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I'm shocked and angry that the federal conviction of the police officers who shot at least five innocent people on the Danziger Bridge during the aftermath of Hurricane Katrina have been overturned, based on extensive federal (DoJ) prosecutor misconduct. You have to read the judge's 129 page decision to get the full, horrifying scope of what four federal prosecutors -- two from Louisiana, and two from Main Justice -- did to taint that trial.

Thus, a new trial, and the suffering of the victims' families will continue anew.

Danziger Bridge Convictions Overturned
 A federal judge on Tuesday overturned the convictions of five New Orleans police officers tied to the shooting of unarmed civilians during the aftermath of Hurricane Katrina, finding that prosecutors in the case had engaged in “grotesque” misconduct.

In a blistering and meticulously detailed 129-page ruling, U.S. District Judge Kurt Engelhardt found that federal prosecutors in New Orleans had anonymously posted damning online critiques of the accused officers and the New Orleans Police Department before and during the 2011 trial, a breach of professional ethics that had the effect of depriving the officers of their rights to a fair trial. The judge granted the officers’ request for a new trial.

“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 the Court, and the criminal justice system as a whole,” Judge Engelhardt wrote.

The judge's ruling here (WARNING: PDF).

p.s. I have to head to bed, and apologize for not being able to interact in the comments. Just had not seen this, and wanted to post it.

Originally posted to Kombema on Tue Sep 17, 2013 at 07:44 PM PDT.

Also republished by Police Accountability Group.

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Comment Preferences

  •  Some of NOLA.com's take on this decision... (17+ / 0-)

    Judge grants new trial for ex-New Orleans police officers convicted in notorious Danziger Bridge slayings after Hurricane Katrina

    All were tried and convicted in 2011 for their roles. They sought a new trial last year alleging prosecutorial misconduct, citing among other examples the revelations that prosecutors in Letten's office had authored disparaging comments on NOLA.com about defendants in several criminal cases, including the Danziger case.
    ...
    The revelations and other instances of misconduct prompted Engelhardt to call for a criminal probe of former prosecutors Sal Perricone and Jan Mann, neither of whom were directly involved in prosecuting the Danziger Bridge case. Tuesday's order alluded to additional misconduct uncovered by that probe.
    Note: Letten is Jim Letten of James O'Keefe fame.

    The NOLA.com posts, referred to in the article above are related to this:

    It seemed like a far-fetched allegation when it surfaced in March 2012: A prolific and caustic commenter on NOLA.com, "Henry L. Mencken1951," was a prosecutor in then-U.S. Attorney Jim Letten's office who used online comments to disparage federal targets. Soon, Sal Perricone was unmasked as the author, unleashing a chain of events that forced Letten out of office, ignited an internal investigation and led to the sudden end this year of the sprawling River Birch probe.

    Yet few court observers had expected the legal bombshell that came Tuesday.

    Citing Perricone's and other instances of prosecutorial misconduct, U.S. District Judge Kurt Engelhard order a new trial for five former New Orleans police officers convicted in the Danziger Bridge shooting and cover-up after Hurricane Katrina.

    What happened on the Danziger was horrific.  This is the "Shooting Incident" section from Wiki:
    On September 4, 2005, New Orleans police received a call from an officer at Danziger Bridge reporting gunfire. Several NOPD officers—including Sgt. Kenneth Bowen, Sgt. Robert Gisevius, Officer Anthony Villavaso, and Officer Robert Faulcon—arrived at the scene in a Budget rental truck. They proceeded to open fire with assault rifles and a shotgun on an unarmed family, the Bartholomews, who had been walking to a grocery store and were then sheltering behind a concrete barrier.[4] 17-year-old James Brissette—a family friend—was killed, and four other people were wounded.[5] Two brothers, Ronald and Lance Madison, fled the scene, but were pursued down the bridge by Gisevius and Faulcon in an unmarked state police vehicle. Faulcon fired his shotgun from the back of the car at Ronald, a developmentally disabled man who would later die from his injuries.[4] Bowen was later convicted of stomping him on the back before he died,[5] though this conviction was overturned for lack of physical evidence.[4] Lance Madison was then taken into custody and accused of the attempted murder of police officers.[6]

