Danziger Bridge convicted ex-cops seek release

11th November 2013   ·   0 Comments

Four of the five former New Orleans police officers who were granted a new trial in connection with the infamous Danziger Bridge shootings on the eastern New Orleans bridge less than a week after Hurricane Katrina are trying to convince a federal judge to release them from prison.

Former NOPD Sgt. Kenneth Bowen on Tuesday asked U.S. District Judge Kurt Engelhardt to release him pending prosecutors’ appeal of the judge’s decision in September to order a new trial.

Bowen’s attorney, Robin E. Schulberg, told The Associated Press that her client is willing to submit to whatever conditions of release the court would choose to impose. Prosecutors didn’t immediately respond to Bowen’s request.

On Thursday morning, former NOPD Sgt. Robert Gisevius also filled papers in federal court seeking release from prison.

Gisevius’ attorney, Christopher Aberle, said that his client’s health issues and ties to New Orleans should be considered in making a decision about his release until he is retried.

“With respect to the flight risk element, Mr. Gisevius adds that he has longstanding ties to the community,” Aberle wrote. “Except for attending college at LSU and the University of Alabama, and working briefly in Washington D.C. on the staff of former U.S. Senator John Breaux, Mr. Gisevius has spent his entire life in the City of New Orleans. He has several children here, including a daughter who was born seven days after he turned himself into the FBI.”

Also filing court papers seeking their release from prison last week were Robert Faulcon and Anthony Villavaso.

Faulcon’s attorney, Lindsay Larson, said that her client is not a flight risk and questioned the reliability and soundness of the testimony that led to Faulcon’s conviction.

“Defendants will introduce evidence of the lies of the corroborating witnesses and the ‘grotesque prosecutorial misconduct’ at any second trial of this matter which would almost certainly change the complexion of the case and the way the jury looks at the government’s evidence,” Larson wrote. “Given evidence of the ‘grotesque prosecutorial misconduct’ and the lies of the corroborating government witnesses, a conviction at a second trial is not a foregone conclusion.”

Judge Engelhardt has not yet issued a ruling on any of last week’s motions.

It is not yet known whether the DOJ will issue challenges to those motions for release.

The Danziger Bridge shootings took place on September 4, 2005 and resulted in the deaths of two unarmed civilians and the wounding of four others. The two civilians killed were 17-year-old James Brissette and 40-year-old Ronald Madison, a mentally disabled man. Former NOPD Sgt. Kenneth Bowen, former Sgt. Robert Gisevius, former Officer Robert Faulcon and former Officer Anthony Villavaso were tried and convicted of federal civil rights charges stemming from the shootings and an attempt to cover up the deadly incident.

A fifth former NOPD officer, Sgt. Arthur Kaufman, was convicted of charges that he orchestrated the cover-up. Kaufman, who wasn’t charged in the shootings themselves, was serving a six-year prison sentence when Engelhardt agreed last month to free him on bond pending a new trial that hasn’t been scheduled yet.

Five other officers — Michael Lohman, Jeffery Lehrmann, Michael Hunter, Robert Barrios and Ignatis Hill — pleaded guilty on a variety of federal charges and agreed to cooperate with the U.S. Department of Justice as it continued its probe of the 2005 incident.

Bowen, who was sentenced to 40 years in prison, and the other three officers convicted at trial have remained in custody since they surrendered to federal authorities following their 2010 indictment.

Engelhardt cited allegations of “grotesque” prosecutorial misconduct in his decision to throw out their convictions. The Justice De­partment has appealed his ruling.

Schulberg said that her client’s prolonged detention is unconstitutional under the circumstances.

On October 31, lawyers for the five former NOPD officers raised questions about when a federal prosecutor learned of a colleague’s anonymous online postings, The Associated Press reported.

In his September ruling, Judge Engelhardt said postings by Karla Dobinski were among the reasons he granted a new trial to the five former NOPD officers..

Defense lawyers asked Judge Engelhardt for an opportunity to question prosecutor Bobbi Bernstein about whether she knew about Dobinski’s posts before they were made known to the court on May 15.

Their motion says Bernstein should be disqualified from the case if she knew about the postings and failed to reveal that to the court.

“The Department believes the jury verdict in the case was fair and accurate and is appealing the court’s order granting a new trial,” the U.S. Department of Justice told The Associated Press said in a prepared statement, “The government will respond to allegations in the appropriate forum at the appropriate time.”

Former U.S. Attorney Jim Letten resigned in December 2012 after two of his top prosecutors — Sal Perricone and Jan Mann — acknowledged they had posted anonymous comments on nola.com about several active cases being handled by the U.S. Attorney’s Office for the Eastern District of Louisiana, including the Danziger Bridge investigation.

