George Toca was a kid living in the Lafitte public housing complex when he scooped up a tiny rooster on the street one day and hustled it off to an empty lot near Dooky Chase’s Restaurant for safekeeping.
That’s how he got his nickname, the story goes.
And if you spotted Chicken George, you were likely to see his pal Eric Batiste there, too, at his hip.
The pair would scrape up change for french fry sandwiches that chef Leah Chase made for local kids who hung around her famous Orleans Avenue dining spot. They nailed bottle caps to their shoes and tap-danced for tips in the French Quarter.
“When I seen Eric, I seen George. They were family members that wasn’t blood,” said Hakim Dolliole, Eric’s first cousin.
“They were unseparable,” a young New Orleans police officer named Marlon Defillo told a jury a year after Eric was killed in April 1984 during a botched carjacking near the Time Saver store on South Broad Street in Broadmoor.
When the victims tried to fend off Eric in a scuffle over the car keys, his crime partner fired and froze, then ran.
He “just sort of backed up a few steps, as if he could not believe what he had done,” one of the targets of the armed robbery said at the time.
Defillo knew Eric’s mom, and he pointed the lead detective to Chicken George, who was barely 17. The young couple that the two boys had tried to rob picked George out of photo lineups. A jury convicted him in 1985 of second-degree murder. A mandatory life sentence followed, with no shot at parole.
Three decades later, with Toca behind bars at Louisiana State Penitentiary at Angola, Eric’s family and the Innocence Project New Orleans continue to proclaim his innocence, calling it a case of mistaken identity prodded by a tight childhood friendship.
But for now, that argument is on hold as Toca’s lawyers get set to fight a different battle this spring before the U.S. Supreme Court. Toca’s case has suddenly taken center stage in a legal debate that could affect about 1,000 convicted killers in Louisiana and three other states who, like him, were sentenced to mandatory life terms without parole for crimes they committed as youths.
The high court agreed last month to consider whether Toca, 47, has a right to a new hearing over his eligibility for parole. At issue is whether the court meant for its 2012 decision in Miller v. Alabama, setting rules for such no-parole sentences for juveniles, to be retroactive.
In that case, the Supreme Court ruled 5-4 that “youth matters for purposes of meting out the law’s most serious punishments,” citing “children’s diminished culpability and heightened capacity for change” when compared with adults.
In a majority opinion written by Justice Elena Kagan, the high court didn’t ban states from sentencing some young killers to life without parole. But it insisted that courts must first weigh their youth, adding that “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”
Since then, several states’ supreme courts and some federal courts across the country have determined that the decision was retroactive.
But supreme courts in four states — Louisiana, Pennsylvania, Michigan and Minnesota — have found the opposite, setting the stage for the nine U.S. Supreme Court justices to settle the issue this year.
According to the state, 272 Louisiana inmates had been sentenced as juveniles to life without the possibility of parole as of April 2013, the bulk of them having been sentenced before the ruling in Miller v. Alabama.
A spokesman for Orleans Parish District Attorney Leon Cannizzaro’s office said it would be difficult to determine how many of those cases came out of Orleans Parish.
In a hearing expected to take place this spring, Toca’s attorneys will argue that the high court’s decision marked a “substantive,” and therefore retroactive, new rule that basically outlawed mandatory life terms without parole for juveniles.
Cannizzaro’s office, meanwhile, has insisted that Miller v. Alabama marked only a “procedural,” and thus not retroactive, change in how juveniles are sentenced, inasmuch as judges can still sentence juveniles to life without parole.
The DA’s Office also has argued that applying the 2012 decision retroactively is simply impractical, as local judges would be tasked with trying to revisit the state of a juvenile’s mind years later.
Without a 30-year-old psychological exam to review, “evidence as to Toca’s ‘diminished culpability and heightened capacity for change,’ ” the DA’s Office argued in a legal brief, “is likely nonexistent.”
Evidence of redemption?
Toca’s attorneys argue that there’s nothing hypothetical about Toca’s capacity for redemption. They point out that the former high school dropout has earned a college degree behind bars with above-average marks.
Besides a bachelor’s degree in Christian ministry from New Orleans Baptist Theological Seminary, Toca has a diploma from an intensive carpentry program.
His record behind bars shows occasional disciplinary problems, though recent years have seen just a handful of small-time infractions.
