Post-Katrina Legal Storm Was Trump Nominee Engelhardt’s ‘Odyssey’

By Patrick L. Gregory

Senators focused on federal District Judge Kurt Engelhardt’s handling of a racially charged trial of police officers at his confirmation hearing Jan. 10.

It’s a case that stands out during Engelhardt’s 16 years on the bench as the Senate Judiciary Committee considers his appointment by President Donald Trump to the U.S. Court of Appeals for the Fifth Circuit. Engelhardt himself described it as a “legal odyssey unlike any other.”

The trial involved New Orleans police officers accused of shooting six unarmed black men, two fatally, in the havoc-filled aftermath of Hurricane Katrina.

What followed was a courtroom epic marked by guilty verdicts at trial, misconduct by prosecutors, admonishments from the bench, and an uproar punctuated by a critical Washington Post editorial directed at Engelhardt. The case culminated in plea bargains years later that led to shorter sentences for the officers involved.

Despite fallout that continued to make headlines into 2016, the Fifth Circuit ultimately praised his “thorough” and “fact-driven” handling of the notorious Danziger Bridge case.

Democratic senators at Engelhardt’s hearing questioned his decision to overturn the officers’ convictions based on prosecutorial misconduct, without conducting an evidentiary hearing to determine whether it had actually affected the outcome.

A Trump Choice

A New Orleans native, the 57 year-old chief judge in the Eastern District of Louisiana was nominated to the Fifth Circuit by Trump on Sept. 28.

Before joining the bench in late 2001, he focused on commercial litigation and transactional work at two Louisiana-based firms, first at Little & Metzger and then at Hailey, McNamara, Hall, Larmann & Papale LLP, where he became a partner.

Engelhardt is a member of the Federalist Society, a conservative organization that promotes federalism and the separation of federal and state powers.

The conservative Family Research Council listed Engelhardt with nominees about whom conservatives “couldn’t be happier.”

He received a “well-qualified” rating from the ABA, which has rated four Trump nominees as unqualified.

So far, the Senate has confirmed 12 Trump-nominated circuit court judges. This pace far exceeds his recent predecessors, and reflects one of his key campaign promises. Judicial confirmations also are a signature accomplishment of Senate Majority Leader Mitch McConnell in the eyes of conservatives.

Engelhardt’s rise to the appeals bench won’t bring a significant change to the balance of power on the Fifth Circuit, where a majority of judges have been nominated by a Republican president.

There have been numerous vacancies on the courts of appeals for several years due to the refusal of Republican senators to confirm Barack Obama’s nominees.

Two of Trump’s other nominees to the Fifth Circuit, former Texas Supreme Court Justice Don Willett and former appellate litigator James Ho, were confirmed last year.

A third nominee to the Fifth Circuit, former Louisiana Solicitor General Kyle Duncan, was recently renominated along with Engelhardt and 19 other nominees whom the Senate sent back as last year’s session was ending.

Engelhardt declined to comment for this article.

Storm Ravaged, Notorious Case

The Danziger Bridge “odyssey” began shortly after August 2005, when Katrina’s ferocious winds and flooding devastated New Orleans.

On Sept. 4, five days after the storm struck, police arrived at the bridge, which spans the city’s industrial canal and is located near the hurricane-ravaged Ninth Ward.

Responding to reports of shots fired, which was later proved false, officers shot six unarmed black civilians. Two were killed.

Five officers were convicted at trial in 2011 on a range of charges. Engelhardt described the “solemn task” he faced in sentencing them in United States v. Bowen .

One of those killed, Ronald Madison, was “a person of special needs who stayed in New Orleans with his brother in order to take care of the family dogs” after the storm, he said.

For “virtually every defendant I have ever sentenced,” Engelhardt couldn’t “help but think that one day some years ago he or she was a newborn brought home from the hospital by proud parents feeling unbounded happiness.”

The judge imposed sentences ranging from 38 to 65 years.

Sentencing Disparities

He railed against prosecutors for forcing him to give some of them disproportionately long mandatory minimum sentences, while others were able to cut what he viewed as easy plea deals.

Engelhardt was required to stack mandatory minimum sentences on the officers under 18 U.S.C. §924(c), which calls for penalties for carrying a firearm during a crime of violence, he said. He called the stacking “draconian.”

But prosecutors sought a sentence of four years for one officer who pleaded guilty and avoided a stacked sentence.

That officer fired “his gun at an innocent, unarmed, fleeing 14-year-old” and participated “in a conspiracy to cover it up,” the judge said.

Criminal activity shouldn’t “be merely clay in the hands of a clever prosecutor bent on charging only” what the federal government “wants to charge regardless of the crime actually committed,” he said.

Social Media ‘Carnival’

After sentencing, the court discovered online misconduct by Justice Department attorneys that prompted him to vacate the convictions and grant a new trial in 2013.

Prosecutors “acting with anonymity used social media to circumvent ethical obligations, professional responsibilities, and even to commit violations of the Code of Federal Regulations,” he said.

At least “two high-ranking members” of the U.S. attorney’s office for the Eastern District of Louisiana were involved, creating an “online 21st century carnival atmosphere,” he said.

They published “inflammatory invectives, accusatory screeds, and vitriolic condemnations” related to the case through online comments sections of news websites, “both directly and by the express encouragement of others to do the same,” he said.

The comments included a statement that the accused officers were murderers and that none of them should “have ever been given a badge.”

A trial attorney in the criminal section of the DOJ’s civil rights division also posted inappropriate comments related to the case online, Engelhardt said.

Senators Question

At the confirmation hearing, Senators Amy Klobuchar (D-Minn.) and Christopher Coons (D-Del.) asked Engelhardt why he overturned the convictions without finding that jurors were actually affected by the misconduct.

The social media misconduct occurred over several years while the case was being investigated, “before there was even an indictment,” Engelhardt said.

Interviewing jurors, “seven of whom we know viewed the” main website involved, would therefore have been “like asking someone what they had for breakfast three and a half years ago,” he said.

Further, Engelhardt relied on U.S. Supreme Court precedent suggesting that a finding of actual prejudice wasn’t necessary in cases of “pervasive prosecutorial misconduct,” he said.

Criticism, Vindication

At the time Engelhardt overturned the convictions, a Washington Post editorial sharply criticized the judge for granting the officers a new trial.

The officers’ convictions were a victory “for justice in a city where it often has been elusive and subverted,” it said.

Though the officers’ online comments were “egregious” and “unjustifiable” abuses of authority, there was no evidence that jury members saw any of them, it said.

The Fifth Circuit disagreed in 2015 and affirmed the decision, in United States v. Bowen.

The court rejected the federal government’s request to remove Engelhardt from the case.

Engelhardt “conscientiously” responded to the misconduct’s discovery as it unfolded, the court said.

Neither “his use of colorful language” nor his expression of “candid views about the government’s highly disparate charges” warranted his removal, the court said.

“Judge Engelhardt’s style is far outweighed by this thorough, fact-driven approach,” the court said.

More than a decade after the shooting, the officers reached plea deals in 2016 that shortened their sentences by decades.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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