It started with bags of charred bones, some dogged journalism and, three years after the smoke had cleared from the Algiers levee, an almost unfathomable tale of barbaric violence and corruption wrought by New Orleans police.
It all but ended on Friday with this: a single ex-officer held criminally accountable in the Henry Glover case, and lingering questions about whether federal prosecutors went too far in suggesting a broad police conspiracy — or perhaps not quite far enough.
The name of Henry Glover — a 31-year-old unarmed man who was shot by a police officer on Sept. 2, 2005, set aflame by another officer while prone in the backseat of a Chevy Malibu on the levee, then left unidentified for years — became shorthand for the image of a police force having come unglued in the heat and carnage after Hurricane Katrina, exposing a morally empty core.
Heads rolled in the department — as high up as then-Assistant Superintendent Marlon Defillo — over a failure to investigate what happened. The public howled. “I am Henry Glover,” T-shirts read.
In 2010, the government targeted five officers at a trial in which prosecutors tied together Glover’s shooting, the burning and a subsequent alleged cover-up by 4th District officers. A jury returned guilty verdicts against three of the five.
But four years later, just one of those convictions — that of former officer Gregory McRae — is still standing, for setting Glover’s body aflame. And it was perhaps no wonder that U.S. District Judge Lance Africk displayed a frustrated sense of justice thwarted as he resentenced McRae to 17 years in prison on Friday.
Africk refused to accept McRae’s explanation that burning Glover’s body on the levee was the act of a stressed-out cop tired of foul-smelling corpses after Katrina’s destruction, and not of an officer looking to cover up a homicide, officer-related or not.
McRae’s explanation “was nonsensical at best and pure fabrication at worst,” the judge said.
Africk also refused to endorse a jury’s acquittal last December of David Warren in a retrial on charges that Warren unjustifiably fired upon Glover through a back gate in an Algiers strip mall. Warren committed manslaughter pure and simple, Africk said, calling it “farcical” that the former officer claimed he saw a weapon in Glover’s hand.
“Henry Glover was not at the strip mall to commit suicide,” the judge said. “He was there to retrieve some baby clothes.”
Appeals court ruling
Still, the judge was forced to resentence McRae, and to conduct a new trial for Warren, only in response to a 2012 appeals court ruling that took him to task for sticking with a decision to let prosecutors try all five defendants together in 2010.
The appeals court tossed out Warren’s conviction and his 25-year sentence for shooting Glover, saying Warren’s case had been “clearly prejudiced” by evidence presented against the other cops.
Even if the judge was right in denying Warren a chance to stand trial alone, he was dead wrong in letting federal prosecutors play out a conspiracy theory during the trial, the appeals court said.
Even though prosecutors didn’t charge a conspiracy, “the government was attempting to try the cases against each defendant as a whole piece, in effect a conspiracy, involving each of the defendants in a grand scheme in the Fourth District to engage in criminal conduct to protect Warren for his role in Glover’s shooting,” the court ruled.
The ruling served to unravel what had seemed to be a single, horrifying narrative: Cops kill man, burn him and hide the crimes.
At Warren’s retrial, the jury heard nothing about a burning or an alleged cover-up.
For the attorneys for the defendants, that only made sense.
There was no evidence that Warren knew about the burning or any subsequent cover-up, they said, and nothing to suggest McRae knew the body he burned had been shot by a cop.
“That’s the government. They keep hanging on to this thing like everybody was guilty, everybody was terrible,” said Julian Murray, one of Warren’s attorneys. “They’re supposed to be out for justice, not vengeance. They get carried away with these things sometimes, and they don’t let go.”
A spokeswoman with the Justice Department’s Civil Rights Division, which led the prosecution, did not respond to a request for comment about the final outcome of the case.
Upping the ante?
Some attorneys said federal prosecutors might have saved the case if they had upped the ante, formally charging Warren in a conspiracy.
Such a charge doesn’t require each defendant to know about every act in the alleged conspiracy. That tactic might have made the case more unbreakable, some legal observers said.
“Conspiracy is the most powerful weapon in a federal prosecutor’s arsenal, and if Warren had been charged in a conspiracy with the others, he could have been tried with them,” said Shaun Clarke, a former federal prosecutor in New Orleans.
“Having said that, they may have made a good-faith judgment that the facts did not support including Warren in a conspiracy. If that was the reason they didn’t, I applaud them for it.”
Nevertheless, federal prosecutors took an “aggressive position” in trying all five defendants together, conspiracy or not, Clarke said.
