EVEN WITH THE REVOLVING door of the superintendent’s office spinning again, the appeals court ruling affirming the consent decree appeared as yet another success in the federal government’s quest to quash police corruption in New Orleans. Those victories had not gone unnoticed by the Department of Justice.
Earlier, the DOJ had honored its Danziger team with the Attorney General’s Award for Exceptional Service for its successful prosecution of one of the largest police misconduct cases ever brought by the federal government. Cited were deputy chief Bobbi Bernstein, FBI agent William Bezak, special litigation counsel Forrest Christian, trial attorney Cindy K. Chung, and paralegal specialist Steven D. Harrell. Five years earlier prosecutor Bernstein had won the same award for putting away Latino gang members in Los Angeles who targeted blacks.
The police shooters were behind bars. The consent decree was moving forward. Victims were breathing, finally, in relief that the truth was revealed. Even the prosecution team was bestowed with honors.
Still, in one corner of New Orleans, one man remained intently focused on the Danziger Bridge case. As much as anyone—along with, perhaps, the defense attorneys representing the convicted police officers—this man was deeply troubled by the online comments, some posted years earlier, deriding the police actions. As the DOJ was honoring its prosecutors and investigators, this man was busily, quietly putting his own view of those same actions on paper.
By the time he was done, justice would be unsettled once more over the gunfire and bloodshed atop the Danziger Bridge.
CHAPTER 24
“THE INTEREST OF JUSTICE”
The Reversal
ON SEPTEMBER 17, 2013, US district judge Kurt Damian Engelhardt shook the foundation of the case, and the peace of the Danziger families, with a ruling that overturned the federal jury convictions of Robert Faulcon Jr., Kenneth Bowen, Robert Gisevius Jr., Anthony Villavaso II, and Arthur Kaufman. Two years after the victims rejoiced over the jury convictions outside the federal courthouse and in the streets of New Orleans, Engelhardt buried that sense of calm. His 129-page ruling read like a diatribe against the federal team that secured the convictions. Engelhardt’s ruling didn’t challenge the core of the case: that officers stormed the bridge, firing their mass of weapons at unarmed victims with machine-gun relentlessness, and then covered up their crimes by planting a gun, inventing witnesses, and lying through their collective teeth. None of those hard facts were in dispute.
Instead, in an adjective-filled ruling in which the judge cast himself as the vehicle to safeguard the integrity of the federal jury trial process, Engelhardt dismissed the jurors’ convictions largely because of anonymous online comments that had been posted at NOLA.com by staffers employed by the Department of Justice, and because of the prosecutorial “misconduct” he had railed against during the sentencing hearing for the officers, including his view that prosecutors cut sweetheart deals with cooperators.
For the Madison family, which had led the fight to shine a light on the police conduct, it now felt as though Ronald’s killing had never been avenged, that Lance had never been truly exonerated for the phony murder charges. Eight years after Katrina the Madison family and the other families of victims were symbolically back atop the Danziger Bridge.
“It was very disappointing for the whole family,” said Romell Madison, trying to absorb the judge’s ruling. “What we once thought was justice was reversed.”
There’s no evidence a single juror saw any of the anonymous comments that filled the core of Engelhardt’s order or, for that matter, that anyone knew the comments—tacked on to the bottom of stories on the Times-Picayune website—had been crafted by DOJ employees. And legally, the judge’s criticism of the federal investigative tactics and plea deals was something of a broken record. Those were issues that had already played out in court.
In his ruling Engelhardt said this “carnival type atmosphere” was enough to unfairly prejudice the defense and was the basis for ordering a new trial and erasing the most significant police corruption convictions in the city’s history. “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,” Engelhardt wrote on page 127. “In an abundance of caution, the motion must be granted.”
His ruling was filled with language rarely used in a judicial document—“shock and dismay,” the judge wrote, describing his discoveries of the prosecutorial actions, and “shock and dismay” again.
