NEW ORLEANS - A federal judge on Tuesday granted a new trial for five NOPD officers convicted in the Danziger Bridge case, citing "grotesque prosecutorial misconduct" on the part of the government, for their handling of the case which sent the officers to prison.
Judge Kurt Engelhardt granted the motion filed by convicted ex-Sgt. Archie Kaufman, as well as defendants Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso. (See ruling)
Online comments made by Sal Perricone and Jan Mann while they were top assistant U.S. attorneys factored into the decision.
In his 129-page ruling, the judge called the actions of the prosecution "highly unusual, extensive and truly bizarre," requiring reversals of the convictions. He called the move a "bitter pill to swallow."
"This case started as one featuring allegations of brazen abuse of authority, violation of 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," Engelhardt wrote.
He is referring to comments posted on NOLA.com by Mann and Perricone, which prompted a months-long investigation by a special prosecutor, Georgia first assistant U.S. Attorney John Horn, and the judge himself. The judge also called for an investigation into alleged leaks by prosecutors to the news media, particularly the Times-Picayune and the Associated Press, surrounding the case.
"We are extremely disappointed in Judge Engelhardt's decision granting a new trial in the Danziger criminal civil rights case," said Dr. Romell Madison, who lost his brother Ronald in the shooting and saw his other brother, Lance, falsely implicated in the incident. "It has been over 8 years since our brother Ronald was shot and killed on the Danziger bridge and our brother Lance was falsely arrested and framed on 8 counts of attempted murder. This decision re-opens this terrible wound not only for our family but our entire community."
"From the beginning of this ordeal our family has sought justice, not just for ourselves, but for all the victims and families. We urge the Department of Justice to appeal Judge Engelhardt's decision.
Our fight for justice continues."
Federal officials have not said whether they will appeal Engelhardt's ruling to the Fifth Circuit Court of Appeals.
Mann and Perricone, though not directly involved in the Danziger case, later retired from the U.S. Attorney's office in disgrace, as did their former boss, Jim Letten.
Jan Mann's husband, veteran prosecutor Jim Mann, also resigned, but never admitted posting comments or knowing about his wife's online activities.
Any decision on whether to appeal Engelhardt's reversal would have to made at the highest levels of the Department of Justice, experts say, because the case was tried jointly by the local U.S. attorney's office and prosecutors from the DOJ's Civil Rights Division in Washington, D.C.
The head of the federal prosecutor's office in New Orleans, Interim U.S. Attorney Dana Boente, issued this statement Tuesday: "We are disappointed in the court's ruling. We are reviewing the decision and considering our options."
Boente was appointed when Letten retired amid the scandal.
Engelhardt's lengthy motion details Perricone's running commentary of the Danziger trial on nola.com as the trial was ongoing. The motion also implicated another Departmant of Justice attorney, Karla Dobinski, who posted under the name "Dipsos." Dobinski is a trial attorney for the Civil Rights Division for the DOJ in Washington, D.C. These online comments by the prosecutors created a "carnival type atmosphere" around the Danziger case, forcing order for new trial, Engelhardt concluded.
Perricone and Mann were exposed as making online comments as part of a lawsuit by Fred Heebe, a target of a federal lawsuit.
While questions linger as to when did Perricone and Mann's boss, then-U.S. Attorney Jim Letten, know about the online comments, according to Engelhardt's ruling, Mann told Letten.
According to the court document, Mann testified in Nov. 2012: "She further asserted, quite definitively, that in the days between the filing of the Heebe lawsuit against Perricone, and USA Letten's March 15, 2012 press conference acknowledging Perricone as 'Henry L. Mencken1951,' she advised Letten that she, too, had posted on Nola.com."
Letten declined to comment to Eyewitness News, through a spokesman at Tulane University, where Letten now works.
Bowen, Gisevius, Villavaso and Faulcon were convicted of firing weapons on the Danziger Bridge on Sept. 4, 2005, killing two men and wounding four others, and later participating in a cover-up, among other charges. They were sentenced in April 2012, to terms ranging from 38 to 65 years in prison.
Kaufman was also convicted on charges related to the cover-up. Engelhardt sentenced Kaufman, who was not involved in the shootings, to six years in prison for helping mastermind the cover-up.
Kaufman's attorney, Steve London, told Eyewitness News, "Obviously, I am very happy with Judge Engelhardt's ruling. I look forward to re-litigating this case."
Five other former NOPD officers pleaded guilty and testified for the government at trial, receiving more lenient sentences as a result.
A final defendant, Gerard Dugue, a retired sergeant, is still awaiting trial on charges related to his alleged role in the cover-up.
A statement from the family of two of the victims in the case, Ronald and Lance Madison, urged the federal government to appeal Judge Engelhardt's ruling. Ronald Madison died of his injuries, along with 17-year-old James Brissette. Lance Madison was taken into custody at the time and accused of attempted murder of the police officers.
"This decision reopens this terrible wound not only for our family but our entire community," said a statement Tuesday from Dr. Romell Madison, the brother of Ronald and Lance Madison.
"From the beginning of this ordeal, our family has sought justice, not just for ourselves but for all the victims and families. We urge the Department of Justice to appeal Judge Engelhardt's decision. Our fight for justice continues."
An attorney for another one of the men shot on the bridge in 2005, Jose Holmes, said he didn't expect a new jury to reach a different verdict, however.
"I don't see a difference in the final outcome of this case," said attorney Gary Bizal. "There is so much evidence against these guys. If the Fifth Circuit (Court of Appeals) upholds the judge's ruling, i don't see a difference in the long run."