Juan Smith leaned back in a leather sofa Friday, his feet clad in sandals that he planted on a rug in the chambers of Orleans Parish Criminal District Court Judge Frank Marullo.
The former death-row inmate, now 39, stared across the room to where his attorneys and a state prosecutor hovered as the judge leafed through dozens of photos from a grisly crime scene nearly two decades ago.
The snapshots showed what prosecutors and a jury long ago agreed was Smith’s violent handi- work: carnage from a blood-soaked rampage the day after Mardi Gras in 1995 that left five people dead at a house on North Roman Street.
Smith’s murder conviction a year later, however, was overturned two years ago in a lopsided U.S. Supreme Court decision that left the Orleans Parish District Attorney’s Office with two black eyes — one for its failure to turn over key evidence in the case to the defense at the first trial, the other for its stubborn refusal later to concede the error.
And so Marullo once again, 18 years after Smith’s first trial, ruled one-by-one on which photos prosecutors could introduce as evidence in a retrial set to begin with jury selection Monday — and which would be, literally, overkill.
“Gory, gory photograph,” Marullo commented of one shot with a head-on view of 22-year-old murder victim Willie Leggett’s blood-soaked face. “I’m not letting it in.”
Bobby Freeman, the lead prosecutor in the retrial, grew frustrated.
“There’s a certain point where the defendant can’t benefit from his actions,” Freeman argued. “The jury should be able to see these were, in fact, people.”
As the trial is set to get underway — barring a possible change of venue should Marullo rule that an impartial jury can’t be found in Orleans Parish — the huge gap in time presents hefty challenges for both the public defenders and prosecutors with District Attorney Leon Cannizzaro’s office.
The jury is expected to rely to a large extent on testimony, past and present, from witnesses, including the lead detective, John Ronquillo, and others recounting memories from a shocking crime that took place in a different era.
Among those expected to testify is former New Orleans police Sgt. Archie Kaufman, who more recently was convicted of masterminding a cover-up of the Danziger Bridge shootings after Hurricane Katrina — a conviction that a federal judge scrapped last year.
Back in 1995, Kaufman interviewed a key eyewitness in the Roman Street case, Larry Boatner, who at first said he was “too scared to look at anybody” after the shooting spree. Three months later, however, he picked Smith out of a photo lineup and said, “I’ll never forget Juan’s face, never.”
An 8-1 decision
That about-face alone was enough to sway the Supreme Court to overturn Smith’s conviction.
Cannizzaro’s office had argued that Boatner’s first statement came from the mouth of a man traumatized while standing in a house full of dead bodies, and that his second statement days later, when he said he wouldn’t be able to finger the killer, was simply fear of retaliation that the jury would have understood.
That argument “offers a reason that the jury could have disbelieved Boatner’s undisclosed statements, but gives us no confidence that it would have done so,” Chief Justice John Roberts wrote in the Supreme Court’s 8-1 majority opinion, from which only Justice Clarence Thomas dissented.
Marullo ruled last week that the jury can’t hear about Kaufman’s alleged role in the Danziger cover-up. Nor can it hear any references to the earlier trial for Smith, even if it hears transcripts of testimony from the case, or to his conviction in other murders a few weeks after the Roman Street killings.
Prosecutors have been tight-lipped about which witnesses they plan to call in the retrial, revealing only reluctantly Friday that they hope to put Robert Trackling, a former co-defendant, on the stand. Prosecutors revealed just last week that Trackling, who testified against Smith at the first trial for the Roman Street killings and pleaded guilty to lesser charges, claims to have heard an additional confession from Smith while they were behind bars.
Marullo has placed a gag order on the case, barring attorneys from discussing it in public.
Smith’s defense attorneys say they fear prosecutors will gain an unfair benefit from fading memories in the case — and thus from the prosecution’s failure to turn over evidence in the first place.
In court last week, they argued that the jury should hear about Ronquillo’s notes describing a purported dying declaration from one of the five victims who were killed in the Roman Street house, 17-year-old Shalita Russell, as she lay on the kitchen floor with gunshot wounds.
The notes say Russell claimed to have seen men barge into the house with their faces covered — a claim that could challenge Boatner’s account of clearly seeing Smith. Ronquillo didn’t hear Russell’s alleged statement himself, and now he says he doesn’t remember who told him about it.