    No weapons were recovered at the scene, and both police and civilian witnesses testified that the victims had been unarmed.[5] Later investigation showed that some shots had been fired in the area by trapped residents attempting to attract the attention of rescuers.[7]

    Looking through the bent backed tulips, To see how the other half lives, Looking through a glass onion - John Lennon and Paul McCartney

    by Hey338Too on Tue Sep 17, 2013 at 08:21:21 PM PDT

  •  Get this: (15+ / 0-)

    The 'misconduct' amounted, as far as I can discern, to anonymous online posts in the comments threads of NOLA newspaper websites.

    And this demands a retrial.

    Unethical conduct, yes. But to say THIS prejudiced the jury in any way is just ludicrous.

    Also the story of how the defense discovered these postings and tied them to the prosecutors stinks to high heaven.

    At least the retrial is very likely to lead to reconviction.

    "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

    by raptavio on Tue Sep 17, 2013 at 09:09:11 PM PDT

    •  You're probably right on the reconviction... (8+ / 0-)

      ... but you have no idea how big a deal the Posting-Gate scandal was down here.  It was front page news for days, on talk radio (24x7) down here for even longer.  People were talking about IP addresses and VPN's as if they knew what an IP address is and what a VPN does, and claiming they could tie everything back to the DA's office and people's homes - it was amazing.  And it was a BFD down here.

      It is true that the guys doing the posting were not related to the Danziger case.  So the real losers in all of this are the victim's families who will have to go through the entire ordeal again.

      Looking through the bent backed tulips, To see how the other half lives, Looking through a glass onion - John Lennon and Paul McCartney

      by Hey338Too on Tue Sep 17, 2013 at 09:38:42 PM PDT

      [ Parent ]

      •  If it was a BFD down there (2+ / 0-)
        Recommended by:
        Hey338Too, second gen

        then either the media got snowed by the defense or the people got snowed by the media.

        It was a big deal ethically, but not to the case. Far as I can tell there was no determination that any juror ever read the comments prior to conviction.

        In my arrogant opinion, of course.

        And I agree as to who the victims are.

        "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

        by raptavio on Wed Sep 18, 2013 at 05:50:55 AM PDT

        [ Parent ]

    •  My initial thoughts, too initially - and the judge (1+ / 0-)
      Recommended by:
      raptavio

      is a Bush appointee, so I was thinking it was some ideologically-biased ruling. But after reading the decision, it makes it clear that the misconduct was real and pretty damn bad. It went well beyond the anonymous blog postings, including sharing of prejudicial police testimony documents that the main Justice attorney in charge of "taint" oversight shared, un-redacted, with the prosecutors.

      So, while my gut reaction was the same as yours, I think if you look at the evidence, the Justice officials really were guilty of gross misconduct -- possibly at a level of criminal culpability in some instances. Which fucking sucks for the families of the victims, since they now have to watch a retrial and relive the horror that occurred on that bridge.

      "Government by organized money is just as dangerous as Government by organized mob." -- Franklin D. Roosevelt

      by Kombema on Wed Sep 18, 2013 at 07:11:33 AM PDT

      [ Parent ]

      •  The misconduct is real, (1+ / 0-)
        Recommended by:
        Kombema

        no doubt.

        I'm yet to be convinced the misconduct prejudiced the case to the jury, however.

        "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

        by raptavio on Wed Sep 18, 2013 at 07:32:13 AM PDT

        [ Parent ]

        •  We might never know for sure (1+ / 0-)
          Recommended by:
          Kombema

          whether any individual juror was prejudiced by the egregious prosecutorial misconduct, but there is also a realization that some errors, coupled with prosecutorial misconduct, might warrant a new trial [or the granting of habeas relief] even if the error did not substantially influence the jury's verdict. See, Brecht v. Abrahamson, 507 U.S. 619, 638, n. 9 (1993), referenced by the trial court in this case.

          •  I suppose that's so. (2+ / 0-)
            Recommended by:
            Kombema, P Carey

            Damn. Pisses me off.