Defense attorneys often criticize federal prosecutors for lumping numerous defendants in a single prosecution, painting them in a more nefarious light than their individual acts alone justify.
Loyola law professor Dane Ciolino said he was surprised there wasn’t more of an effort to connect the dots among the defendants in the Glover case.
Still, “I always thought the case against Warren was a tough one to make. I think it should have been charged as a negligent homicide rather than a murder. Had it been properly charged in the first place, the result might have been different,” Ciolino said.
“The cover-up, of course, colors everything else, somewhat unfairly. It puts the initial shooting in a whole different light, in both (the Danziger Bridge shooting case) and Glover. In both cases, you’re probably dealing with negligence at worst. But when you take what is otherwise a negligent shooting and follow it up with a cover-up, you change the complexion of the antecedent shooting. That’s why severing (the Warren case) was the fair thing to do.”
Local defense attorney Pat Fanning, also a former federal prosecutor, downplayed criticism of Africk, who is considered a prosecution-friendly judge. Fanning said few judges in the federal courthouse would have called off a trial midstream on a motion to sever one of the defendants from the case.
“Warren was very fortunate to get that (appeals court ruling),” Fanning said. “It was the proper decision. I just think he’s lucky.”
To be sure, Warren also had the benefit at his second trial of still more testimony by some police officers who already had given conflicting testimony about what they saw and remembered from the day of the shooting — shaky accounts that perhaps bolstered the jury’s decision to acquit him.
Warren was attending to the death of a family member last week and could not be reached, his attorney said.
Lt. Travis McCabe, the third officer who was originally convicted in the case, would not comment. McCabe is back on duty after federal prosecutors in February dropped the case against him.
In 2011, Africk overturned McCabe’s conviction, agreeing he should get a new trial based on new evidence that came to light after he was convicted of doctoring a police report under another officer’s name in an effort to show Warren’s shooting was justified.
Africk had found that an earlier draft of Sgt. Purnella Simmons’ report was virtually identical to the final version, undermining accusations that McCabe fudged it. Africk said the jury probably would have acquitted McCabe had it known about the earlier draft.
Two other officers, Dwayne Scheuermann and Lt. Robert Italiano, were acquitted at the 2010 trial.
Scheuermann, who is no longer on the force, followed McRae to the levee with a plan to remove the corpse from a temporary police outpost at Habans Elementary School after higher-ups in the NOPD declined to come to the site right away to handle the apparent homicide. He insists that none of the cops who were prosecuted in the case made the connection between Glover’s body and the earlier shooting at the strip mall until the investigative reporting site ProPublica broke the story in late 2008.
Africk chafed at the fact McRae, for years, failed to report his burning of the body. And many observers were incredulous at the apparent silence from officers about a body in a car that several officers were informed about after it turned up at the police outpost near the shooting scene.
A ‘disturbing’ silence
“One of the most disturbing things to me about this entire period in our history ... is that to my knowledge there were no police officers who came forward voluntarily or on their own initiative to report what was going on in this or in any of the other (post-Katrina) cases,” civil rights attorney Mary Howell said.
“I’m not talking about the people involved in the incidents themselves, but the people who had knowledge and did not come forward. That silence is disturbing. It’s all tied to ethical decision-making, to police officers being trained to make the right choices. But the fact that nobody came forward for all these years is really disheartening.”
Howell sees hope in training slated for NOPD officers under a 2-year-old federal consent decree, training that will teach officers to intervene when they see misconduct by fellow cops.
In the meantime, as Warren quietly resumes his life and McCabe works the late shift in the 1st District, McRae will serve the remainder of a 207-month sentence in federal prison, barring a successful appeal, for his conviction on counts of using fire to commit a felony, obstructing a federal investigation and depriving a man of his right to be free from unreasonable search and seizure.
“It certainly does look like he (McRae) was left holding the bag for the whole case,” Ciolino said.
In apologizing to Glover’s family Friday, McRae insisted he was “sorry it took you years to determine the horrible details of his death. That was never my intention.”
McRae insisted it was pride that kept him from reporting the burning.
Africk, however, noted that McRae admitted that, even when confronted by an NOPD investigator, he “did not volunteer ... that ‘I’m the one who, indeed, burned the car.’ ” Instead, he kept it under wraps for more than five years.
According to Africk, it was McRae’s fault that more evidence against Warren was unavailable — namely, the trajectory of the shot that killed Glover, which might have been determined from the corpse.
Instead, Glover ended up a pile of bone fragments, divvied up into red plastic biohazard bags.
Staff writer Gordon Russell contributed to this report. Follow John Simerman on Twitter, @johnsimerman.