Such are the difficulties in trying a case decades later as if it were brand-new, some criminal defense experts say.
Where DNA testing is involved, time may strengthen a case and make evidence clearer for a jury. But in Smith’s case, it appears only to cloud it.
“I think jurors are becoming hipper to the fact that memory is a tricky thing. The problem with delay — particularly a delay with a case that has a lot of discussion and media attention — is our memories are not the greatest organizers,” said George Kendall, a New York-based lawyer who often works on capital and post-conviction cases.
After many years, “witnesses have a hard time truthfully saying whether events are something they actually observed,” he said. “That can happen to any witness — a defense witness or prosecution witness. It’s the rare case that you’re going to wait 20 years and things are going to get better. And jurors understand that.”
Kendall represented a former Louisiana death-row inmate, Wilbert Rideau, who was convicted of manslaughter in 2005 after three successive murder convictions — all later tossed out — beginning in 1961 for a bank robbery and killing in Lake Charles. Since he’d already served four decades in prison, Rideau was set free after the 2005 verdict.
In another case, a jury in 2010 reconvicted Robert Tassin, of Westwego, in a 1986 killing in Harvey after Tassin had served 20 years on death row. His conviction had been overturned after a federal judge found that prosecutors withheld a plea agreement made with his ex-wife in exchange for her testimony.
Denise LeBoeuf, an ACLU lawyer who represented Tassin and has worked on numerous capital cases, said the confusion that juries can face tends to help prosecutors in long-delayed retrials such as Smith’s.
“I think there is a real question of (whether) this can fairly be done,” LeBoeuf said. “The jury’s not stupid. What they are going to speculate on is: ‘The murders were in 1995; it’s 2014, why are we here? This guy has been on the lam the whole time? He’s been living the high life? Or is it that he got a new trial because pesky defense lawyers got him off on a technicality?’ Because that’s the language of popular fiction.”
LeBoeuf headed up the Capital Post-Conviction Project of Louisiana when its lawyers helped Smith launch a challenge to another conviction, also in 1996, for a triple murder on Morrison Road.
In that case, the jury heard evidence of Smith’s earlier conviction in the Roman Street murders as a reason to send him to death row. The jury in the Roman Street case had convicted Smith of five murders but refused to sentence him to death.
Cannizzaro’s office is not seeking death in the trial this week.
Retrials over guilt or innocence after so long a period are relatively rare. More common are trials years or decades later over the penalty phase of capital cases — the question of whether or not a convict should face death.
Smith sat on death row for 16 years before the U.S. Supreme Court overturned the Roman Street convictions. In the wake of that ruling, Marullo set aside his death sentence in the Morrison Road case — in which his lawyers continue to argue similar claims of prosecutorial misconduct — because it was based at least in part on the earlier convictions. That case remains on hold pending a decision by the Louisiana Supreme Court on whether Marullo should be recused from handling it.
In February, Smith’s attorneys and prosecutors hammered out a deal under which he would have pleaded guilty to one count of manslaughter for each of the killing sprees. A pair of maximum 40-year prison sentences would have kept him locked up for another 20-plus years. But Marullo rejected the deal, saying he still needed to honor the jury’s murder conviction in the Morrison Road case, even though he had set aside his sentence.
In that case, a jury convicted Smith of killing former Saints player Bennie Thompson’s ex-wife, Tangie Thompson; their 3-year-old child, Devyn Thompson; and Tangie Thompson’s boyfriend, Andre White.
The victims in the Roman Street rampage, along with Russell and Leggett, 22, were James Jackson, 43; Ian Jackson, 24; and Robert Simmons, 28.
The shooting sprees fell within a month of each other. The eight murders, all pinned on Smith, came at a time when New Orleans was suffering through a peak killing period that earned the city the moniker of “America’s murder capital.”
The jury that is expected to be seated this week may not understand that context, or the deep mistrust over police conduct at the time, LeBoeuf said.
“It’s confusing to the jury. There are good lawyers trying this, but I think the jury is being asked to set the clock back, and that’s not going to happen,” she said.
“The only thing that isn’t confusing to the jury is the sympathy for the victims and realizing that this was a horrible homicide, that these deaths were terrible and tragic. That doesn’t diminish with time.”
Follow John Simerman on Twitter, @johnsimerman.