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Judge vacates verdicts in post-Katrina killings

Orders new trial for five officers convicted in 2011

The arrest of Lance Madison, the brother of a man slain in the Katrina aftermath, began a cover-up, witnesses said.

Alex Brandon//The Times-Picayune via Associated Press

The arrest of Lance Madison, the brother of a man slain in the Katrina aftermath, began a cover-up, witnesses said.

NEW ORLEANS — Citing “grotesque prosecutorial misconduct” on the part of federal lawyers here and in Washington, a judge 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 129-page decision, Judge Kurt D. Englehardt of US 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 website of The Times-Picayune, and ordered a new trial for all five officers.

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The decision marked the collapse, for now, of a case that was seen as symbolizing both the profound breakdown of law and order in the post-hurricane period 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 US 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 federal campaign to overhaul the New Orleans Police Department.

A consent decree mandating full-scale departmental changes, announced with fanfare by the city and the Justice Department last summer, is 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 Madison’s brother, Lance.

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.

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 in 2012, 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 US attorney’s office had been anonymously commenting on nola.com was first revealed in spring 2012 by lawyers representing the target of a high-profile corruption investigation.

The disclosures were the talk of New Orleans as lawyers identified a longtime assistant US 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,” 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 US attorney in the country, stepped down.

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

After 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 described his dissatisfaction with Horn’s findings, four times sending questions back that he wanted Horn to answer. It was over the course of this back and forth that 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.

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