United States v. Bowen

799 F.3d 336 (2015)

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Nature of the Case

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Facts

Kenneth Bowen, Robert Gisevius, Robert Faulcon, Anthony Villavaso, and Arthur 'Archie' Kaufman were indicted for their roles in the Danziger Bridge shootings and ensuing alleged cover-up. Ds were charged with civil rights, firearms, conspiracy, and obstruction of justice offenses; only Faulcon was indicted for actually making a fatal shot. Several other former police officers indicted at the same time pled guilty, and most testified at trial for P. Local news coverage was punctuated by press leaks 'from unnamed sources' that tended to favor P. Lehrmann (D), signed a confidential plea agreement, and a magistrate judge sealed the Information against him. One day before Lehrmann was scheduled to enter the plea in open court, the Associated Press and the New Orleans Times-Picayune published articles announcing that fact. Ds were found guilty on nearly all counts. During the time between the verdict and sentencing, events reflecting shocking breaches of prosecutorial ethics were revealed and then compounded by further breaches. A federal investigation discovered that a high-ranking Assistant United States Attorney, Senior Trial Counsel Sal Perricone, had been posting comments to Nola.com under multiple assumed names. Perricone's comments frequently involved other matters pending in the United States Attorney's Office (USAO) and were inflammatory, highly opinionated, and pro-prosecution. Perricone's comments were linked to the Danziger Bridge prosecutions and were shown to have begun well before the indictments and continued through trial. He castigated Ds and their lawyers and repeatedly chastised the NOPD as a fish 'rotten from the head down.' Perricone resigned as an AUSA, and then-United States Attorney Jim Letten issued a press release attempting to confine any online misconduct to Perricone alone. Ds moved for a new trial based on the comments and repeated press leaks that inflamed public opinion against them. Ds charged that the government induced coerced guilty pleas and procured false testimony to secure convictions at any cost. P immediately began damage control and came up with the false narrative that it was just one bad apple. Perricone raised further questions about the possible involvement of the local FBI in press leaks and about online monikers that he affirmed he did not use. The investigator of the incident, Jan Mann, and whose husband Jim, another AUSA, was Perricone's closest professional friend, and their offices were next door to each other. A lawsuit was filed alleging that Jan Mann had been commenting, as 'eweman.' About forty inappropriate comments under this moniker had appeared on the Nola.com website from November 2011 until Perricone was exposed in March 2012. The suit alleged that 'approximately 63 percent of the posts by [First AUSA Mann] appear with comments posted by Perricone, and they frequently reply to express consistency with the points of view expressed by the other.' All that happened were resignations and retirements with full benefits. It was clear that P purposefully conducted a half-assed investigation on the matter. The district court gave up and simply ordered a new trial. P appealed.