Dobinski’s postings came to light later and, according to the defense lawyers, were noted in a report by an attorney appointed to investigate the matter. The defense lawyers said Bernstein, the Deputy Chief of the Criminal Section of the Civil Rights Division, has a long work history with Dobinski and “reviewed Special Attorney John Horn’s draft reports, which contained references to Dobinski as early as January 2013.”

Those are among factors that raise questions about Bernstein’s knowledge of the online postings, the defense said.

After a federal jury convicted the five former NOPD officers in 2011, their attorneys argued that federal prosecutors’ online comments and leaks to news organizations were part of a “secret public relations campaign” that deprived their clients of a fair trial.

During a hearing in June 2012, Engelhardt said it appeared federal prosecutors didn’t conduct a “full-blown investigation” after The Associated Press and The Times-Picayune published articles about former New Orleans Police Lt. Michael Lohman’s anticipated guilty plea while his case was under seal. In December 2012, the Justice Department appointed Horn to investigate the leaks and ensure compliance with Engelhardt’s order.

In August, The AP and Times-Picayune urged Engelhardt to unseal all of the court documents related to the Justice Depart­ment’s probe of the prosecutorial misconduct allegations.

Engelhardt unsealed more than 400 pages on Friday, but he ruled that other records can’t be publicly released yet due to a “compelling interest of confidentiality.”

The Associated Press reported that one of the unsealed documents is a report that Mann submitted to Engelhardt in June 2012, in which she outlines prosecutors’ initial attempts to identify the source of leaks to the media.

Mann said Bernstein had sent her an email on the day that Lohman signed his plea agreement in which she expressed concern for his safety if word of his cooperation got out.

“Are there special precautions we can take to make sure things stay quiet until we’re ready to take the plea?” Bernstein wrote. “One thing I would suggest … is that none of us forward this email to anyone, even highly trusted colleagues, and that we disseminate the information as-needed, in-person.”

After initially signed the federally mandated NOPD consent decree designed to bring major reforms to the troubled police department, New Orleans Mayor Mitch Landrieu to have it tossed out, saying, among other things, that the NOPD consent-degree negotiation process was tainted by the involvement of former federal prosecutors Sal Perricone and Jan Mann involvement while posting online comments about the Danziger Bridge case,

The Fifth U.S. Circuit Court of Appeals rejected that argument.

Grassroots and civil rights leaders pointed out that a similar move was made when Judge Raymond Bigelow threw out indictments filed by then-Orleans Parish D.A. Eddie Jordan because of prosecutorial misconduct. Several leaders and activists argued that the prosecutorial misconduct that took place in the U.S. Attorney’s Office may have simply been a way to provide the convicted officers with an escape route after the U.S. Attorney’s Office was pressured to investigate and indict the officers by Attorney General Eric Holder.

After learning of Judge Engelhardt’s decision to grant the five officers a new trial, the family of Ronald Madison expressed its displeasure with the judge’s decision to retry the officers and vowed to continue to fight for justice in the case.

“We are extremely disappointed in Judge Engelhardt’s decision granting a new trial in the Danziger Criminal Civil Rights case,” Dr. Romell Madison said. “It has been over eight years since our brother Ronald was shot and killed on the Danziger Bridge and our brother Lance was falsely arrested and framed on eight counts of murder. This decision reopens this terrible wound not only for our family, but our entire community. From the beginning of this ordeal our family has sought justice, not just for ourselves but for all the victims and families. We urge the Department of Justice to appeal Judge Engelhardt’s decision. Our fight for justice continues.”

After the five officers were convicted two years ago, Sherrell Johnson, the mother of James Brissette, spoke to reporters outside of the federal courthouse. “I have been robbed a great deal because he was only 17,” a still-grieving Sherrell Johnson said. “There is nothing for James — nothing. No prom, no first car, no baby, nothing. My child will never have nothing. He will forever more be an urn of ashes.”

Johnson told The Associated Press in a telephone interview that she was not pleased with Judge Engelhardt’s decision to grant the five officers a new trial. “Is my son going to get a new lease on life?” she asked. “Is he coming back? What about the mental anguish that these people put us through? It is not fair to make us sit through that again.”

“Judge Engelhardt’s order should be a wake-up call for everyone in New Orleans,” W.C. Johnson, a member of Community United for Change and host of local cable-access show “OurStory,” told The Louisiana Weekly in a recent interview. “Everyone should pay. Since a federal judge has determined that Jim Letten and his staff have broken the law, then Jim and his staff should be arraigned and prosecuted for the laws they have broken and forced to serve time for these transgressions. The people of New Orleans need to be calling for charges to be brought against Jim Letten, Sal Perricone, Jan Mann and Karla Dobinski for starters. If the U.S. justice system is to survive as the greatest legal system in the world — America’s claim, not mine — then these people must be brought to justice.”

This article originally published in the November 11, 2013 print edition of The Louisiana Weekly newspaper.