A federal judge on Thursday dropped five years from the 17-year prison sentence of a former New Orleans police officer who incinerated Henry Glover’s body in a car on the Algiers levee after another cop shot and killed Glover on Sept. 2, 2005, four days after Hurricane Katrina hit the city.
U.S. District Judge Lance Africk resentenced Gregory McRae to 141 months, or just under 12 years. It was the third time Africk has sentenced McRae since a jury found him and two other officers — both of whom have since had their convictions erased — guilty on federal charges in 2010.
Africk rejected McRae’s argument that he was suffering an early onset of post-traumatic stress disorder when he threw a road flare into the car where Glover’s body had been placed and then fired a shot into the rear window.
But a federal appeals court last year, for the second time, nullified one of the four charges on which McRae was convicted, leaving Africk with a lower sentencing range to consider.
Federal law required a mandatory 10-year sentence for McRae’s conviction on a charge of using fire to commit a felony. The judge had discretion only on a charge of depriving William Tanner, who owned the Chevy Malibu in which Glover’s body was set ablaze, of his rights.
A federal probation report recommended a range of 21 to 27 months for that charge. McRae’s attorney, Michael Fawer, had pressed Africk to go much lower, and Africk came down on the low end of the range.
The judge noted that the two remaining charges related only to the burning of Tanner’s car but maintained that McRae’s culpability went well beyond that.
“The facts behind your convictions encompass much more than the burning of an automobile,” the judge told McRae. “Your actions transformed (Tanner’s) automobile into Henry Glover’s tomb.”
Fawer nevertheless called Africk’s decision a victory, while chiding federal prosecutors for sticking to a claim that McRae knew the body that he burned had been shot by a fellow officer. McRae has maintained he had no idea how Glover’s body ended up in the Malibu and that he decided to burn it only to avoid another rotting corpse.
“Of course, it’s important this body was burned,” Fawer said. “But when you get beyond that, if he didn’t know this was a police shooting, what is it but the act of a bizarre nut?”
Fawer was referring to the testimony Thursday of Rafael Salcedo, a forensic psychologist who portrayed McRae as an officer thrust into sleepless post-Katrina chaos, seeing dogs eat away at dead bodies and losing his mind.
Salcedo said McRae was significantly impaired in his ability to “understand the wrongfulness of his behavior.”
Recounting the horrors of the days after the storm and the flooding that followed, Salcedo said McRae had been a longtime NOPD ballistics analyst with a knack for mechanics when he was pressed into a rescue mission, taking the lead in fixing boats and other machines to aid in police search efforts.
By the fourth day after the storm, when Officer David Warren shot Glover with a rifle behind an Algiers strip mall, McRae was traumatized, Salcedo said.
“He had the capacity to know the wrongfulness of his conduct, but he was not able to exercise or control that, because he was living in a world completely devoid of laws, rules. It was chaos, anarchy,” Salcedo testified.
Africk didn’t buy it, summarily dismissing that argument. As he has at prior sentencing hearings for McRae, the judge noted that McRae’s burning of Glover’s body prevented an autopsy that could have confirmed what happened to him.
The fact that McRae never told anyone what he had done until years later, even after media accounts uncovered what happened that day, showed a disregard for Glover’s grieving family, Africk said.
Fawer and Salcedo cited McRae’s shame over the burning as a reason he stayed quiet, but Africk insisted that McRae and other officers were “hiding behind a blue code of silence,” aiming to bury the truth.
Salcedo, a court-assigned sanity expert in Orleans and other parishes across the region, acknowledged that he spoke to McRae for the first time on Tuesday, long after he’d filed a report on McRae’s behalf. That report said McRae’s trauma at the time of the burning left him unable to “exercise the power of rational thought about what he had undertaken.”
That was the case, Salcedo testified Thursday, even though McRae admitted at his trial that he had hatched the plan to burn the car with Glover’s body inside it when he was at an elementary school site where police had set up a camp. He then drove the Malibu to the levee ahead of retired Lt. Dwayne Scheuermann, who was acquitted in the 2010 trial on obstruction and other charges.
With Salcedo’s help, Fawer unsuccessfully pressed Africk for three hours to consider the idea that McRae met the legal bar for losing what the judge once described as his “compass.”
The reduction in McRae’s sentence drew sharp criticism from Glover’s aunt, Rebecca Glover, who called it “nothing but a farce.”
She vowed to keep pushing Orleans Parish District Attorney Leon Cannizzaro’s office to pursue a state grand jury indictment against Warren for murder.
“This is utterly ridiculous,” she said outside the courtroom. “Through it all, Henry is still dead, and nobody is convicted of murdering him,” she said. “This is a joke. Nothing surprises me in here. Everybody should be outraged (by) all of this. I can’t leave this alone.”
McRae remains the only one still behind bars among the three officers who were found guilty in what federal prosecutors portrayed at the time as an orchestrated cover-up of Warren’s illegal use of force.
Glover and his brother-in-law, Bernard Calloway, had driven up to the rear of a Gen. de Gaulle Drive strip mall, looking to retrieve items that a friend had taken from a closed store there, according to trial testimony. Armed with his personal high-powered rifle, Warren was standing watch over a police substation in the strip mall. He fired one shot, striking Glover.
Warren said later he thought the men were storming the rear gate and that he fired out of fear for his life but didn’t realize until much later that he had hit Glover.
A federal appeals court in 2012 granted Warren a new trial, finding that his conviction for shooting Glover had been tainted by weeks of testimony about an alleged cover-up in which he had no part. Warren was acquitted more than two years ago in a retrial during which jurors never heard what became of Glover’s body.
Months after the three officers were found guilty, Africk tossed out the conviction of Lt. Travis McCabe after newly found evidence contradicted the allegation that he had doctored a police report on the shooting. McCabe returned to the force.
Africk twice sentenced McRae to the same 17-year term, first after his conviction and again in 2014 after the 5th U.S. Circuit Court of Appeals dismissed a count of depriving Glover’s survivors of their right to access the courts to seek redress.
The latest charge against McRae to be dropped, prompting Thursday’s resentencing, was a federal count of altering or destroying a record or a “tangible object” used to “record or preserve information.” The appeals court found that burning Tanner’s car didn’t qualify.
McRae smiled as he met briefly with family and friends in the courtroom after the hearing. McRae’s wife died while he remained in federal custody. He is now slated to leave prison in about six years.
“It’s what we expected,” McRae said to supporters who met him in front of the courtroom gallery, “so we’ll go with it.”
Fawer said he would file a notice of appeal over the new sentence.
Follow John Simerman on Twitter, @johnsimerman.