One of the most appalling moments of the Hurricane Katrina tragedy in New Orleans occurred when four New Orleans cops opened fire on two groups of unarmed civilians trying to cross the Danziger Bridge, killing two people and wounding four others. The officers were all convicted on federal civil rights charges in a 2011 trial. However, the convictions were thrown out in 2013 in the wake of some of the most egregious prosecutorial misconduct ever uncovered in an American courtroom. Yesterday, a panel of the Fifth Circuit Court of Appeals agreed that the officers had to get a new trial.
For those who don’t remember, on September 4, 2005; four New Orleans police officers–Kenneth Bowen, Robert Gisevius, Anthony Villavaso, and Robert Faulcon–rolled up on the Danziger Bridge and turned assault weapons on the Bartholomew family while they were crossing the bridge. A family friend, James Brissette, was killed, while four members of the Bartholomew family were horribly wounded. Faulcon and Gisevius spotted Ronald and Lance Madison fleeing the carnage and tried to chase them down. Faulcon fired seven shots at Ronald Madison, who was developmentally disabled, killing him.
Bowen, Gisevius, Villavaso, and Faulcon were indicted for violating the six victims’ civil rights and covering up their butchery by falsely claiming they had been fired upon and were acting in self-defense. Homicide detective Archie Kaufman, who had initially investigated the shooting, was charged with helping in the cover-up. All five were found guilty. Kaufman was sentenced to six years in prison, while the four officers who actually did the shooting were sentenced to terms ranging from 38 years to 65 years–at their ages, enough to ensure they would be very old men by the time they were released, assuming they lived that long.
However, in 2012, the presiding judge in the case, Kurt Engelhardt, threw out the convictions and ordered a new trial. Read the full order here. This came after a yearlong investigation revealed that Sal Perricone, the top trial attorney in the Eastern District of Louisiana, as well as Justice Department official Karla Dobinski, had used anonymous online accounts to make disparaging comments about the officers. An investigation revealed that Perricone, Dobinski, and another federal prosecutor, Jan Mann, had slammed the federal defendants on NOLA.com, the Website of New Orleans’ then-major newspaper, The Times-Picayune.
Perricone and Mann had been attacking the NOPD for the better part of four years and had urged the defendants to join NOPD lieutenant Michael Lohman in pleading guilty. Dobinski had also joined in the vitriol, and urged others to join in as well. Later, he and Dobinski had used their accounts to provide running commentary of the trial. In other words–high-tech witness intimidation and jury tampering resulting from what Engelhardt described as “a 21st-century carnival atmosphere.”
According to Engelhardt’s order, Perricone and Mann were trying to “poison the well” by influencing the thinking of potential jurors. Additionally, since the jury wasn’t sequestered, jurors could have been swayed by Perricone and Dobinski’s commentary. Engelhardt was particularly angered that Dobinski was engaging in such “bizarre and appalling” behavior, since she was supposed to help ensure Bowen’s testimony before a state grand jury wasn’t used improperly. The only remedy for such “grotesque prosecutorial misconduct,” he said, was a new trial.
The Justice Department asked the appeals court to reverse Engelhardt’s ruling, saying that Engelhardt overreached in ordering a new trial. However, a three-judge panel of the appeals court largely sided with Engelhardt. Writing for the 2-1 majority, circuit judge Edith Jones concluded that the commenters contributed to a “mob mentality” against the defendants–the very thing that they are sworn to prevent. Jones also pointed out that it was very likely the comments influenced the approach defendants, cooperating witnesses and defense witnesses took to the trial. Jones also pointed out that seven of the 12 jurors visited NOLA.com–and that Engelhardt had found that jurors who visited the site were less inclined to trust the NOPD.
What makes this all the more outrageous is that these five officers were manifestly guilty. However, these prosecutors engaged in behavior that simply cannot be tolerated in a criminal trial. No matter how overwhelming the evidence was against these officers, there was no excuse to shred the Constitution in order to get a conviction. As painful as it may be for the victims’ families, the appeals court had no other choice but to grant a new trial.
