Judge Throws Out Officers’ Convictions in Killings After Hurricane Katrina

Sgt. Robert Gisevius, center, in 2007. He was one of four officers convicted in connection with a fatal shooting on a New Orleans bridge in the days after Hurricane Katrina.

Citing “grotesque prosecutorial misconduct” on the part of federal lawyers here and in Washington, a judge on Tuesday threw out the 2011 convictions of five former police officers who had been found guilty in a momentous civil rights case of killing two citizens and engaging in an extensive cover-up in the days after Hurricane Katrina.

In a heated 129-page decision, Judge Kurt D. Englehardt of Federal District Court here declared that federal prosecutors had created a “prejudicial, poisonous atmosphere” in making anonymous online comments before and during the trial at nola.com, the Web site of The Times-Picayune, and ordered a new trial for all five officers.

The decision represented the collapse, for now, of a case that was seen as symbolizing both the profound breakdown of law and order after the hurricane and a deep rot within the city’s police department that dated back well before the storm. 

While a scandal over anonymous online commenting had already cut short the federal careers of two local prosecutors and the United States attorney himself, Tuesday’s decision identified another, previously unknown commenter: a veteran lawyer in the Department of Justice in Washington who had a role in preparing the case for trial.

“This case started as one featuring allegations of brazen abuse of authority, violation of the law and corruption of the criminal justice system,” the decision read. “Unfortunately though the focus has shifted from the accused to the accusers, it has continued to be about those very issues.”

The vacating of the 2011 convictions, which were hailed by the city’s officials and by Attorney General Eric H. Holder Jr., was another setback for a wide-ranging federal campaign to reform the New Orleans Police Department and hold some of its officers accountable for past abuse. A consent decree mandating full-scale departmental changes, announced with fanfare by the city and the Justice Department last summer, is now being appealed by city officials, who said they were unaware of the costs of a separate decree being negotiated that concerns the troubled city jail.

The most notorious of several criminal investigations concerned the shootings on the Danziger Bridge on Sept 4, 2005, when the streets were still flooded and citizens were scavenging for basic supplies. Responding to a distress call, officers raced to the bridge and, according to testimony of witnesses, opened fire without warning, leaving four badly injured and James Brisette, 17, and Ronald Madison, a mentally disabled 40-year-old, dead. Trial witnesses described the cover-up that followed, beginning at the scene with the arrest of Ronald’s brother, Lance Madison.

The case wound its way through the system, first falling apart in state court over grand jury improprieties before being taken over by federal prosecutors in 2008. Four officers — Kenneth Bowen, Robert Gisevius, Anthony Villavaso and Robert Faulcon — were eventually convicted in connection to the shooting itself. Another, former Detective Arthur Kaufman, was convicted for his part in the cover-up.

Judge Englehardt, who declared a mistrial last year in the case of another officer involved in the Danziger case, had long been critical of the prosecution. At the defendants’ sentencing last year, the judge, an appointee of President George W. Bush, criticized federal prosecutors for the plea deals that had been offered to cooperating witnesses, among other things.

Some of these criticisms were raised in Tuesday’s decision, but the main objections concerned the behavior of prosecutors online.

That someone in the United States attorney’s office had been anonymously commenting on nola.com was first revealed in the spring of 2012 by lawyers representing the target of a high-profile corruption investigation. The revelations were the talk of New Orleans as lawyers identified a longtime assistant United States attorney, Sal Perricone, as a prolific and rather acerbic commenter under several handles. The targets of his commentary were varied and included the police department, which he called “corrupt,” “ineffectual” and “a joke.”

Several months later, Jan Mann, the office’s second-highest-ranking prosecutor, was also revealed to have been commenting anonymously. In the wake of this disclosure, Jim Letten, at the time the longest-serving United States attorney in the country, stepped down.

Neither Mr. Perricone nor Ms. Mann was a part of the federal trial prosecution team. But the defendants, citing Mr. Perricone’s extensive online comments about the case, had already requested a new trial.

After Mr. Letten’s resignation, the Justice Department announced that John A. Horn, a federal prosecutor from Georgia, would be investigating the office for misconduct relating to the commenting scandal. The judge describes his dissatisfaction with Mr. Horn’s findings, four times sending questions back that he wanted Mr. Horn to answer. It was over the course of this back and forth that Mr. Horn reported that Karla Dobinski, who since 1985 has been a trial lawyer in the Civil Rights Division of the Justice Department, had commented several times on nola.com under the name “Dipsos.”

Ms. Dobinski had an important role leading up to trial, as the lawyer in charge of the so-called “taint team,” which among other things ensured that testimony given by police officers under immunity was not later used against them (the failure to do so is what fatally compromised the case in state court).

Ms. Dobinski was in Washington during the trial and did not appear to have made the sort of provocative online remarks made by Mr. Perricone or Ms. Mann. But in the last week of trial, she urged along certain nola.com commenters who were following the trial and were strongly in favor of the prosecution. Judge Englehardt suggested that the discovery of Ms. Dobinski’s commentary was “the straw that broke the camel’s back.”

In a statement, a Justice Department spokeswoman expressed disappointment with the ruling, saying that the department was reviewing the decision and considering the options. 

“It’s almost unbelievable,” said Stephen Gillers, a law professor at New York University, adding that the risks of social media are a frequent discussion topic among lawyers. “This is the most dramatic danger sign that we’ve had come along.”

In a statement, Dr. Romell Madison, the brother of Ronald and Lance, urged the Justice Department to appeal.

“This decision reopens this terrible wound not only for our family but our entire community,” his statement read. It concluded, “Our fight for justice continues.”