Judge Reverses Murder Conviction of Katrina's Danziger Bridge Police Officers

By Juliet Linderman, The Times-Picayune

18 September 13

or many metro area residents, the day when former police officers were convicted for their roles in gunning down unarmed people on the Danziger Bridge after Hurricane Katrina marked a cathartic moment.

On Tuesday, however, a federal judge toppled those hard-won convictions, not citing faulty evidence, but because of the "grotesque" conduct of prosecutors who never even talked to the jury.

In an order upending one of the region's most important civil rights cases in years, U.S. District Judge Kurt Engelhardt granted a new trial for five former New Orleans Police Department officers convicted in the Danziger Bridge shooting and the subsequent cover-up.

In a 129-page order that blasted former prosecutors in then-U.S. Attorney Jim Letten's office, Engelhardt pointed to "unprecedented events and acts" that "has taken the court on a legal odyssey unlike any other."

The order granted a new trial for former police officers Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso as well as Arthur Kaufman, who was convicted of orchestrating the cover-up after being assigned to investigate the shooting.

All were tried and convicted of civil rights violations for their roles in the Sept. 4, 2005, shooting, following a weeks-long trial in 2011 that included emotional testimony of a man who watched his brother lay dying on the U.S. 90 bridge where people had sought shelter days after the storm.

Attorneys for the officers celebrated the ruling Tuesday as a step toward justice.

"The government was determined to get convictions in this case and did anything and everything ethical or not in their attempt to reach their desired verdict," said Villavaso's attorney, Roger Kitchens, echoing comments from other defense lawyers.

The Department of Justice in a statement said: "We are disappointed with the court's ruling. We are reviewing the decision and considering our options."

Relatives of Ronald Madison, one of two men killed at the bridge, were dismayed.

"This decision re-opens this terrible wound not only for our family but our entire community," said Madison's brother, Romell Madison, in a statement. "We urge the Department of Justice to appeal Judge Engelhardt's decision. Our fight for justice continues."

The former officers sought a new trial last year, citing among other examples the revelations that prosecutors in Letten's office had authored disparaging comments on NOLA.com about defendants in several criminal cases, including the Danziger case.

Those revelations, and other instances of alleged misconduct, prompted Engelhardt in late 2012 to call for a criminal probe of former prosecutors Sal Perricone and Jan Mann. Tuesday's order, however, revealed new instances of misconduct.

Engelhardt wrote that Karla Dobinski, a veteran trial attorney in the Justice Department's Civil Rights Division in Washington, D.C., had also posted online comments during the trial. The order also cited testimony by Mann that she told then-U.S. Attorney Jim Letten that she had posted online comments, shortly after the scandal over Perricone's posts began in March 2012.

That's the first indication that Letten may have known about the misconduct months earlier that he has publicly acknowledged. Letten did not return calls seeking comment Tuesday.

"The case started as one featuring allegations of brazen abuse of authority, violation of the law, and corruption of the criminal justice system," Engelhardt wrote in his decision alluding to the Danziger prosecution. "Unfortunately, though the focus has switched from the accused to the accusors, it has continued to be about those very issues. After much reflection, the court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end."

Engelhardt also acknowledged the weight of his ruling and the importance of the Danziger case. The trial in 2011 capped the prosecution of several cases of police misconduct and abuses of power in the wake of Hurricane Katrina. That made the prosecutorial misconduct "all the more astonishing," Engelhardt said.

Storm Survivors Under Siege

The Danziger Bridge shootings illustrated the chaos that took hold of parts of the metro area after Katrina.

On Sept. 4, 2005, days after the Hurricane Katrina, police issued a call reporting that people were shooting at some officers near the Interstate 10 high-rise over the Industrial Canal. Several officers piled into a rental truck and headed to the scene. As they reached the Danziger Bridge, the officers - including Bowen, Gisevius, Faulcon and Villavaso - got out of the truck and began shooting at civilians, according to trial testimony.

Seventeen-year-old James Brissette was killed, and four others -- Jose Holmes, 19; his aunt, Susan Bartholomew, his uncle, Leonard Bartholomew III, and a teenage cousin, Lesha Bartholomew - were wounded. Two brothers, Lance and Ronald Madison, were walking on the bridge, and when they heard the gunfire began to run. The officers chased the brothers down, and injured Ronald, who was later fatally shot in the back as he tried to run away. Lance Madison was arrested and accused of firing at police.

The accusations against Lance Madison were later deemed to be part of a police cover up and dropped.

Seven officers were first indicted in state court in 2008, but federal authorities took the case over after a state judge dropped those initial charges.

In 2010, some of the officers took plea deals, and revealed details of a widespread cover-up that included fabricated witnesses, a planted gun and falsified reports.

At trial in 2011, five officers were convicted of numerous counts of civil rights violations.

Faulcon, who fired a shotgun blast to the back of Ronald Madison, a 40-year-old mentally challenged man, got the stiffest sentence, 65 years in prison. Kaufman, who was involved only in the subsequent cover-up after being tapped to investigate the shooting, was sentenced to six years. Bowen, who opened fire with an AK-47 and Gisevius, who opened fire with an M-4 rifle, were each given 40 years. Villavasso, who fired with an AK-47 was given 38 years.

Their convictions came under fire in May of 2012, when defense attorneys alleged the government "engaged in a secret public relations campaign" designed to poison the reputation of the NOPD in the public eye. They alleged that top prosecutors were posting inflammatory comments about the case under anonymous monikers on NOLA.com.

Their allegations came just months after Perricone was outed as the man behind an electronic trail of vitriolic tirades against subjects of federal probes, including those in the Danziger case. First Assistant U.S. Attorney Mann was later found to also have posted comments on NOLA.com, though she did not post about the Danziger case.

In November of 2012, Engelhardt ordered an investigation into the online commenting scandal and into possible leaks in the Danziger investigation. John Horn, a high-ranking prosecutor in Georgia, was tapped for the job.

Engelhardt's order Tuesday referenced portions of the Horn reports, which unearthed the third anonymous poster from the Justice Department. Dobinski, a veteran member of the Civil Rights division was tasked with ensuring the rights of a police officer - Bowen -- were not violated during the course of the federal investigation as he had given certain testimony in the state case that could not be used against him.

U.S. Justice Department prosecutor Barbara "Bobbi" Bernstein, who was the lead government advocate in the Danziger case, declined comment Tuesday.

Defense attorneys for the defendants hailed the ruling, and expressed shock and disgust at the extent of misdeeds laid out in the order.

"We hope the government does the right thing and decides not appeal the judge's decision, and not to seek a new trial," said Rogers, the attorney for Villavaso. He said he intends to seek his client's release on bond.

Harry Rosenberg, a former U.S. attorney in New Orleans, said a decision to grant a new for five defendants who have already been convicted and sentenced is extremely unusual and is indicative of the seriousness of the misconduct that poisoned the case,

"You never expect a motion granting a new trial in criminal proceeding, because it's so rarely granted," Rosenberg said. "It's rare to see a federal judge grant a new trial after verdicts of guilty and sentencing. It's even rarer to see this kind of criticism of the Department of Justice by a federal judge."

Bennett Gershman, a Pace University professor and an expert on prosecutorial misconduct cases, said the account of misdeeds detailed in the order is "one of the most hard-hitting condemnations of the conduct of the Justice Department and several prosecutors in the Justice Department than I've ever seen," calling the order a "powerful expose of sleaziness, dishonesty and misconduct."

"This case is so unique for so many reasons," Gershman said, "This is heavy-handed coercive conduct."

The judge gave the parties a month to get scheduling issues worked out so a new trial date could be set.