Opinion here. News story here. Excerpt from opinion:
In the anarchy following Hurricane Katrina, a group of heavily armed New Orleans police officers were dispatched to the Danziger Bridge in response to an emergency call reporting shots being fired at police. There, amid chaos, they shot and killed two unarmed men, one of them developmentally disabled, and wounded four other unarmed civilians. The police then allegedly orchestrated a cover-up to deny what happened. Some of those involved were tried by the state, but a mistrial was ordered. The federal government took over the prosecution and has also bungled it. Five former officers have been convicted of serious crimes and received lengthy sentences. Yet they appear in this court as Appellees, and the federal government as the Appellant, because the district court granted a new trial.
The reasons for granting a new trial are novel and extraordinary. 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. We conclude that the grant of a new trial was not an abuse of the district court’s discretion.