A federal judge Monday refused to order a new trial for Gregory McRae, the former New Orleans police officer who set Henry Glover’s body ablaze in the lawless aftermath of Hurricane Katrina.
The ruling, which paves the way for McRae to be resentenced later this month, left standing the only conviction remaining from the far-reaching federal investigation into Glover’s fatal shooting and an alleged police cover-up that followed. It underscored the difficulty criminal defendants are having in capitalizing on an online-commenting scandal involving the U.S. Attorney’s Office.
U.S. District Judge Lance Africk rejected claims that McRae, one of five NOPD officers charged in the Glover case, was deprived of a fair trial in 2010 because of alleged grand jury leaks and inflammatory comments left on online news articles by former federal prosecutor Sal Perricone.
McRae’s attorney, Michael Fawer, claimed Perricone deliberately sought to influence public opinion by criticizing police in comments he posted on stories about the Glover case and others, but Africk said the evidence “would not probably result in a different verdict.”
“The jury was expressly and repeatedly instructed to base its verdict solely on the admissible evidence and to avoid any exposure to media coverage of the case,” Africk wrote in a 16-page ruling.
McRae has acknowledged he thought Glover was the victim of a homicide, but he maintains he never knew the man was shot by a fellow police officer, David Warren, and had no inkling of a police cover-up. He had seen other bodies rotting after Katrina, he testified, and did not want the same to happen to Glover, so he drove a vehicle containing the corpse to the Algiers levee and set it alight.
In his ruling Monday, Africk said he was also unpersuaded by Fawer’s argument that jurors could not grasp McRae’s state of mind because they were unaware of a psychologist’s report that found the officer showed symptoms of post-traumatic stress disorder as a result of Katrina.
While the report might have bolstered McRae’s testimony that he broke down after the storm, Africk said, “the ultimate credibility call with respect to specific intent was made by the jury on the basis of extensive evidence, including voluminous testimony from McRae himself.”
Fawer said Monday he is considering an appeal depending on the results of the resentencing hearing, scheduled for June 19.
“It’s one thing for a guy to get on the stand and say, ‘I was really losing it,’ ” Fawer said in a telephone interview. “It’s quite another thing for a doctor hired by the government to say he was losing it.”
McRae was one of three officers found guilty in the Glover case — another two were acquitted — but is the only one still facing time behind bars. Warren, who was a rookie cop when he fatally shot Glover in September 2005 from the second-floor breezeway of an Algiers strip mall, was convicted in 2010 and sentenced to 25 years in prison. But the 5th U.S. Circuit Court of Appeals held in 2012 that Warren was unduly prejudiced by having to stand trial alongside his co-defendants, and, during a retrial late last year, he was found not guilty of civil rights charges.
Lt. Travis McCabe, meanwhile, had his conviction set aside after a draft police report surfaced that apparently undercut the government’s claim that he doctored a police report to make Glover’s shooting appear justified. Federal prosecutors announced after Warren’s acquittal that they will not retry McCabe, who has since rejoined the force.
Fawer said he expects McRae’s new sentence will be significantly shorter than the 17-year term he received before the 5th Circuit vacated one of the four counts for which he was convicted. The appellate court upheld McRae’s convictions for use of fire to commit a felony, obstruction of a federal investigation and denying a man his right to be free of unreasonable search and seizure, but it tossed out his conviction for denying Glover’s survivors the right to access the courts — a charge prosecutors sought because they said the burning of Glover’s remains made it more difficult for his family to pursue a wrongful-death suit.
Fawer argued that McRae’s trial was tainted in part because “government actors intentionally misused the media to obtain a conviction” — an increasingly common, yet rarely successful, challenge among federal defendants in New Orleans in the wake of the online-commenting scandal that prompted the resignation of former U.S. Attorney Jim Letten in 2012. Last year, comments posted by federal prosecutors provided much of the basis for U.S. District Judge Kurt Engelhardt’s decision to vacate the convictions of five former police officers in the Danziger Bridge shootings and cover-up, another high-profile case of police misconduct in the wake of Katrina. But otherwise, the scandal has borne little fruit for defendants.
Fawer requested an evidentiary hearing in order to probe alleged prosecutorial misconduct in the Glover case, but Africk denied that request Monday. “The court need not decide at this juncture who knew what about whom at the U.S. Attorney’s Office,” Africk wrote.
Fawer said McRae’s trial lawyer committed a “devastating” error by not requesting McRae be tried separately from his co-defendants. “If you take away Warren and you take away the rest of it,” Fawer said, “you have a bizarre burning of a body by a guy who’s been virtually in the middle of a nervous breakdown in the throes of Katrina.”
Follow Jim Mustian on Twitter, @JimMustian.