            I hope to heck they reconvict. Truly.

            "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

            by raptavio on Wed Sep 18, 2013 at 03:06:20 PM PDT

            [ Parent ]

            •  Particularly hope they don't allow a plea deal w/ (1+ / 0-)
              Recommended by:
              P Carey

              reduction of charges. That would compound the injustice immensely. They better just dig in for a new location (outside of LA), and make sure the second go-around sticks -- for the sake of justice from the victims' side.

              "Government by organized money is just as dangerous as Government by organized mob." -- Franklin D. Roosevelt

              by Kombema on Wed Sep 18, 2013 at 06:23:25 PM PDT

              [ Parent ]

  •  Like Alaska senator Ted Stevens' corruption trial. (10+ / 0-)

    http://news.bbc.co.uk/...

    You have to wonder if prosecutors don't do this on purpose in certain cases.

    I started to distrust prosecutors in 1979, after the trial of Dan White for assassinating George Moscone and Harvey Milk. As a conservative, Dan White had many friends in the law enforcement hierarchy. Like many people at the time, I became convinced that, although not deliberately "tainting" the proceedings, the prosecution deliberately put up a weak case, allowing White to be

    convicted of voluntary manslaughter, the lightest possible conviction for his actions.
    http://en.wikipedia.org/...

    Since then, my distrust has only deepened.

    The Dutch kids' chorus Kinderen voor Kinderen wishes all the world's children freedom from hunger, ignorance, and war. ☮ ♥ ☺

    by lotlizard on Tue Sep 17, 2013 at 11:17:10 PM PDT

    •  Your distrust is well-founded. Prosecutors are (7+ / 0-)

      the last public servants operating with absolute immunity. The law assumes that because their role is purely ministerial in transmitting information from the executive to the judicial branch, they have no direct involvement in matters and cannot be held accountable for their actions. There is a realization even on the Supreme Court that this is a problem, however, there has not been a case brought to them to address it. Congress has failed to set standards. Congress fails to do lots of things having to do with justice.
      Public officials are under a permissive regime. They can only do what the law permits them to do. If there are no standards to hold prosecutors to account and no-one assigned to enforce such standards, then the prosecutors are immune to review.
      I think there was recently a case in Texas where prosecutorial misconduct was addressed, but it hasn't got to a higher court.

    •  Malpractice Prosecutions (0+ / 0-)

      Prosecutors whose cases are thrown out or reduced drastically from their requested sentencing should be investigated by the jurisdiction higher than theirs (eg. state for county/municipal, Federal for state, Congress for Federal). Any evidence of misconduct, whether incompetence, unethical, or malicious, should start a trial of the prosecutor and their office members. If convicted, they should face much harsher penalties than those not entrusted by the public with their powers of life and death.

      I am not optimistic about this practice starting in Louisiana first.

      "When the going gets weird, the weird turn pro." - HST

      by DocGonzo on Wed Sep 18, 2013 at 10:26:11 AM PDT

      [ Parent ]

  •  That PDF refuses to load for me. (1+ / 0-)
    Recommended by:
    Kombema

    I dunno if the site is busy or what, but I just get the eternal loading circle of doom.

    •  Sorry -- the link is avail from the article text, (1+ / 0-)
      Recommended by:
      P Carey

      too. I may have miscopied it. It's worth reading. Amazing shit those morons did, beyond the blog posts, which were not really even the worst of it.

      "Government by organized money is just as dangerous as Government by organized mob." -- Franklin D. Roosevelt

      by Kombema on Wed Sep 18, 2013 at 06:25:01 PM PDT

      [ Parent ]

  •  Cops + Prosecutors = Systemic Misconduct (2+ / 0-)
    Recommended by:
    P Carey, Kombema

    The New Orleans, Louisiana law enforcement system is obviously systemically broken. It's notoriously so, but this latest proof is extreme. Let's tally up:

    The Federal government built levees administered by the state government that failed to 1> design for Cat5 hurricanes, 2> implement their Cat3 design requirements, 3> survive a Cat2 hurricane when it arrived.

