The prosecutorial abuses he saw were “astonishing,” Engelhardt concluded.
“This case started as one featuring allegations of brazen abuse of authority, violation of the law, and corruption of the criminal justice system; unfortunately, though the focus has switched from the accused to the accusers, it has continued to be about those very issues. After much reflection, the Court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end.”
Prosecutors, fighting the defense motion, had said the anonymous postings were “remarkably low profile musings of an unrecognizable citizen.”
For the judge, the balance had tipped. A judge can dismiss even the significance of a jury’s guilty verdict “if the interest of justice so requires,” he wrote. His role, he said, was “safeguarding the integrity of the jury trial.”
“This testimony and other recited information illustrate the diseased root that unfortunately casts an ineradicable taint on these convictions,” he opined. “The government’s actions, and initial lack of candor and credibility thereafter, is like scar tissue that will long evidence infidelity to the principles of ethics, professionalism, and basic fairness and common sense necessary to every criminal prosecution, wherever it should occur in this country.”
The judge made a choice. The interest of justice called for a new trial. The totality of the circumstances, Judge Kurt Engelhardt concluded, “is more than this Court can bear.”
His ruling elated the defense team and officers, emboldened scores of other defendants then facing prosecution by the Department of Justice, and stunned the relatives of the two residents killed on the bridge that morning.
Sherrel Johnson had sat through each day of the trial, unable to leave the courtroom and needing to hear every word of how and why her child was taken from her. With the ruling, it felt as though JJ was being taken from her again. “Is my son going to get a new lease on life?” she asked, when an Associated Press reporter called her following the judge’s ruling. “Is he coming back? What about the mental anguish that these people put us through?”
Engelhardt’s sledgehammer against the prosecution triggered immediate, tangible action. A string of criminal defendants filed motions in the federal courthouse, seeking to block evidence or overturn convictions based on online postings in their cases.
One of them was former mayor Ray Nagin, who led the city’s response during Hurricane Katrina but was later indicted, and ultimately convicted, for exchanging city business for a string of personal perks, including trips to Jamaica, work-free consulting jobs, and shipments of granite for his countertop company. The former mayor, who took office with no political experience and appointed a populist insider to run the police department, was sentenced to ten years in prison. That sentence earned Nagin distinction as the first mayor in city history imprisoned for corruption.
Four days after the ruling, the Times-Picayune reported this swell of events:
When U.S. District Judge Kurt Engelhardt last week granted a new trial for five former police officers convicted in the Danziger Bridge shootings post-Katrina, observers wondered how long it would take for the implications of the order to manifest across the federal courthouse.
The answer came only a couple of days later, as high-profile defendants facing unrelated corruption charges began scrambling to leverage the blistering decision, and the government misconduct it revealed, to help their own cases. The list so far includes . . . Ray Nagin and Stacey Jackson, who headed the Nagin administration’s botched effort to fix homes after the storm.
More are expected to come. An attorney for Renee Gill Pratt, the former state representative and New Orleans City Council member convicted of corruption, is already considering a motion for a new trial.
That’s only part of the fallout, experts said, from a 129-page order that’s forced the Justice Department into a defensive stance across several fronts . . .
Sergeant Archie Kaufman, who helped concoct the script casting police as superheroes and the victims as thugs, he of the “Everything’s cool, babe” slogan, was set free from prison while the case awaited a potential retrial.
Lance Madison now worried that the officers who shot his brother and framed him would be free too. “Lance’s real concern was, Are they going to get out of jail?” said Shannon Fay, the Baton Rouge attorney who had helped free Lance.
Those defendants were not freed, at least not yet. Because they fired their weapons at the residents, the other four convicted officers, Faulcon, Bowen, Villavaso, and Gisevius, remained behind bars while prosecutors, the defendants, and the families braced for the next legal turn.
The federal government challenged Engelhardt’s ruling on appeal. His decision was not grounded in the law, the Justice Department said, arguing that the judge was not objective and should be removed from the case.
