On Tuesday, a divided Fifth Circuit panel (in United States v. Bowen) affirmed a district-court ruling granting a new trial to New Orleans police officers who had been convicted of serious crimes for their roles in the post-Hurricane Katrina shootings at Danziger Bridge and in an ensuing alleged cover-up. In her majority opinion, Judge Edith H. Jones summarizes the “novel and extraordinary” reasons justifying the new trial:
No less than three high-ranking federal prosecutors are known to have been posting online, anonymous comments to newspaper articles about the case throughout its duration. The government makes no attempt to justify the prosecutors’ ethical lapses, which the court described as having created an “online 21st century carnival atmosphere.” Not only that, but the government inadequately investigated and substantially delayed the ferreting out of information about its in-house contributors to the anonymous postings. The district court also found that cooperating defendants called to testify by the government lied, an FBI agent overstepped, defense witnesses were intimidated from testifying, and inexplicably gross sentencing disparities resulted from the government’s plea bargains and charging practices.
Like the district court, we are well aware of our duty normally to affirm convictions that are tainted only by harmless error. In this extraordinary case, however, harmless error cannot even be evaluated because the full consequences of the federal prosecutors’ misconduct remain uncertain after less-than-definitive DOJ internal investigations. The trial, in any event, was permeated by the cumulative effect of the additional irregularities found by the district court.
The three federal prosecutors who are known to have committed these gross ethical lapses were Sal Perricone, Jan Mann, and Karla Dobinski. Perricone and Mann were in the local U.S. Attorney’s office. Dobinski was a longtime Civil Rights Division attorney whose “responsibility in the course of the prosecution was”—believe it or not—“to protect indicted police officers’ civil rights.” Per the court:
Most pernicious, these attorneys’ online comments knowingly contributed to the mob mentality potentially inherent in instantaneous, unbridled, passionate online discourse. These prosecutors created an air of bullying against the defendants whose rights they, especially Dobinski, were sworn to respect.
While Perricone and Mann have resigned their positions, the majority finds it remarkable that “Dobinski remains in federal employment with only a bare reproof for her online commenting.” Further, the “misdeeds” of these three prosecutors “are compounded by the government’s [i.e., the Justice Department’s] insouciant investigation, which leaves open only three inferences concerning this prosecutorial breakdown: the government is not serious about controlling extracurricular, employment-related online commenting by its officials; the government feared what it might uncover by a thorough and timely investigation; or the government’s investigation was incompetent.”
The dissenting judge (Edward C. Prado) expressly “agree[d]” with the majority that the actions of the government in this case demean the integrity of the judiciary and merit the most severe sanctions,” but did not believe that a new trial was warranted.
Christian Adams has more on the ruling—and on Dobinski’s soft treatment by DOJ—here, and asks whether Attorney General Loretta Lynch will now take serious action against Dobinski.