Two pivotal witnesses who identified Jerome Morgan as the shooter in a 1993 killing, only to recant those identifications two decades later, will not testify at a retrial scheduled for next month.
Orleans Parish District Attorney Leon Cannizzaro’s office last year charged the witnesses, Hakim Shabazz and Kevin “Lucky” Johnson, with perjury for their changed stories, and they’ve asserted their Fifth Amendment right to try to avoid further trouble.
But an Orleans Parish judge ruled Monday that prosecutors can show a jury their 1994 trial testimony as the DA’s Office tries to convict Morgan a second time for the killing of 16-year-old Clarence Landry during a birthday party at a motel ballroom in Gentilly. The jury also will see their 2013 testimony reversing their position.
Criminal District Court Judge Franz Zibilich rejected a claim by Morgan’s attorneys that prosecutors charged the two men with making inconsistent statements simply to muzzle them.
Morgan’s attorneys also argued that letting a new jury hear the men’s earlier trial testimony would unfairly reward the DA’s Office for past failures to turn over key evidence in the case. That evidence, they argued, could have been used at Morgan’s original trial to challenge the identifications.
Although Shabazz and Johnson now say they were coerced by police, their identifications of Morgan remain central to the case, and Monday’s decision appears to boost the likelihood that Cannizzaro’s office will press on with a retrial of Morgan.
Morgan, who turns 40 next week, has remained free since early 2014, after a different judge, Darryl Derbigny, granted him a new trial.
Derbigny found that New Orleans detectives “successfully diluted and ultimately polluted the minds” of Shabazz and Johnson, who did not initially pick Morgan from a photo lineup.
Derbigny also found that authorities had failed to reveal police call logs that showed officers arrived at the Howard Johnson motel six minutes after the fatal shooting there. Morgan was inside the locked-down ballroom when police showed up, although witnesses said the shooter had run off. The jury heard about a much longer delay that suggested Morgan had ample time to run away and return.
Rob McDuff, one of Morgan’s attorneys, noted that Cannizzaro’s office charged Shabazz and Johnson with perjury only after an appeals court upheld Derbigny’s decision to toss out Morgan’s murder conviction and life sentence.
“They wanted to wait to see if there was going to be a new trial ... to prevent these witnesses from testifying, because they knew that testimony would be helpful to Mr. Morgan,” McDuff argued. “If they’ve got other evidence, let them bring it on. We’ll be here. They don’t (have any). They’ve been scouting Angola for it. They don’t have it and they know they don’t have it.”
McDuff was referring to a recent trip by prosecutors to the state penitentiary in pursuit of possible jailhouse informants who might help bolster their case against Morgan. According to Morgan’s attorneys, they came up empty.
Assistant District Attorney Donna Andrieu on Monday disputed the allegations of chicanery, arguing that Shabazz and Johnson created their legal problems when they recanted their earlier testimony.
Andrieu also tried to flip the script on Morgan’s attorneys with the Innocence Project New Orleans, claiming they had failed to warn the two men they could face perjury charges before eliciting their claims that police strong-armed them into identifying Morgan as Landry’s killer.
“They allowed those people to expose themselves by taking the stand,” Andrieu said. Two decades ago, she said, Johnson “had no doubt that Jerome Morgan was the shooter. That was his statement for 19 years until the onset of interviews by (the Innocence Project).”
Still, Andrieu refused to say whether prosecutors believe the two men lied in their 1994 trial testimony or at a hearing in 2013 on Morgan’s bid for a new trial.
“We don’t have to prove which statement is false,” she said.
In 2013, Johnson testified that Landry, the teenager killed in 1993, was his best friend and that he was pressured after the killing to put the blame on Morgan, whose name was circulating on the street as the shooter. He first dismissed Morgan’s picture from a photo lineup, then did so again seven months later. However, he said, a detective then thrust Morgan’s photo back into the mix.
“Are you sure it’s not this guy right here?” the detective asked him, according to an affidavit Johnson signed. He said he figured everyone else must be right.
Shabazz, who also was shot at the party, spent 10 days in the hospital, then got a call from a detective who asked him if he knew who had shot him. Shabazz said he never saw a face.
The detective allegedly said, “Jerome shot you,” then asked Shabazz to come to the station to give a statement.
“It’s almost like they painted this picture for me, that it was him,” he said in 2013. “What I did, it just wasn’t right.”
Derbigny recused himself from presiding over a retrial at the urging of prosecutors.
Zibilich acknowledged Monday that the filing of perjury charges benefits prosecutors in their case against Morgan by freezing out new testimony from Shabazz and Johnson. But Zibilich said it would take “a quantum leap” to conclude that Cannizzaro’s office filed the charges only to silence the two men.
“One could argue that it doesn’t smell that great,” he said. “But not smelling so great falls short of this court making a finding that the state intentionally procured or caused the unavailability” of the two men.
Barring a successful appeal, the ruling to allow their earlier trial testimony means a jury will have to decide which of their accounts to believe.
Morgan, who is represented by McDuff and Innocence Project New Orleans attorney Kristin Wenstrom, is due to stand trial May 2.
“This is not a fair or good or balanced result for Jerome Morgan,” Innocence Project Director Emily Maw said.
The perjury case against Shabazz and Johnson, meanwhile, remains in a holding pattern.
Follow John Simerman on Twitter, @johnsimerman.