(CN) - Retrial is necessary after a prosecutor corrupted the first case against a police officer implicated in the controversial shooting and cover-up that occurred in the days following Hurricane Katrina, the 5th Circuit ruled.
A federal judge had declared a mistrial earlier this year in the case against Former police Sgt. Gerald Dugue after a prosecutor discussed admit prohibited evidence.
Dugue, a police investigator, was the sixth police officer to face charges of opening fire as civilians crossed the Danzinger Bridge to rejoin their families and get supplies.
The Danzinger Bridge is one of eight bridges crossing the Industrial Canal. It connects New Orleans with Eastern New Orleans, a neighborhood badly flooded during Katrina.
Police shot and killed two people 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.
After a jury convicted five New Orleans police officers of contributing to the mens' deaths, four officers were sentenced to over 38 years in prison. A fifth officer, Sgt. Arthur Kaufman, was sentenced to six years for planting a gun at the scene.
According to the indictment, Dugue and Kaufman co-authored an incident report to the Orleans Parish District Attorney's Office.
As the case neared trial, the court barred discussion of an unrelated police-misconduct case that resulted in the death of Raymond Robair. Dugue had also investigated that case, which ultimately resulted in the convictions of two officers.
Despite two pretrial rulings on the topic, the prosecutor questioning Dugue over his role in the Danziger Bridge shootings asked about the Robair case during cross-examination.
The prosecutor had claimed that she thought she had clearance to ask because the judge allegedly nodded and raised his eyebrow, but judge denied that suggestion and declared a mistrial.
Dugue claimed that a retrial would constitute double jeopardy, but the court disagreed.
A three-judge panel of the 5th Circuit affirmed last week, finding that the prosecutor's conduct had been unprofessional but not intentional.
"The prosecutor displayed overreaching and unprofessional conduct in ignoring the district court's two orders not to discuss the Robair case," according to the unsigned decision. "Her excuse, that the judge's head nod in response to her raised eyebrow implied permission to introduce previously excluded evidence, is certainly unacceptable."
"Trial counsel would be wise to heed the judge's advice:
'Don't try to read my eyebrows, come up here and ask me. We have had how many bench conferences in this case and in the other case? Don't you realize to come up here and have a bench conference when you're about to approach something that is the subject of my ruling?'
"The prosecutor's improper behavior offers a reminder that attorneys should hew closely to the orders excluding evidence and seek clear permission when they are approaching those topics at a later point in trial. ...
"Dugue's failure to cite any concrete evidence of the government's clear intent to goad him into seeking a mistrial, coupled with the district court's factual finding that the government's improper actions were not intended to create a mistrial, provide insufficient basis for this court to find clear error."
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