An attorney for a New Orleans police sergeant charged with shooting unarmed civilians on the Danziger Bridge is asking a judge to drop the murder charges against his client due to alleged prosecutorial missteps.
Frank DeSalvo, who represents Sgt. Kenneth Bowen, filed a lengthy motion Monday night in federal court that accuses federal prosecutors of numerous missteps in the years-long Danziger Bridge probe. DeSalvo argues that missteps on the part of authorities make Bowen's indictment "legally invalid" and that the charges should be quashed.
Federal prosecutors have yet to rebut the motion in court filings and a judge has yet to rule on the motion. The Monday night motion is the latest in a flurry of filings in the case, which is set to go to trial in mid-June. Six current or former NOPD officers were charged in July with unjustly shooting civilians on the bridge several days after Hurricane Katrina, then plotting to cover up the attack. Five former officers have pleaded guilty in the case.
DeSalvo asserts that prosecutors violated Bowen's Fifth Amendment rights, which state that no person can be forced to incriminate himself under oath in a criminal case. The federal grand jury, as well as other co-defendants, had access to the testimony Bowen gave in a state probe of the bridge shootings, in which he testified under the promise of immunity. That access taints the federal case, DeSalvo argued.
Though the "government has maintained that a 'chinese wall' was set up to allow the present prosecution to proceed without being poisoned by the immunized testimony of Bowen," no such wall existed, DeSalvo wrote in his filing. He asserted that the law bars federal prosecutors from using that immunized testimony against Bowen.
"Clearly, the government's assertion of a 'chinese wall' was a ruse, necessary from the government's perspective in order to move forward with the tainted prosecution," DeSalvo wrote.
Bowen appeared before a state grand jury in October 2006 and invoked his Fifth Amendment right not to testify. Shortly afterward, then-Louisiana Attorney General Charles Foti and then-District Attorney Eddie Jordan obtained a court order granting him immunity in exchange for his testimony. Bowen then testified before the state grand jury for five hours. He and six others were indicted by that grand jury in late December 2006.
The state case was quashed in August 2008 by then-Criminal District Court Judge Raymond Bigelow, who ruled that former Assistant District Attorney Dustin Davis had improperly disclosed a small piece of Bowen's secret grand jury testimony to a police officer he was interviewing. Bigelow also found fault with other aspects of Davis' handling of the case, including a portion of the instructions given to the grand jury.
Months later, federal authorities announced they had opened an investigation into the bridge shootings.
In his new filing, DeSalvo also contends that the federal government was involved in the state prosecution shortly after it commenced.
A memo shows that Assistant District Attorney Dustin Davis, the lead prosecutor on the case for Jordan's office, received a phone call in October 2006 from a U.S. Department of Justice prosecutor who sought to get the "lay of the land" in regard to the case. The same federal prosecutor, Mark Blumberg, participated in an interview with victim Lance Madison, according to transcripts.
Shortly after the Danziger shooting, Tris Lear, deputy director of the state Department of Justice, met with Lance Madison at the temporary jail that had been set up at the downtown train station. Lear and an investigator from Jordan's office were called aside by an incarcerated Madison, who told them about the shooting, according to court filings. Lear forwarded a report on the conversation to Mark Gant, a top deputy in the FBI's New Orleans branch office.
Posted By: Siebra Muhammad
Thursday, March 24th 2011 at 11:51AM
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