To the judge the online postings by Sal Perricone and others whom a court-appointed monitor discovered—including a DOJ prosecutor based in Washington who did behind-the-scenes work on the Danziger Bridge case—coupled with what the judge described as “shockingly coercive tactics” by the investigative team were abuses grievous enough to invalidate the jury verdict.
On May 18, 2012, a month after the officers were sentenced to prison for the killing and cover-ups, and two months after Perricone had been exposed as the habitual online poster at NOLA.com, the defense lawyers for the convicted officers filed a motion seeking a new trial. Their bases: an early leak about the pending plea deal with Lieutenant Lohman coupled with the spate of online comments created an unfair environment for the clients. The government “engaged in a secret public relations campaign” designed to sully not only the department but also the officers on trial, aiming to make NOPD the household name for corruption, the defense team argued. This campaign, they said, created an atmosphere that essentially convicted the accused before anyone set foot in the New Orleans federal courtroom.
The motion had seemed a long shot to overturn the case. In an early court hearing, the judge said so himself.
But then the judge, as he described the process in his ruling, began “slowing peeling layers of an onion.” Engelhardt did not like what he smelled. His targets were not the police killers but the prosecution team and anyone with DOJ who anonymously posted a comment on the newspaper’s website.
In June 2012, little less than a month after the defense lawyers sought to overturn the convictions, Engelhardt ordered the DOJ to investigate the source of the leak that led to news coverage of Lohman’s pending plea deal two years earlier; the defense was arguing the leak was part of the larger DOJ campaign to prejudice the trial. A month later the judge directed the Justice Department to produce documents revealing the identities of any staffers who posted online comments over a two-year period. A New Orleans federal prosecutor named Jan Mann was assigned to handle both tasks—the federal government’s inquiry of reported internal leaks in the case and the review of any online posting by DOJ staff members during the Danziger case.
That October Judge Engelhardt questioned Perricone in court, and the disgraced prosecutor said the comments were “my little secret.” In short, that they were his alone and the Danziger prosecuting team had no role in them and no knowledge he was the habitual critic of the NOPD.
Then, a month later, a lawsuit in another case contended that Jan Mann, the same first assistant US attorney investigating the leak and online postings, had been an online writer herself, using the moniker “eweman.” Again the DOJ team, led by prosecutor Bobbi Bernstein, said it was unaware of these anonymous postings.
Engelhardt, troubled by the news and believing the DOJ was too slow in adhering to his order for openness, again directed the department to investigate the leak and postings. This was November 26, 2012, six months after the defense motions. A week later a federal prosecutor from Georgia, John Horn, was assigned as special attorney to the attorney general to head up a deeper review of these issues. Horn would report directly to the federal judge Engelhardt.
Then, suddenly, Justice Department casualties began mounting.
Jim Letten, the lead federal prosecutor in New Orleans, a Republican who remained the longest serving US attorney in the country under Democratic President Obama, resigned December 6, 2012. His resignation came as the online scandal
bloomed in the courthouse, touching on cases beyond just the Danziger prosecution, and just as the special prosecutor, Horn, was assigned the review. Then Mann and her husband, another federal prosecutor, retired that same month.
Horn’s review included fresh discoveries. In January 2013 he filed a report to the federal judge saying another DOJ attorney, using the online name “Dispos,” had filed six postings on the NOLA.com site over four days of the trial. These postings were not the screeds of Perricone, ripping the department. Instead, they were written by a federal attorney based in Washington, DC, asking other online commenters to keep her apprised of the trial developments unfolding in New Orleans. “You are performing a valuable public service!” Dispos wrote to one writer filing online updates. Another time she asked if a frequent commenter would “cover the closings”—the closing arguments at the trial—with updates.
Horn’s report did not include the identity behind Dispos, just that the writer was an employee of the Civil Rights Division in Washington. He described the postings as not “inflammatory, critical or prejudicial” and not revealing any grand jury or other nonpublic information.
The judge wanted to know more.
