In a devastating decision for New Orleans with far-reaching implications, a federal judge threw out the 2011 convictions of five former police officers who had been found guilty of killing two citizens during the chaos of Hurricane Katrina and then covering it up. The judge cited “grotesque prosecutorial misconduct” by federal prosecutors.
Judge Kurt D. Engelhardt wrote an angry 129-page decision that stunned legal scholars by stating that federal prosecutors created a “prejudicial, poisonous atmosphere” in posting anonymous online comments before and during the trial at nola.com, the website of The Times-Picayune. The judge ordered a new trial for all five officers, meaning the city will have to repeat the wrenching proceeding that exposed deep-rooted corruption in the police department stemming back to the days before Hurricane Katrina changed everything.
Engelhardt described the “unprecedented events and acts” that he said “has taken the court on a legal odyssey unlike any other.”
After former police Sgts. Kenneth Bowen and Robert Gisevius, and former officers Anthony Villavaso and Robert Faulcon, had been convicted in 2011 on charges related to the shootings and cover-up, it was Engelhardt who last year sentenced them to prison terms ranging from 38 to 65 years.
A fifth officer, retired Sgt. Arthur “Archie” Kaufman, who was assigned by the police department to investigate the case, was not charged in the shootings but was convicted of orchestrating the cover-up and sentenced to six years in prison.
Engelhardt acknowledged in his decision that the granting of a new trial was a “bitter pill to swallow.”
“The public must have absolute 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.”
Bennett Gershman, professor at Pace Law School in White Plains, N.Y. and an expert on legal misconduct, told Al-Jazeera America that it was unprecedented for a case to be thrown out because of online comments by prosecutors.
“This is a stunning case that has no equal,” Gershman said. “The Justice Department’s reputation has been seriously tarnished by what the judge said. There’s no question about that.”
During the trial prosecutors said that Faulcon fatally shot 40-year-old Ronald Madison, a mentally disabled man, in the back at Danziger Bridge after Hurricane Katrina. Madison and his brother were running from gunfire on the bridge’s east side where 17-year-old James Brissette had been shot and killed by police.
In December 2012, former U.S. Attorney Jim Letten resigned after two of his top deputies—Sal Perricone and Jan Mann—acknowledged they had posted anonymous comments on nola.com about cases their office had handled, including the bridge investigation.
According to the judge, some of the jurors had written on questionnaires that they had been reading news about the case on the same website where the comments were posted.
In the decision, Engelhardt quoted from some of the messages, including some by Perricone.
“Perricone, under his several monikers, habitually posted comments portraying the NOPD (New Orleans Police Department), its superintendent Warren Riley, and its officers and personnel in the most negative and vitriolic way,” Engelhardt said.
The judge said other messages referred to Police Superintendent Riley, who is black, as “racist,” “inept” and “delusional.”
“NONE of these guys should had have [sic] ever been given a badge,” one of the lawyers wrote under an assumed username.
“We should research how they got on the police department, who trained them, who supervised them and why were they ever been [sic] promoted.”
Lawyers for the five police officers argued that the prosecutors’ online comments and leaks to news organizations had been part of a “secret public relations campaign” that deprived them of a fair trial.
After Letten resigned, the Justice Department announced that John A. Horn, a federal prosecutor from Georgia, would be investigating the office for misconduct relating to the commenting scandal. Horn found that Karla Dobinski, who since 1985 has been a trial lawyer in the Civil Rights Division of the Justice Department, had commented several times on nola.com under the name “Dipsos.”
Though Dobinski was in Washington during the trial and her comments weren’t as nasty as those made by Perricone or Mann, during the last week of the trial she reportedly urged nola.com commenters who were following the trial and were strongly in favor of the prosecution.
Engelhardt said the discovery of Dobinski’s commentary was “the straw that broke the camel’s back.”
“It’s almost unbelievable,” Stephen Gillers, a law professor at New York University, told the Times while pointing out that the risks of social media are a frequent topic discussed by lawyers. “This is the most dramatic danger sign that we’ve had come along.”
The Justice Department issued a statement expressing disappointment with the ruling and saying that it was reviewing the decision and considering the options.
“This decision reopens this terrible wound not only for our family but our entire community,” Dr. Romell Madison, the brother of Ronald Madison, who was killed at the bridge, said in a statement urging the Justice Department to appeal. “Our fight for justice continues.”