    The state and city governments failed to 1> prepare for a flooded city (after dozens of floods over the centuries), 2> evacuate people without their own transport, 3> respond to the people trapped in the wake of the flood.

    The city's police murdered people they were supposed to be protecting and serving.

    The Federal and city prosecutors unnecessarily screwed up the prosecution despite getting guilty verdicts.

    Now that we officially know all that, what will we do? We'll just do it all over again, using the same broken system and same bad people.

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Wed Sep 18, 2013 at 10:22:31 AM PDT

    •  Saddest thing is that Main Justice DC attorneys (1+ / 0-)
      Recommended by:
      P Carey

      -- one of whom is a long-time prosecutor -- were also involved in that crap. I mean, WTF?...

      "Government by organized money is just as dangerous as Government by organized mob." -- Franklin D. Roosevelt

      by Kombema on Wed Sep 18, 2013 at 06:26:56 PM PDT

      [ Parent ]

  •  A couple of observations (1+ / 0-)
    Recommended by:
    Kombema

    I agree that the families of the victims will have to deal with another trial--and that is truly an awful outcome of the trial court's ruling.

    But retrials are sometimes (albeit, rarely) granted and in each of those instances some amount of suffering is caused. The retrial here is, in my opinion, completely justified in law and in fact.

    While one can argue that the evidence found post-trial was simply a bunch of hateful comments posted by AUSAs unrelated to the case and that no evidence exists that any sitting juror was exposed to the comments, the heart of the issues presented by the defendants and supported by the Horn Reports is more complicated and more nefarious.

    The trial court calls attention to a well-known and oft-quoted passage from Berger v. United States, 295 U.S. 78 (1935) that is an important principle to bear in mind when weighing the need for a new trial:

    The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense that servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use evey legitimte means to bring about a just one.
    Emphasis provided.

    With this as a starting point--or at least a touchstone--I want to point out a few facts that might lend color to the picture.

    1) Posts were made by several AUSAs in the EDLA, New Orleans office (the comments can be read in the Court's opinion) that were highly prejudicial in nature against the defendants.

    2) Many of these comments were made prior to and during the course of the trial--in which jury members were not sequestered.

    3) Not all the posts or posters can be discovered because the DOJ does not have electronic records of its computer use at critical times before the trial.

    4) Evidence strongly supports the conclusion that several of the AUSAs questioned by the Court, the FBI, and DOJ investigators lied under oath.

    5) In addition to the New Orleans-based AUSAs, it was discovered--through the persistence of the trial court--that one of the posters was the actual leader of the taint team within the DOJ Civil Rights Division. This, in and of itself, might warrant reversal of the convictions.

    6) The exposure to these comments was widespread. New Orleans, in many ways, is a small town when it comes to something like this case. While I won't argue whether a moving defendant must prove (either by preponderance or by clear and convicing evidence) that a particular juror was tainted, I will point out that the defendants were deprived of their right to voir dire on this exposure becasue the source of the comments was not discovered until after the convictions.

    7) Confidential information found its way into newspaper stories, and it is quite possible that this informatin came from USA's office in New Orleans--information from secret grant jury investigations.

    8) Prejudicial information concerning a potential plea agreement (evidence of which almost automatically prejudices a jury and is thus strictly prohibited from being presented during trial) was also leaked to the public. Again, while it is not certain at this point, this information may have come directly from the USA's office in New Orleans.

    The defendants in the case at bar may not be sympathetic (many defendants aren't), but we should honor the rule of law and allow that ALL defendants deserve fair trials, free from the taint of prosecutorial misconduct.

    Prosecutorial misconduct plays a leading role in wrongful convictions; it should never be taken lightly.

    •  Agreed on all counts. The process was tainted (1+ / 0-)
      Recommended by:
      P Carey

      sufficiently to demand a new trial, given the reasonable doubt about the credibility in a fair verdict. I had meant to add several of those points you listed, but had an early morning. As you note, the blog posts were not even the worst of it.

      "Government by organized money is just as dangerous as Government by organized mob." -- Franklin D. Roosevelt

      by Kombema on Wed Sep 18, 2013 at 06:30:02 PM PDT

      [ Parent ]

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