case law update

New Trials Ordered for Police Officers Convicted in Hurricane Katrina Homicides and Cover-Up

On September 4, 2005, following Hurricane Katrina, New Orleans police officers were dispatched to the Danziger Bridge.  In the chaotic atmosphere, two unarmed men were shot and killed.

Before the United States District Court for the Eastern District of Louisiana, a federal grand jury returned a 25-count indictment against five former New Orleans Police Department (“NOPD”) officers.  Other officers were charged, but agreed to plead guilty.  Subsequently, internet postings discussing the case were made at the New Orleans Times-Picayune website and at Nola.com.  Some of the postings discussed information which was not publicly available. 

In March 2012, an Assistant United States Attorney, Mr. Sal Perricone, of the Department of Justice (“DOJ”) was discovered to be one of the individuals posting information online.  Shortly after the revelation, the District Court convened the parties to discuss the matter.  United States Attorney Jim Letten, accompanied by Assistant United States Attorney Jan Mann, stated in court that Mr. Perricone alone had posted such comments.  The District Court judge ordered the Government to reveal who leaked information to the press and also to verify that only Mr. Perricone had publicly commented about the case and to catalog his comments chronologically.

Ms. Mann was tasked by Mr. Letten to conduct the investigations.  She prepared a report indicating that Mr. Perricone was the sole culprit and opined that the defendants were likely responsible for the press leaks.  In August 2012, Mr. Perricone provided an interview to New Orleans magazine, wherein he admitted to posting about the case under multiple names, thus contradicting DOJ’s representation to the District Court.  On October 10, 2012, the District Court held a status conference wherein Mr. Perricone was questioned extensively, admitting he had posted under multiple user names and explained the basis for his belief that other posters were also sharing internal DOJ information.

On November 2, 2012, a lawsuit was filed claiming that Ms. Mann had also posted comments online using internal DOJ information.  Several days later, Mr. Letten confirmed to the District Court Ms. Mann had indeed posted such information online.  The District Court noted the troubling nature of Ms. Mann’s involvement; she had been tasked with investigating DOJ’s behavior in order to ensure the fair treatment of defendants, and she had stood silently in District Court as Mr. Letten stated that Mr. Perricone alone had posted case information online when she knew it was not true.  In an investigation, Ms. Mann claimed she confessed her online posting to Mr. Letten in March of 2012 and that she believed he was aware that other DOJ employees were posting as well. 

The District Court also learned that a third DOJ attorney whose “responsibility in the course of the prosecution was to protect indicted police officers’ civil rights” was also posting information online. 

The District Court attempted to determine whether forensic computer data could be recovered which would provide information about computer use by DOJ employees, but such records had not been retained by DOJ, which the District Court found “disappointing and unsettling.”

The District Court found additional behavior to be concerning:  DOJ provided vague and evasive answers when ordered to investigate the internet postings; at least one individual felt coerced to enter a guilty plea rather than proceed to trial; DOJ allegedly threatened three witness with perjury prosecutions if they testified in defense of the NOPD officers; an FBI Special Agent may have contacted a witness in contravention of a court order and also “threatened a potential defense witness with being separated from her three children ‘for lying;’” there were gross sentencing disparities between officers who pleaded guilty (five to eight years imprisonment) compared to those defendants who proceeded to trial (thirty-eight to sixty-five years imprisonment) because of DOJ’s inconsistent pursuit of maximum sentences and selective prosecution of firearms charges, and; DOJ pressured cooperating witnesses to “shade” their testimony against those who went to trial. 

DOJ attempted to argue that the damage done was mitigated because some of the inappropriate behavior was by individuals not on the “trial team.”  The District Court explained that it was the obligation of all Government employees not to interfere with the right to a fair trial, regardless of whether or not the employee is on the “trial team.” 

Due to DOJ employees’ internet postings, the District Court’s inability to fully assess the extent of DOJ’s internet postings (due to DOJ’s concealment of information, misrepresentation of facts, and failure to retain internet usage data), as well as the additional concerning conduct by DOJ, the District Court found that the NOPD officers had been denied their constitutional right to a fair trial.  Thus the District Court ordered a new trial for the officers. 

The Government appealed to the United States Court of Appeals for the Fifth Circuit arguing that “anonymous online postings by government attorneys do not warrant a new trial in this case.”  The Court of Appeals affirmed the District Court’s decision to order a new trial.

“The online commenting alone, which breached all [ethical standards], gave the government a surreptitious advantage in influencing public opinion, the venire panel, and the trial itself.  . . . [B]ecause the government refused to adequately investigate its errors, covered up what it knew to be misleading omissions, and in some instances lied directly to the court, the District Court could neither uncover the extent of the prosecution’s transgressions nor determine the severity of the prejudice suffered by the defendants. The government’s unrelenting efforts thus prevented the District Court from evaluating the fairness of defendants’ trial . . . .”  Thus, the Court of Appeals reasoned a new trial was warranted.

The Court of Appeals also found that, despite not knowing the full extent of DOJ’s misconduct, the prejudicial effect of DOJ’s behavior was proven.  At least seven jurors were aware of the Nola.com postings, and those jurors were more likely to believe that the NOPD officers were dishonest. 

“Just as a mob protesting outside the courthouse has the potential to intimidate parties and witnesses, so do streams of adverse online comments. The impact is felt not only by the defendants but by codefendants pressed to plead guilty or defense witnesses dissuaded from testifying. . . .  The government here should not be able to shelter under a banner of ‘no prejudice proved’ while the prosecutors acted no better than, and indeed tried to inflame, the public.”

The Court of Appeals affirmed the new trial order and the cases were remanded for further processing. 

Read the full case: United States v. Bowen

 

This case law update was written by Michael S. Causey, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases

Posted in Case Law Update

Tags: case law update, michael s causey

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