Criminal Justice

Anonymous 'cyberbullying' by prosecutors deprived cops of fair trial, 5th Circuit says

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Five New Orleans police officers convicted in connection with the shooting of unarmed civilians during the chaos after Hurricane Katrina deserve a new trial because of online “cyberbullying” by government lawyers, a federal appeals court has ruled.

The 2-1 decision (PDF) by the New Orleans-based 5th U.S. Circuit Court of Appeals upheld a federal judge’s decision to grant a new trial to the officers, convicted in connection with the shootings on Danziger Bridge that killed two men and wounded four others. The New Orleans Times Picayune and the New Orleans Advocate have stories, while the Legal Profession Blog and Legal Ethics Forum have excerpts from the opinion, written by Judge Edith Jones.

Jones said three government lawyers posted the anonymous online comments on the website of the New Orleans Times Picayune, including Jan Mann, a federal prosecutor originally appointed to investigate. The other commenters were revealed as Assistant U.S. Attorrney Sal Perricone and Karla Dobinski, a lawyer in the Justice Department’s Civil Rights Division.

The prosecutors “knowingly contributed to the mob mentality potentially inherent in instantaneous, unbridled, passionate online discourse.” Jones wrote. “These prosecutors created an air of bullying against the defendants whose rights they, especially Dobinski, were sworn to respect. That they were several among dozens of commenters, some of whom may have disagreed with their views, does not dissipate the effect of this online cyberbullying. Just as a mob protesting outside the courthouse has the potential to intimidate parties and witnesses, so do streams of adverse online comments. …

“The online anonymous postings, whether the product of lone wolf commenters or an informal propaganda campaign, gave the prosecution a tool for public castigation of the defendants that it could not have used against them otherwise, and in so doing deprived them of a fair trial.”

Jones also pointed to other problems noted by the trial judge, who “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.”

Initial sentences for the four officers convicted in the civil rights prosecution ranged from 38 years to 68 years in prison. A fifth officer convicted in a cover-up was sentenced to six years in prison.

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