Over the coming months Engelhardt greeted each of Horn’s updates with thanks and a directive for more information. He wanted the names behind the identities, particularly that of “Dispos.” A month after Horn’s first report that January, the judge sent him thirteen follow-up questions to answer. What duties did “Dispos” handle for the DOJ, and who were this person’s superiors? What inquiries have been made into other online postings, beyond the NOLA.com site?
Horn came back in March with more answers. The judge was not satisfied.
“The March 29, 2013 First Supplemental Report still conspicuously did not name the Civil Rights Division employee who posted as ‘Dispos,’ an omission the Court found truly odd, and which further peaked its curiosity,” he wrote.
A month later the judge chatted with Horn, pressing for more answers. That day he sent Horn an e-mail with eight more questions to pursue, including “The full name and title of (a) Civil Rights Division employee . . . and (b) the direct supervisor referenced.”
The judge soon sent along ten more questions. He wanted to know if anyone at DOJ was editing Horn’s reports, suggesting that the reports “expressed advocation in the form of arguably debatable mitigating commentary.” He was questioning whether the reports had been edited to advocate for the Department of Justice.
“Please provide the names and title of all persons, as well as a short description of their respective roles, participating in the preparation, including drafting, editing, approving, and/or supervising, of your reports and submissions to the Court,” he wrote. Engelhardt wanted names.
Horn assured him he and a colleague were writing the reports and the conclusions were theirs. Yet it was clear the judge remained suspicious of the Department of Justice.
“While accepting Mr. Horn’s assertion, the Court nonetheless again expressed its concern and objection to anyone editing his reports to either change or delete facts that have been found, or changing accurate information that was originally included, or adding verbiage in the nature of advocacy to mitigate what findings had been made,” he wrote.
The judge’s focus could not be clearer. He was on a mission to uproot misconduct by the Feds.
On May 15, 2013, Engelhardt got what he was after: the identity of “Dispos,” the writer from DC who had sought updates on the case.
“To the Court’s shock and dismay, ‘Dispos’ eventually was identified . . . as Karla Dobinski, a trial attorney in the Criminal Section of DOJ’s Civil Rights Division,” his ruling said. Six pages later, Engelhardt again expressed “shock and dismay” that the online poster was an attorney who had a behind-the-scenes role in the Danziger case. Dobinski’s task was to ensure that the trial prosecutors did not introduce constitutionally protected evidence or testimony at trial.
There’s no evidence jurors ever saw her few postings. And no evidence that those postings influenced the justice delivered in the courtroom. The judge was deeply unsettled by the news.
Her online postings, checking on the case from DC, represented a “wanton reckless course of action,” Engelhardt concluded.
The judge wanted more information, sending seven more questions to Horn and a colleague to answer in June, and then, after they did, two more requests that month.
By the end of Engelhardt’s judicial inquiry, July 31, 2013, Horn would file five reports to the judge.
This information “had clearly blossomed into a series of newly discovered facts and admissions, unanswered questions, additional apostasies, and a fetor extending far beyond the simple disconcerting notion of a single rogue prosecutor,” he concluded.
The “carnival type atmosphere,” the judge made clear, had made him deeply rethink the defendants’ motion to void the case.
Beyond his ire at the online postings, the judge reiterated his displeasure with the prosecution’s deals with the officers-turned-witnesses: Hunter, Hills, Barrios, Lohman, and Lehrmann. In his 129-page order, Engelhardt again chided the government’s handling of these plea agreements. He criticized FBI agent Bezak’s “frank trial testimony” describing the team’s aggressive ways of pushing for evidence. The judge was unsettled by the agency’s aggressive approach.
“Pressure is a good thing,” Bezak said at trial, “because in my experience, to flip a subject, to get a subject to admit that they’ve committed a crime, it’s not like the movies where you go into a room and three hours later you come out with a confession. In my experience, the only time I’ve been able to get somebody to admit what they’ve done is to back them into a corner; to have, you know, a case that is so strong that they have nowhere to go except to admit the truth.”
