NEW ORLEANS — Government prosecutors faced stern questions from openly skeptical appeals court judges who were asked Wednesday to reinstate convictions of five former New Orleans police officers in connection with deadly shootings amid the chaos that followed Hurricane Katrina in 2005.
The five were convicted in 2011. But a federal judge ruled in 2013 that they deserved a new trial because prosecutors' anonymous online postings tainted the judicial process.
Justice Department attorney Elizabeth Collery told a three-judge panel of the 5th U.S. Circuit Court of Appeals that there was no evidence the jury verdict was affected.
But the appeals judges — Edith Jones, Edith Brown Clement and Edward Prado — each questioned that view at different times during the hourlong hearing. Clement noted apparent evasions on the part of prosecutors under scrutiny for misconduct and said U.S. District Judge Kurt Engelhardt was trying to protect the integrity of the jury verdict when he threw out the convictions.
"This is a matter of discretion for the district court," Clement said. "He was there."
Prado wondered aloud whether allowing the guilty verdicts to stand would "send a signal" that prosecutorial misconduct might be tolerated in some circumstances. Jones suggested that the online postings might have affected the testimony of potential witnesses.
The panel gave no indication when it would rule. The arguments took place in a full courtroom with family members and attorneys of police, as well as relatives of some of the shooting victims, in attendance.
Four of the men are charged in the shootings at the Danziger Bridge, which happened a week after Hurricane Katrina hit the city on Aug. 29, 2005, leading to levee failures and catastrophic flooding. They remain jailed. A fifth ex-cop is charged in the cover-up that fell apart as federal investigators bore down. He is not currently jailed.
The appeals court arguments came months ahead of the 10th anniversary of Katrina — and at a time when police officers' use of force against the unarmed is under high scrutiny after the deaths of Michael Brown in Ferguson, Missouri; Walter Scott in North Charleston, South Carolina; Eric Garner in New York City and Freddie Gray in Baltimore.
As in those incidents, the victims in the Danziger shootings were black. However, some of the officers implicated in the shootings or cover-up, including two among the five convicted at trial, are black.
The case dates back to Sep. 4, 2005, a week after the hurricane struck. The city remained badly flooded, with utilities out everywhere and the police force under strain. Police shot and killed two unarmed people and wounded four others at the bridge.
Police said at the time that the officers were responding to a report of other officers down when they came under fire. Police also said one of the men, Ronald Madison, was reaching for a gun. Madison, a 40-year-old mentally disabled man, and James Brissette, 19, were killed.
Convicted in the shootings and cover-up were two former sergeants, Robert Gisevius and Kenneth Bowen, and former officers Anthony Villavaso and Robert Faulcon.
Former Sgt. Arthur "Archie" Kaufman also was convicted in the cover-up.
Faulcon was sentenced to 65 years in prison; Bowen and Gisevius, 40 years; Villavaso, 38; Kaufman, six.
Five former officers cooperated with a federal investigation and pleaded guilty to engaging in a cover-up designed to make the shootings appear justified.
The convictions added to a list of scandals that had plagued the Police Department over the years, including convictions of officers for various charges of corruption and abuse of force.
But a scandal at the U.S. Attorney's Office undid the convictions.
Attorneys for a prominent businessman under federal scrutiny exposed then-Assistant U.S. Attorney Sal Perricone as the writer of anonymous posts on a newspaper website. Assistant U.S. Attorney Jan Mann and the Justice Department's Karla Dobinski later were implicated as well. Popular U.S. Attorney Jim Letten was never implicated, but he eventually stepped down amid the furor.
Eventually, U.S. District Judge Kurt Engelhardt ordered the new trial, saying posts by Perricone and others contributed to a "carnival atmosphere" that tainted the case.
Kaufman's attorney, Billy Gibbens, told the appeals court that Perricone's and Mann's actions were part of an effort "to shape public discourse about cases their office handled."
Collery said there were numerous alternative means of holding prosecutors accountable without overturning the verdicts.
She noted that Perricone and Jan Mann lost their jobs and can no longer practice law in the New Orleans-based federal court district. Dobinski, also was subject to discipline which, Collery said, remains confidential.
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