Instantly, some in the community of defense lawyers hailed Engelhardt.
“Move over, Emmet Sullivan and Carmac Carney. Add Kurt D. Engelhardt to the Honor Roll roster of federal district judges willing to speak truth to the U.S. Department of Justice. Willing to speak truth and to do something about it,” one defense lawyer wrote on a white-collar-defense crime blog. “Judge Engelhardt’s opinion is lengthy, but one that should be required reading for every criminal defense attorney who practices in federal court and every DOJ prosecutor throughout the land.”
Yet in other legal circles Judge Engelhardt’s view failed to gain traction. Other New Orleans officials facing public corruption cases failed in their attempts to latch on to Engelhardt’s ruling. Nagin’s bid to delay his sentencing, citing the ruling and online comments, was rejected. Another judge dismissed former New Orleans City Council member Renee Gill Pratt’s bid for a new trial, ordering her to serve her four-year corruption sentence. Housing official Stacey Jackson failed to parlay the online comments into her own legal gain.
From his office at the National Urban League in New York, former mayor Marc Morial was taken aback by Engelhardt’s ruling. Morial was troubled by the online conduct of federal prosecutors in the New Orleans US Attorney’s Office. They should be punished, and severely. But revoking the verdict altogether because of anonymous banter posted on the bottom of stories, comments few people saw? “I think the judge overstepped. I think those prosecutors should have been disciplined but by throwing out the case, I think the judge overreached. I think it went too far.”
For prosecutors Engelhardt’s ruling raised further complicating factors. Detective Lehrmann, the first to cooperate, has served his three-year sentence. Would Lehrmann take the stand again? “Jeff’s already worked out his deal. There’s nothing over his head,” said his lawyer, Davidson Ehle. “What incentive would Jeffrey Lehrmann have to expose himself to those kinds of attacks again?”
Other defendants who pleaded guilty, including Lohman and Barrios, would have served their sentences within two or three years after the judge’s ruling. If the appeals dragged on for years, they too would potentially have no reason to testify.
Ehle is among those questioning Engelhardt’s ruling. Sure, the prosecutors were “idiots” for engaging in the online ramblings. But he questions the connection between those musings and the trial itself. “I was very surprised by his reasoning,” the lawyer said. “I just think it took contorting to arrive at the end result he did. . . . I can tell you there are a lot of folks still scratching their heads.”
The judge’s ruling continues to delay any action in the civil lawsuits brought by the Madisons, the Bartholomews, Sherrel Johnson, and Jose Holmes Jr. against the city and police. Once criminal charges were filed those civil cases were put on hold until the criminal case resolved. Engelhardt’s order means the families must continue to wait for their day in civil court.
“It’s a setback, but I don’t know if you can say they expect a whole lot of justice to be served,” said the Bartholomew family’s lawyer, Edwin Shorty. “I mean, how much justice do you expect when
you’ve been shot by a police officer?”
More than a year after Engelhardt’s ruling, the city had taken no affirmative steps to settle their civil case, the lawyer said, raising the question: Will this family have to testify again, once more reliving that morning—both in a potential retrial, and again in a civil case? “Nobody wants to see them testify again,” he said.
Also awaiting his day in court is former sergeant Gerard Dugue, who separated his case from the other Danziger defendants and is challenging the government’s charges. At Dugue’s first trial, Engelhardt declared a mistrial, citing a prosecutorial error in court. No second trial date has been set, and the judge’s order vacating the string of guilty verdicts against the other New Orleans officers means Dugue’s case continues to be on hold.
Judge Engelhardt did not want to discuss his ruling. “The judge does not give out interviews, especially on that matter,” his office said. Perricone, the online commentator whose words factored so heavily into the judge’s order, also declined to comment while the case coursed through the appeals court. “I will not have any comment, until that court rules, if ever,” he wrote me. “I hope you understand.”