To practiced investigators Bezak’s description was no surprise. You press to get the truth, pushing the witnesses as far as you can. The DOJ had honored Bezak’s work in doing just that to help uncover the massive cover-up.
To Engelhardt the tactics were further evidence of a federal prosecution that upset the decorum of the justice system.
Likewise, the plea deals Engelhardt and other judges had derided were, law enforcement experts know, part of the process. The deal’s fine print is fair game for scrutiny, but that they occur is hardly a secret in the criminal justice system. Sometimes the guilty help save themselves by telling on others. In a case as high stakes as Danziger, with the police blue line as deeply entrenched as the Mississippi River, it took cracking these officers—Hunter, Hills, Barrios, Lohman, and Lehrmann—to unearth the lies.
“A cavalier attitude toward the truth cannot be indulged at any juncture or level,” Judge Engelhardt wrote on page 101 of his ruling, speaking specifically about police who pleaded guilty to help save their own skin and to shave time off their prison terms. Some of those officers, Engelhardt believed, fudged the truth on the stand, further tainting the justice in his courtroom.
The judge so deeply questioned Hunter’s credibility, for instance, he had voided the jury’s guilty verdict that Bowen stomped on Ronald Madison. “In granting Bowen’s motion directed to Count X, the Court noted that Hunter’s credibility was so grievously called into question at trial that the Court had taken the unprecedented (for the undersigned) step of ordering the production of FBI Agent Bezak’s handwritten notes of interviews he conducted with Hunter,” Judge Engelhardt wrote.
Hills was given a deal after firing “his side arm twice at the fleeing teenager,” fourteen-year-old Leonard Bartholomew, “albeit missing both times.” Another officer who pleaded guilty and testified, Robert Barrios, “had been forced to admit guilt and to cooperate despite the fact that he was innocent,” the judge wrote, citing the statements of Barrios’s wife, who had interrupted a federal press conference to say he had been forced to plead guilty. To the judge, this was another sign of undue prosecutorial pressure, and he noted that Barrios was not called to the stand by prose
cutors but by the defense. On the stand, however, Barrios said he made the choice to plead guilty. His wife’s outburst was born of the intensity of the moment. “It was just emotions,” he said. “It was at the heat of the moment, that it happened in front of her and she just blew up.”
Finally, the judge blasted the plea deal handed to Lehrmann, the detective who blurted out the name “Lakeisha,” helping to invent a phony police witness, calling the government’s handling of this witness just as disturbing. Engelhardt expressed derision that Lehrmann went to work for the federal government, as an agent with the Immigration and Customs Enforcement division in 2006. Lehrmann joined ICE two years before the federal government officially took over the case, and four years before he pleaded guilty to taking part on the cover-up. The judge was not pleased by those developments, noting that Lehrmann remained on the ICE payroll for three months after his guilty plea.
“It was with some astonishment that the Court learned at trial that Lehrmann, having falsified official police records and attempted to frame an innocent man, matriculated into federal law enforcement, seemingly the worst place to put a man guilty of such transgressions so offensive to the administration of justice.”
The judge devoted six pages of his ruling to dissecting the prosecution’s deals and handling of witnesses.
Yet a simple question loomed. Why? The plea deals had been signed, sealed, and already undergone judicial scrutiny. Those deals, legally, had nothing to do with the appeal at hand. To Engelhardt, they were part of a larger “carnival” atmosphere he felt he had to legally reprimand.
The judge’s order devoted thousands of words to online postings jurors may never have seen and to the prosecution deals already hashed out by other federal judges. Very few words of the 129 pages mentioned the police killing of unarmed residents.
“With a history of unprecedented events and acts, consideration of the defendants’ motion has taken the Court on a legal odyssey unlike any other,” the judge wrote, “. . . to the Court’s knowledge, there is no case similar, in nature or scope, to this bizarre and appalling turn of events.”
Shots on the Bridge Page 23