
Related News Coverage
WWL AM/FM (New Orleans), Fed judge orders new trial for Danziger defendants, Jay Vise and Associated Press, Sept. 17, 2013. A federal judge on Tuesday ordered a new trial for five former New Orleans police officers convicted of civil rights violations stemming from deadly shootings on a bridge in the aftermath of Hurricane Katrina.
WWL-TV, Judge Orders New Trial for 5 Defendants in Danzinger Trial, Staff report, Sept. 17, 2013. Danziger judge wants independent Investigation into online commenting scandal. A federal judge on Tuesday granted a new trial for five NOPD officers convicted in the Danziger Bridge case, citing "grotesque prosecutorial misconduct" on the part of the government, for their handling of the case which sent the officers to prison.
New York Times, Judge Throws Out Officers’ Convictions in Killings After Hurricane Katrina, Campbell Robertson, Sept. 17, 2013. The decision represented the collapse, for now, of a case that was seen as symbolizing both the profound breakdown of law and order after the hurricane and a deep rot within the city’s police department that dated back well before the storm. The vacating of the 2011 convictions, which were hailed by the city’s officials and by Attorney General Eric H. Holder Jr., was another setback for a wide-ranging federal campaign to reform the New Orleans Police Department and hold some of its officers accountable for past abuse. A consent decree mandating full-scale departmental changes, announced with fanfare by the city and the Justice Department last summer, is now being appealed by city officials, who said they were unaware of the costs of a separate decree being negotiated that concerns the troubled city jail.
New Orleans Times Picayune/NOLA.com, Justice Department attorney Karla Dobinski posted on NOLA.com about Danziger Bridge trial, judge reveals, Manuel Torres, Sept. 17, 2013. A veteran U.S. Justice Department attorney posted anonymous comments online during the Danziger Bridge trial in 2011, a federal judge revealed Tuesday as he ordered a new trial for the former police officers convicted in the case.
Justice Integrity Project, 3 Ways To Reform Our How To Reform Our Out-of-Control Legal System, Andrew Kreig, Aug. 7, 2013. Shocking abuses are occurring throughout the country's legal system, according to authoritative recent news reports. On Aug. 6, I joined New Orleans radio station WWL AM/FM host Garland Robinette to discuss the scandals. My suggested three-step action guide is here.
Department of Justice, Attorney General Eric Holder Announces Interim Appointment of Dana J. Boente as U.S. Attorney for the Eastern District of Louisiana, Office of Public Affairs, Dec. 6, 2012. The Department of Justice announced today the interim appointment of Dana J. Boente as U.S. Attorney for the Eastern District of Louisiana. “Dana Boente is a veteran federal prosecutor with a record over the past 28 years of distinguished service to the Department of Justice,” said Attorney General Eric Holder, left.
WWL-AM/FM, (New Orleans), Letten resigns, Jay Vise, Dec. 6, 2012. Jim Letten today announced his resignation as U.S. Attorney for the Eastern District of Louisiana. Letten, right, stepped down as the investigation of misconduct by two of his two top prosecutors continues.
WWL-TV, Judge leaves door open to new trial for Danziger officers, Mike Perlstein, Nov. 26, 2012. The federal judge who presided over the Danziger Bridge trial during which five officers were convicted of civil rights violations, has left the door open for a new trial based on blog comments – and possible prosecutorial misconduct – by high ranking members of the U.S. Attorney’s Office.
New Orleans Times-Picayune, First Assistant U.S. Attorney Jan Mann demoted after admitting online commentary, Gordon Russell, Nov. 8, 2012. Jim Letten demotes second-in-command, tries to quietly weather scandal.
NOLA.com / New Orleans Times-Picayune, 4 former officers convicted in Danziger case ask for new trial, saying prosecutors hid evidence, Brendan McCarthy, May 14, 2012. Attorneys for four former New Orleans police officers convicted recently in the Danziger Bridge shootings and cover-up are asking for a new trial, alleging that federal prosecutors hid evidence and relied on false testimony in the high-stakes case. The motion makes two main claims: that federal prosecutors only recently turned over key videotaped evidence, and that the government knowingly used witness testimony that the video proved was false. The court filing states that a video shot by a CBS News affiliate in Miami on the Danziger Bridge walkway shows no bullet casings.
The video was shot on the day of the shooting, some time before James Brissette's body was removed from the scene. Former officer Jeffrey Lehrmann testified at trial that Bowen kicked casings off the walkway weeks after the shooting as part of an effort to cover up what happened on the bridge. But Bowen couldn't have kicked the casings if they weren't there, according to Bowen's attorney, Robin Schulberg, a federal public defender.
