The former New Orleans police officer who incinerated Henry Glover’s body on the Algiers levee after another cop had shot Glover on Sept. 2, 2005, will once again urge a federal judge this month to go light on him.
And for this sentencing, Gregory McRae’s third since his 2010 conviction, he has found new support for his claim that he was mentally impaired at the time of the burning.
In a report this week, forensic psychologist Rafael Salcedo found that McRae “did not understand the wrongfulness of his conduct” when he drove a Chevy Malibu with Glover’s bloody body in the backseat to the levee and torched it four days after Hurricane Katrina hit New Orleans.
U.S. District Judge Lance Africk on Wednesday set a Jan. 28 resentencing date for McRae, 54, in response to a federal appeals court ruling in July tossing out a second of the four charges on which a jury found him guilty.
Africk has twice sentenced McRae to a 17-year prison term — first upon his conviction and again last year after the 5th U.S. Circuit Court of Appeals in 2012 dismissed a count of depriving Glover’s survivors of the right to access courts to seek redress.
At the second sentencing, Africk stressed McRae’s failure for years to reveal what he did. The judge largely disregarded McRae’s insistence that he had no clue at the time that Glover had been shot by another officer.
“Your entire course of conduct evidences cover-up as opposed to stress disorder. You were callous and cold-hearted for allowing the Glover family to continue to suffer as they wondered in despair what had happened to their beloved Henry,” Africk said in handing McRae the same 207-month sentence.
“You did not merely burn a corpse,” Africk said. “You, a law enforcement officer, burned a corpse to obstruct justice.”
McRae, a 26-year NOPD veteran, is the only one still in jail among the three officers who were found guilty in what federal prosecutors portrayed at the time as an orchestrated cover-up of rookie NOPD Officer David 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 own 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 he fired out of fear for his life but that he didn’t think he’d hit Glover.
Africk would later toss out the conviction of Lt. Travis McCabe after newfound evidence contradicted the allegation that he had doctored a police report on the shooting.
A federal appeals court in 2012 granted Warren a new trial, finding his conviction for shooting Glover was tainted by weeks of testimony about an alleged cover-up in which he had no part. He was acquitted two years ago in a retrial during which jurors never heard what happened to Glover’s body after Calloway and others sped him to a nearby emergency outpost.
The latest charge against McRae to be dropped, prompting his second 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 the auto didn’t qualify.
McRae remains convicted on counts of using fire to commit a felony and depriving William Tanner, the car’s owner, of his right to be free from unreasonable seizure. The former count carries a mandatory 10-year sentence.
McRae’s attorney, Michael Fawer, said he will urge Africk to reduce McRae’s sentence on the latter charge, arguing that “he did not understand what he was doing was wrong” and that he “really was incapable of a rational thought at the time, because he was in the throes of the early stages of post-traumatic stress.”
Fawer earlier argued in vain that McRae deserved a new trial based in part on a 2011 report from a psychologist enlisted by federal probation officials. Clinical psychologist William Janzen found then that McRae suffered from post-traumatic stress disorder, depression and anxiety “as a result of his experiences during and after Hurricane Katrina.”
Salcedo, who frequently testifies as a court-appointed expert in state mental competency proceedings, goes further in the new report, claiming that McRae was mentally impaired at the time he tossed road flares and fired a gunshot into the Malibu to ignite it.
Salcedo said a review of the trial testimony of McRae and fellow officers Dwayne Scheuermann and Capt. Jerry Winn provides “substantial evidence to support the fact that Officer McRae was suffering from (PTSD) which began shortly after the arrival of Hurricane Katrina and progressed quickly and intensely; further complicated by sleep deprivation, physical exhaustion and a generalized sense of helplessness and hopelessness.”
The stress, Salcedo found, impaired McRae’s ability to function.
“In my opinion, he did not understand the wrongfulness of his conduct, and even more so, (was unable) to exercise the power of rational thought about what he had undertaken,” Salcedo wrote.
The government is seeking to exclude the testimony and findings of both psychologists, claiming they are “irrelevant, repetitive and will not aid the court in its determination of sentence.”
In a recent court filing, federal prosecutors noted that both the jury and Africk, in resentencing McRae, already rejected similar arguments.
“Your attempt to explain the inexplicable falls short,” Africk wrote at that time.
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