NEW ORLEANS (AP) — Five former New Orleans police officers deserve a new trial on charges connected to the deadly shootings of unarmed people amid the chaos that followed Hurricane Katrina, a federal appeals court ruled Tuesday, upholding a judge's 2013 decision.
Four of the men are charged in the shootings at the Danziger Bridge, which happened a week after Hurricane Katrina hit the city and levee failures led to catastrophic flooding. A fifth ex-cop is charged in the cover-up, which fell apart as federal investigators bore down.
All five were convicted in 2011. But U.S. District Judge Kurt Engelhardt ruled in 2013 that they deserved a new trial because prosecutors' anonymous online postings tainted the judicial process. A three-judge panel of the 5th U.S. Circuit Court of Appeals upheld that decision.
The 2-1 ruling upholds a new trial for two former sergeants, Robert Gisevius and Kenneth Bowen, and former officers Anthony Villavaso and Robert Faulcon, all facing charges in the shooting and cover-up.
Former Sgt. Arthur "Archie" Kaufman also was convicted in the cover-up and will get a new trial.
Prosecutors had argued that there was no evidence the verdict was tainted. The 5th Circuit majority strongly rejected their arguments.
"The reasons for granting a new trial are novel and extraordinary," Judge Edith Jones wrote on behalf of herself and Judge Edith Clement. "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.'"
Jones went on to say that the Justice Department "inadequately investigated and substantially delayed the ferreting out" of information about the postings. She was also critical of the Justice Department's investigation that failed to determine who leaked earlier information about a witness's pending guilty plea to The Associated Press and The Times-Picayune.
Judge Edward Prado dissented. He decried the actions of the prosecutors but said a new trial could be granted only if there were new evidence that would probably result in acquittal.
Messages left for attorneys on each side of the case were not immediately returned. The government could seek a rehearing before the full 15-member appeals court.
The online posting scandal led to the resignations of two assistant U.S. attorneys, a reprimand for a Justice Department lawyer and the eventual resignation of New Orleans-based U.S. Attorney Jim Letten. Letten was not implicated in the postings but two of the posters were on his staff.
Tuesday's opinion came less than two weeks before the 10th anniversary of the storm, which struck the Gulf Coast on Aug. 29, 2005, causing widespread death and destruction in Mississippi and southeast Louisiana. About 80 percent of New Orleans flooded.
The Danziger shootings happened on the following Sept. 4. 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.
Faulcon was sentenced to 65 years in prison; Bowen and Gisevius, 40 years; Villavaso, 38; and Kaufman, six. Kaufman was released on bond in 2013. The others remain jailed.