The video "definitively contradicts" Lehrmann's testimony, Schulberg noted in her motion. Lehrmann, a former NOPD officer and federal immigration agent who pleaded guilty to misprision of a felony, said he witnessed Bowen kick casings into the grass below the bridge in October 2005, a day before crime lab technicians were to process the scene. Lehrmann, who cooperated with prosecutors, testified that he asked Bowen why he was kicking the casings, and Bowen said the lab techs would find them anyway. Federal prosecutors thus presented testimony they knew to be false, the motion states. That claim will be ruled on by U.S. District Judge Kurt Engelhardt, who has expressed similar sentiments, complaining that the government's case relied too heavily on "using liars lying to convict liars." Schulberg's motion further alleged that the government long possessed the video and was well aware of its contents. The video was not turned over during the initial discovery process, which violates series of U.S. Supreme Court decisions -- starting with Brady v. Maryland, in 1963 -- that require prosecutors to turn over evidence that may be favorable to a defendant before trial.
NOLA.com / New Orleans Times-Picayune, 'Mencken1951' unmasked: It is federal prosecutor Sal Perricone, Staff report, March 15, 2012. U.S. Attorney Jim Letten confirmed this afternoon that Sal Perricone, one of his top prosecutors, has been using the handle "Henry L. Mencken1951" to bash landfill owner Fred Heebe and a raft of other local and national figures, including federal judges, in the comments section on NOLA.com.
Catching Our Attention on other Justice, Media & Integrity Issues
New York Daily News, Federal prosecutor under fire for Obama, Trayvon rants, Doyle Murphy, Aug. 15, 2013. Assistant U.S. Attorney John Craft's Facebook posts blasts 'stupid people' for electing 'Dalibama.' His boss, U.S. Attorney for the Eastern District of Texas John Malcolm Bales, says he'll 'look into' comments.
OpEd News, Licensed to Kill: The Growing Phenomenon of Police Shooting Unarmed Citizens, John Whitehead, Sept. 16, 2013. I've been contacted by many older cops equally alarmed by the attitudes and behaviors of younger police today, the foot soldiers in the emerging police state. Yet as I point out in my new book, A Government of Wolves: The Emerging American Police State, this is what happens when you go from a representative democracy in which all members are subject to the rule of law to a hierarchical one in which there is one set of laws for the rulers and another, far more stringent set, for the ruled. Hence, it is no longer unusual to hear about an incident in which police shoot unarmed individuals first and ask questions later.
Ron Winter Blog, 'Presidential Puppetry': What if the Conspiracy Theories are True? Ron Winter, right, Sept. 16, 2013. We've all heard the phrase, usually uttered with a sneer of disdain or condescension, "Conspiracy Theorist." It crops up wherever someone points out that something doesn't seem right, usually with our government. Too many things look suspicious; too many things don't add up. But unless there is solid evidence, the so-called "smoking gun," the 'someone' who has unearthed the disturbing information is promptly labeled as a nutcase, always looking for wrongdoing where none exists. But what if the theories are real? What if the person exposing them is a highly respected career investigative reporter? What if, as it turns out, there really is collusion behind the scenes, say between the two political parties that claim to be at odds with each other? What if there really are big money interests behind both parties, and our system of government has become a sham, using trillions of tax dollars to pad the bloated, overstuffed pockets of a handful of elitists while everyone else struggles?
National Press Club, Jindal calls DOJ lawsuit 'cynical, immoral and hypocritical' at NPC Newsmaker, Lorna Aldrich, Sept. 18, 2013. Bobby Jindal, Republican governor of Louisiana, called a recent Department of Justice (DOJ) lawsuit to block Louisiana’s school-voucher system "cynical, immoral and hypocritical" at a National Press Club Newsmaker Sept. 18. The lawsuit would block the program, which provides vouchers that parents can use to pay for schools of their choice in Louisiana parishes that operate under federal desegregation orders. The governor termed the suit cynical because it would use desegregation laws designed to protect minority children to trap those children in failing schools. Ninety percent of the children in the voucher program are minorities, mostly low income, said Jindal, shown at left with former Florida Gov. Jeb Bush at his right in a photo by Noel St. John.
Justice Integrity Project, New Book, Viral Video Focus on Police, Prosecution, Judicial Abuses, Andrew Kreig, August 2, 2013. A new book on paramilitary police tactics underscores ongoing assaults on American civil liberties. So does a video about a sexual attack in a Nevada courthouse by a court marshal, who arrested the victim while the judge failed to intervene.
Rise of the Warrior Cop is the title of a book published in July by Radley Balko a columnist for the Huffington Post. He amplified the book’s themes with two recent columns on “Police Militarization” and “America's Misbehaving Prosecutors.” A graphic example of the arrogance that some law enforcers possess even in court is a video that went viral this spring after CBS-affiliate KLAS-TV in Las Vegas exposed the treatment of a young mother who was groped and arrested.
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