Monica Hernandez / Eyewitness News
NEW ORLEANS - Gerard Dugue had little to say as he walked out of federal court with his family Friday night. He had been on the stand for hours, starting at 8:55 Friday morning, when a judge declared a mistrial.
"We respect the court's decision," said Dugue's attorney, Claude Kelly. "That's the only thing at this time."
Kelly added that his client's mood hasn't wavered.
"He's maintained his innocence from the start, and he will continue to do that whatever happens," said Kelly.
Dugue is charged with covering up the deadly shootings on the Danziger Bridge in the aftermath of Katrina. He is the last of the defendants to go to trial. And after five days of testimony, Judge Kurt Engelhardt ruled his trial could not continue. He said prosecutors violated a pre-trial ruling that they were not allowed to refer to another highly publicized case involving police misconduct: that of Raymond Robair.
Dugue investigated that case as well, but was not among those charged.
In court, Kelly said the name "Robair" was just as powerful to New Orleanians as "Glover" and "Danziger." He said prosecutors' reference was fatal to Dugue's case and could taint the jury. Engelhardt called it a "desperate attempt" by prosecutors.
Prosecutors apologized and pleaded with the judge to continue Dugue's trial, but Engelhardt yelled back, enraged.
He said from the bench, "The government doesn't run my courtroom. You don't get to decide what is admissible... I've been at this now for over 10 years, and never had to declare a mistrial in a criminal case."
During a 30-minute debate from both sides over whether the trial should continue, lead prosecutor Bobbi Bernstein argued that she believed Engelhardt had signaled his approval to refer to Robair when he raised his eyebrows as she was cross-examining Dugue. Engelhardt refuted, saying he was not a body language expert.
Eyewitness News legal analyst Chick Foret said a mistrial is a bad situation for both sides, and could result in the case being thrown out entirely.
"I anticipate Mr. Kelly, the lawyer for Mr. Dugue, will make several motions. First motion he will make is that Mr. Dugue cannot be retried, that double jeopardy has set in and the prosecutor did it intentionally for whatever reason, perhaps the trial wasn't going well," said Foret.
U.S. Attorney Jim Letten just said it would be inappropriate for him to comment on the case, except to say, "It is our intention to retry the matter."
Kelly said what will happen next is not his decision.
"Ms. Bernstein is a very intelligent, experienced, well-prepared prosecutor," Foret added. "It certainly makes one scratch his or her head as to how this could happen."
