In a ruling almost certain to be appealed, an Orleans Parish judge on Wednesday threw out the early identifications of Jerome Morgan as the killer of a 16-year-old boy in 1993 that were made by a pair of witnesses who have since recanted and now face perjury charges.
But Criminal District Court Judge Franz Zibilich denied a request from Morgan’s attorneys to have the two witnesses’ trial testimony excluded from a retrial in the murder of Clarence Landry, who was shot to death at a birthday party in a Gentilly motel ballroom.
Zibilich hinted at a court hearing last week that he wanted the state 4th Circuit Court of Appeal to clarify its May 2014 ruling upholding a decision by a different judge, Darryl Derbigny, granting Morgan a new trial.
Derbigny found that New Orleans Police Department detectives “successfully diluted and ultimately polluted the minds” of the two witnesses, Hakim Shabazz and Kevin Johnson, who did not initially pick Morgan from a photo lineup but later fingered him as the shooter.
Derbigny also found that authorities failed to reveal that police call logs showed that officers arrived at the motel just six minutes after the fatal shooting. Morgan was inside the locked-down ballroom, but witnesses said the shooter had run off, casting doubt on his guilt.
In his split ruling, Zibilich said no one can testify at a retrial for Morgan about the identifications that Shabazz and Johnson gave to police, but that transcripts of their testimony during the earlier trial were still in play.
A spokesman for District Attorney Leon Cannizzaro’s office declined to say whether his office would appeal the ruling, but Emily Maw, director of the Innocence Project New Orleans, which represents Morgan, said her office would appeal.
In charging the two witnesses with perjury, Cannizzaro’s office has not said when it believes they perjured themselves — at Morgan’s trial or in recanting their identifications at a post-conviction hearing in 2013.
The case against Morgan was built largely on the statements of the two men, so how the courts rule on the motion to suppress their identifications could determine whether Cannizzaro’s office moves forward with a retrial.
Derbigny granted Morgan a new trial two years ago. At Cannizzaro’s urging, he agreed to recuse himself from a retrial.
Morgan, now 39, remains free on bail.
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