Four days after Engelhardt’s order the Washington Post editorial page weighed in. The newspaper took no issue with criticism of the online comments, calling them “egregious, unjustifiable, unprofessional abuses of authority.”
“However, his conclusion that the online postings created a ‘prejudicial, poisonous atmosphere’ that justified throwing out the convictions is a huge stretch. By that logic, overturning the convictions might also be justified by the TV show ‘Treme,’ which began airing on HBO 14 months before the officers’ trial and depicts the New Orleans police as corrupt, brutal and violent. It’s a safe bet that more New Orleanians have seen ‘Treme’ than the prosecutors’ online postings.”
The judge acknowledged “there is no evidence that members of the jury saw the online postings in question or any online postings about the case,” the paper noted.
“In the howling wind of pre-trial publicity about the case—in print, online, on television and in social media—it is far-fetched to believe that the online rants of the prosecutors, while blatantly improper, were anything more than a speck of dust,” the Post continued.
“Judge Engelhardt’s emotional 129-page ruling is unconvincing in the extreme. It gives the impression that he is so exasperated and infuriated with prosecutors, for a host of reasons not confined to the online postings that he has thrown out the officers’ convictions in a fit of pique.”
The editorial closed with a sentiment shared by many in the Bayou city and renewed with the judge’s order: “The result is to restore what many people in New Orleans surely wished had receded along with Katrina’s floodwaters: an abiding sense that justice has not been done.”
EPILOGUE
AS A NATIONAL CIVIL RIGHTS MOVEMENT STIRS, JUSTICE IS ON HOLD IN NEW ORLEANS
THE MUDDY IMAGES WERE captured by a bystander’s cell phone on April 4, 2015. A black man in a bright short-sleeved shirt sprinted for his life, as a white police officer in a dark uniform stood firm, his pistol raised shoulder high and steadied by two hands. Pop, pop, pop, pop, pop, pop, pop, pop. Eight shots rang out, each one aimed at Walter L. Scott, a fifty-year-old forklift operator pulled over minutes earlier for a faulty tail light. Scott had jumped out of his car after the traffic stop and, following a tussle with the officer, sought to escape. Officer Michael T. Slager raised his weapon. On his eighth shot, Scott crumpled to the ground, his knees buckling mid-step. Moments later, with Scott’s face crushed into a patch of grass and his lifeless arms locked by handcuffs, Slager tossed his Taser near the body, appearing to plant evidence to justify his actions. The world awoke the next day to reports detailing yet another instance of an unarmed black man dying at the hands of a white police officer, this time in North Charleston, South Carolina, a city of some 100,000 that once was home to slave plantations.
In Staten Island, New York, nine months earlier, on July 17, 2014, police accused Eric Garner, forty-three, of illegally selling single cigarettes, a small-time crime. One officer put Garner in a chokehold for fifteen seconds. “I can’t breathe,” the 350-pound Garner said eleven times, before taking his final breath. Less than a month later, on August 9, 2014, in Ferguson, Missouri, Michael Brown, eighteen, was killed by a gunshot from a twenty-eight-year-old police officer, the traumatic event set in motion all because the teenager had earlier snatched cigarillos from a convenience store. The teenager’s death brought national attention to the killing of black residents at the hands of officers in blue.
During the latter months that I researched the shootings on a small bridge in New Orleans six days after Hurricane Katrina, the specter of black victims killed by police stirred outrage across the country—and sparked a new civil rights movement. Protestors marched in the streets, praying for change and sometimes pushing back against police with violence. They carried signs with the message Black Lives Matter.
