Two Wrongs Make it Worse in Cops' Retrial

Bruce Green in The National Law Journal, September 30, 2013

Media Source

By Bruce Green

Federal judges do not lightly overturn convictions to punish prosecutorial misconduct. But especially unusual was U.S. District Judge Kurt Engelhardt's September 17 order granting five former New Orleans police officers a new trial after sentencing them for their roles in the Danziger Bridge shootings and cover-up following Hurricane Katrina.

Any judge, even if he or she wants to teach federal prosecutors a lesson, would hesitate in a case of such public significance, in which a retrial would distress victims, burden witnesses, prolong proceedings and undermine public confidence in the fairness and integrity of criminal justice.

Perhaps most extraordinary, the judge ruled without a public hearing. Engelhardt decided that he had learned enough from his own private inquiry that the misconduct of the Department of Justice prosecutors — who were anonymously posting inflammatory comments online about the defendant officers while the case was pending — would probably appear even worse as more facts emerged, and that further investigation should be left to disciplinary authorities.

Defense lawyers often complain that judges habitually give prosecutors the benefit of the doubt, but Engelhardt's 129-page order suggests that, in the Internet age, as word of prosecutorial misconduct spreads more widely and patterns seem to emerge, judicial confidence in prosecutors is waning.

If so, the DOJ can blame itself. For decades, it has resisted efforts of courts, disciplinary authorities and bar associations to help oversee prosecutors. The DOJ asks to be trusted to police its own prosecutors without interference by outsiders. After decades of judicial passivity, courts might understandably overreact to a betrayal of trust.

The current DOJ administration, which entered office amid President Barack Obama's promises of transparency, has been no more open than its pred­ecessors to the regulatory efforts of bench and bar. Even after admitting to disclosure violations in the 2008 prosecution of U.S. Senator Ted Stevens (R-Alaska), now deceased, and after similar findings of wrongdoing in other federal cases, the DOJ still resists reform. It recently opposed disciplinary proceedings against federal prosecutors in Massachusetts and Wash­ington for violating their disclosure obligations. In doing so, the DOJ asserted that existing ethics rules requiring disclosure of favorable evidence do not mean what they say and can essentially be ignored.

RESISTANCE TO ACCOUNTABILITY

For years, sadly, the DOJ has opposed ethics rules designed to guide prosecutors who discover that they probably convicted an innocent person. The DOJ also has resisted the bar's call to account more publicly for the work arising from its internal disciplinary arm, the Office of Professional Responsibility.

Yet, even for those of us who believe that federal courts should step into the breach by invoking their supervisory authority more freely, Engelhardt's decision in the New Orleans case is a bitter pill.

The court's post-trial inquiry began when the defense complained that a high-ranking federal prosecutor in New Orleans had secretly posted inflammatory comments about the New Orleans police on a Web page affiliated with a local newspaper. The court, initially doubting it was part of a concerted government media campaign, called on the U.S. attorney's office to investigate. The government attorney charged with responding suggested that other insiders' posts must have come from outside the prosecutors' office — until, weeks later, she confessed that she, too, had blogged in connection with the case. The DOJ then assigned prosecutors from outside Louisiana to investigate anew. They discovered that a prosecutor from Main Justice was yet another blogger and that she had egged on other pro-prosecution bloggers, who appeared to be trial observers.

Whether even more prosecutors secretly blogged about the case the DOJ did not determine, but claimed it could no longer access the government's computer data and was unwilling to seek to compel relevant data from the news media.

The court concluded that at least three prosecutors (none of whom were on the trial team) either independently or concertedly violated federal regulations, federal court rules, disciplinary rules and internal DOJ policy restricting federal prosecutors from making public statements outside the courtroom about the government's pending criminal cases.

In ordering a new trial, Engelhardt reached all the way back to the U.S. Supreme Court's 1966 decision in Sheppard v. Maxwell for a precedent in which a convicted defendant was given a new trial because public officials helped orchestrate prejudicial pretrial publicity. However, the prosecutors' blogs in the New Orleans case do not seem comparable: They had a peripheral role in media coverage and, being anonymous, lacked the weight of government authority.

No doubt, it is not just illegal but reprehensible for a government lawyer to try a criminal case in the press and throw dirt on presumptively innocent individuals. The court was right to initiate disciplinary action against prosecutors who blogged, and their superiors might also merit discipline if they negligently supervised. But there was no showing that the egregious misconduct affected the jurors, which would justify a new trial.

One cannot entirely blame the court for wanting to end its long inquiry, rule emphatically and move on, particularly given its belief that a hearing would paint an even darker picture. But a retrial — one that is sure to be emotionally charged and one that is not clearly supported by precedent — comes at too high a cost.

Bruce Green, a professor at Fordham University School of Law, is a former federal prosecutor in New York's Southern District.