The Times-Picayune June 20, 2007
New Orleans District Attorney Eddie Jordan has promised to drop the murdercharges against two Memorial Medical Center nurses accused by Attorney
General Charles Foti of helping Dr. Anna Pou to euthanize four patients
after Hurricane Katrina, instead seeking to compel their testimony to a
grand jury, according to documents filed at the Louisiana Supreme Court.
The chief prosecutor over the case, Assistant District Attorney Michael
Morales, filed motions in late May seeking to force the grand jury testimony
of nurses Lori Budo and Cheri Landry, whose lawyers unsuccessfully contested
the motions in a writ to the state Supreme Court. The motion also sought to
compel the testimony of a third nurse not accused in the case, and
identified only as Witness #3.
The promise of immunity bars the nurses from exercising their Fifth
Amendment right against self incrimination by guaranteeing that statements
to grand jurors will not be used against them in future legal proceedings,
according to the documents, although prosecutors could still develop
separate evidence to pursue a case against them.
The district attorney's motivations for seeking the testimony remain
unclear. The move could reflect a strategy of using the nurses' testimony to
bolster the case against Pou, the doctor accused of murder, who has
maintained her innocence. But Jordan could just as well be seeking to
present a side of the case sympathetic to the defense, allowing the grand
jury a balanced view before it decides whether to return indictments in the
controversial, high-profile case.
Questions of Evidence
Dane Ciolino, a Loyola Law School professor and defense lawyer, said the
motions could indicate that Jordan's office doesn't believe it has the
evidence to secure convictions against the nurses.
"That is usually the reason a DA doesn't prosecute somebody," Ciolino said.
In a written statement, Pou's attorney noted that since she was arrested
last July, the DA has denied her access to any medical or forensic data that
could be used to support her defense.
"We remain confident that once all the facts are known, all medical
personnel will be exonerated of any criminal charges. The fact that certain
witnesses may or may not be talking to the Grand Jury does not change that
fact," Rick Simmons wrote.
The nurses and their attorneys made clear in court filings that they don't
trust the district attorney's promise not to prosecute them. In their writ
application, made available by the Supreme Court's clerk office to a
reporter, attorneys for the nurses expressed concerns in the filing that the
information they provide will at some point be used against Budo and Landry,
as well as giving prosecutors a preview of the defense the nurses would
offer, if the case against them proceeds.
The attorneys also noted that in the Danziger Bridge police shootings case,
Jordan's office compelled testimony from three officers -- in exchange for
immunity -- and then went to indict all seven officers involved in the
shooting, including those granted immunity. The shootings left two men dead
and four people wounded in Katrina's aftermath.
Split In Legal Strategies
The special grand jury was impaneled in early March by Jordan's office, but
the investigation into the deaths of four patients was conducted by Foti's
office and an investigator for the U.S. Department of Health and Human
Services' inspector general. In July 2006, Foti arrested both Budo and
Landry, along with Pou, booking them with second-degree murder. He accused
them of conspiring to euthanize four patients with deadly injections of
sedatives and morphine shortly before all of the patients were evacuated
from the hospital.
Through their attorneys, Budo, Landry and Pou have all denied killing any
patients, saying they instead struggled for several days to keep alive very
sick people in sweltering heat with limited supplies.
Despite assurances that the nurses won't be targeted, their defense lawyers
were alarmed by statements made by Morales in late May indicating a clear
split in strategy between the district attorney and attorney general's
office. In their pleading they quote him, speaking in a closed session in
Johnson's chambers, saying of the attorney general's office: "They don't
like the way we're handling the case. If it were up to them, they would have
indicted all of your clients."
But in the same statement Morales asserts the prerogative of Jordan's office
to handle the case, saying that the attorney general has no legal basis to
step in. "We are not allowing the attorney general to prosecute this case,"
the pleading quotes him as saying. "If they would have had the authority,
they would have done so."
In the writ denied by the Supreme Court, the nurses' attorneys pointed out
that while the Orleans Parish district attorney might not intend to indict
the nurses that Foti could, on his own, subsequently attempt to prosecute
them, as could the U.S. Attorney's office.