The signs were carried again, this time in Baltimore, as masses shouted those words and raised their fists skyward after another suspicious death of a black man, that of Freddie Gray, who died Sunday, April 19, 2015, a week after suffering a severed spinal cord while in police custody. When he was initially taken in, Gray, twenty-five, winced in pain as police surrounded him. He was then forced into a van for transport to a police station. Forty-five minutes after its initial contact with Gray, the Baltimore PD called for a medic unit to treat his “serious medical distress.” Gray’s death, and the mystery over how he suffered three broken vertebrae, stoked decades of mistrust between residents and police in the predominantly black city. Suddenly looters were setting police vans afire, hurling rocks toward officers, burning buildings and shattering glass, and shutting down swaths of the city. As the National Guard came to town, the Baltimore Orioles played a baseball game closed to spectators, the empty Camden Yards a surreal consequence of the city’s rapid descent.
“Riots Erupt,” the Baltimore Sun front page declared April 28, twenty-three days after images of Walter Scott’s final steps had splashed across newspapers. The Sun front page carried three stories that morning, encapsulating the loss and chaos: “Funeral,” “Violence,” “State of Emergency.” Voices, from former Baltimore Ravens superstar Ray Lewis to renowned Baltimore crime chronicler David Simon, urged peace in the streets and a deeper look at police misconduct. President Obama decried the rioters as “criminals and thugs” but said Gray’s death warranted a searching review of police and race.
As those events played out, I kept thinking back to the two families hunted on the Danziger Bridge on September 4, 2005, following a police distress call that had nothing to do with these eight residents, each of them black and unarmed. Ten years later, justice for these families remained an open question, a development both sobering and telling.
On April 29, 2015, three weeks after absorbing the front-page images of a tumbling Walter Scott and one day after studying pictures of burning police cars in Baltimore, I returned to New Orleans to hear legal arguments over whether the five police officers convicted at trial in the Danziger Bridge case would receive a new trial. The evidence of their guilt was compelling, detailed in court by other officers who pled guilty and unmasked the truth of that morning, and by the victims who survived the bloodshed. Yet those convictions were put into question by a legal red herring involving online comments written on the local newspaper’s website by federal prosecutors.
This April morning, lawyers for the government and the officers made their case before three judges sitting as the US Court of Appeals, Fifth Circuit. The Madison family and Sherrel Johnson sat in the spectators’ front row, while prosecutor Bobbi Bernstein and civil lawyer Mary Howell sat one row behind them. They likely were not encouraged by what they heard.
The judges peppered Justice Department lawyer Elizabeth Collery with questions about the online postings of former New Orleans prosecutors Sal Perricone and
Jan Mann and Washington DOJ staffer Karla Dobinski, several times interrupting Collery with more questions. The DOJ lawyer agreed the online commentary was out of bounds, with Perricone and Mann using pseudonyms in filling the local newspaper’s website with derisive barbs aimed at police in New Orleans in the Danziger case and others. The DOJ’s internal watchdog, the Office of Professional Responsibility, concluded those actions damaged the office’s integrity. “What Mr. Perricone did was misconduct, and it was reprehensible,” Collery said, adding that Mann also had committed “misconduct.” Both had been forbidden to practice law in the circuit, and Dobinski, whose comments were far less frequent and much more benign, had become the subject of an internal DOJ review. But, Collery argued, their comments had no bearing on the jurors’ verdict, a decision the government said should be reinstated. “Your honor, none of that has anything to do with the jury’s verdict in this case,” Collery said. “The blogging never affected the trial in the first place.”
The appeals court jurists—charged with deciding whether to order a new trial or reinstate the verdict—did not seem convinced. “It still seems a little sleazy, doesn’t it?” one judge asked, citing Judge Engelhardt’s finding of prosecutorial misconduct in his 129-page order. Billy Gibbens, an appeals attorney for former sergeant Arthur Kaufman, said the cover-up that had occurred was one perpetrated by prosecutors in withholding information from the trial judge, who had to press to get the full story about the online commenting. The appeals court judges did not interrupt Gibbens as they had DOJ’s Collery. They did not rule right away, but their behavior left the impression that the events of that Sunday morning on the Danziger Bridge could replay in a second trial.
Shots on the Bridge Page 24