Ex-Cops Get New Trial|in NOLA Shootings

     NEW ORLEANS (CN) – Five former New Orleans police officers convicted in the post-Katrina Danziger Bridge shooting deaths of two unarmed men are entitled to a new trial because of the “carnival atmosphere” created by federal prosecutors’ anonymous online postings, the Fifth Circuit ruled.
     “That three supervisory-level prosecutors committed misconduct in connection with the Danziger Bridge prosecution is beyond dispute,” Judge Edith Jones wrote for a three-member panel in Tuesday’s decision affirming a retrial.
     In 2011, a jury found four of the officers – Sgt. Kenneth Bowen, Sgt. Robert Gisevius, and officers Robert Faulcon and Anthony Vallavaso – guilty of civil rights violations. They were sentenced to 38 years in prison.
     A fifth officer, retired Sgt. Arthur Kaufman, who was not involved in the shooting but led a police investigation, was found guilty of orchestrating a cover-up and sentenced to six years.
     The Danziger Bridge is one of eight bridges crossing the Industrial Canal. It connects New Orleans with Eastern New Orleans, a neighborhood badly flooded during Hurricane Katrina 10 years ago.
     Police shot and killed two people, including a mentally disabled man, and seriously wounded four others. The Danziger Bridge shooting was widely publicized because of the years-long police cover-up, which involved planting a gun at the scene and wrongly accusing innocent civilians of shooting at police.
     But an Eastern Louisiana district court granted the officers a new trial, describing the prosecutors’ ethical lapses as having created an “online 21st century carnival atmosphere.” It was after the verdict, but before sentencing, when it was brought to light that three high-ranking federal prosecutors were involved in posting online, anonymous comments to newspaper articles throughout the case.
     On Wednesday, the New Orleans-based Fifth Circuit upheld the decision, writing that the anonymous postings “gave the prosecution a tool for public castigation of the defendants that it could not have used against them otherwise, and in so doing deprived them of a fair trial.”
     “Prosecutorial misconduct commenced even before indictments were handed down and continued throughout trial and into the post-trial proceedings, and that misconduct affected the prosecution and trial in ways that cannot be fully evaluated due to the government’s mishandling – to put it politely – of the investigation into cyberbulling,” Jones wrote for the majority.
     The ruling noted that, while defendants frequently seek mistrials alleging prosecutorial misconduct, their motions are rarely granted – but in this case, the police officers were prejudiced by the government’s behavior.
     “Most pernicious, these attorneys’ online comments knowingly contributed to the mob mentality potentially inherent in instantaneous, unbridled, passionate online discourse,” Jones wrote, adding that prosecutors “created an air of bullying against the defendants.”
     Judge Edward Prado disagreed with the majority opinion, writing that, although government attorneys “acted deplorably in this case, and their punishment has been unconscionably mild,” a new trial “is not the proper remedy.”
     “In sum, I would conclude that the district court abused in discretion in granting a new trial,” Prado wrote. “The district court erred in not applying our established Rule 33(b)(1) standard, and the defendants have not carried their heavy burden to prove that the evidence introduced at a new trial would probably produce an acquittal.”

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