“His case perhaps presents the quintessential example of why (the Miller ruling) should be retroactive. No purpose is served by keeping George Toca in prison,” said Emily Maw, director of the Innocence Project New Orleans.
“There are scores of George Tocas around the country. If you look at what Miller says, life without parole should be reserved for the really awful, despicable cases, not a botched armed robbery,” Maw added. “If George Toca was guilty of the crime, which he is not, the nature of the crime was a stupid kind of crime. Kids trying to rob someone shouldn’t mean going to prison for the rest of their lives.”
The argument from Cannizzaro’s office — that a judge would need to revisit distant history to discern a long-ago juvenile’s capacity for change — is “absurdly technical,” Maw said, given that judges can simply look at the person’s prison history instead.
“That’s a much easier exercise than sentencing someone who’s a juvenile now,” she said.
One opponent of requiring states to grant new sentencing hearings for old juvenile lifers said the U.S. Supreme Court has reserved retroactivity for drastic situations. Cases such as Toca’s don’t fit the bill, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation.
“The assessment of what they’ve done in prison for 20 years is properly considered as part of clemency, and not part of sentencing,” Scheidegger said. “Sentencing is for what a person deserved at the time he did it. There really is no such thing as life in prison with no possibility of parole. There’s always the possibility of clemency.”
Actual innocence, too, is an exception, he noted.
Guilt not at issue
But the U.S. Supreme Court has made clear that when it hears Toca’s case, probably in March, it will not consider evidence that Toca’s attorneys say shows he was wrongly convicted.
That evidence includes numerous statements from friends and family members of Batiste who say Chicken George had left Eric and others at a dance at the Superdome hours before Eric was shot, to check into a Mid-City motel for sex.
Testimony during Toca’s trial from employees of the MRV motel on Ursulines Avenue, saying the motel would never rent to minors, was self-serving and bogus, other witnesses later insisted.
Witnesses also have since pointed to another friend of Eric’s, Edison Learson, as the actual shooter. Some said he acted hysterically after Eric’s killing, and a former girlfriend and others claim he admitted to accidentally shooting Eric.
Learson, who has since amassed a lengthy criminal record in California, could not be reached. He was in San Quentin State Prison when Toca’s case came before a judge in 2010 for a post-conviction hearing, and he sent word in a letter that he would stay silent if called to testify.
Toca’s attorneys also have cast doubt on the reliability of the witness identifications of the shooter, noting that Toca — then 5-foot-5 and 125 pounds — was much smaller than the size estimates of both witnesses before they fingered him in photo lineups.
The evidence and testimony failed to convince Criminal District Court Judge Julian Parker, who refused Toca’s bid for a new trial. Parker declared the theory of a different shooter “unworthy of belief,” according to a Times-Picayune story.
That view galls Batiste’s family, which wants nothing more than to see his best friend set free.
Joyce Dolliole, Eric’s aunt, said she and other family members never believed Chicken George shot his friend, even accidentally. She said she’s maintained contact with Toca for years while he’s been at Angola.
“A chance to live life’
Dolliole sat at a table in her Avondale home last week, sifting through old childhood photos of her deceased nephew.
She said the whole neighborhood knew that George wasn’t there when Eric was killed, but fear kept people from talking.
“We’re not fighting for the righteousness of Eric,” said Dolliole, 76. “We can finalize Eric’s death if the wrong that was done to George is undone. I don’t care if they get the right person. My concern is George coming home and getting a chance to live life.”
Though the high court won’t consider Toca’s innocence claim, the claim may have influenced the court’s decision to pick his case to decide the retroactivity issue, after refusing at least two other similar petitions, said Cara Drinan, an associate professor of law at Catholic University of America.
“I can’t think it’s a coincidence that this is a claim of actual innocence,” Drinan said. “Facts matter. If the court is going to find Miller is retroactively applicable, it certainly behooves the court for it to be a more sympathetic defendant.”
Maw noted that judges can take into account “residual doubt” in sentencing decisions, even after a jury convicts.
Dolliole recalled that Eric’s family members learned of Chicken George’s arrest on the day of the funeral.
She said none of the family members attended the murder trial a year later because no one told them it was happening.
“Had we known, we would have been there, screaming and hollering like we’re screaming and hollering now,” she said.
No one but police ever suspected Chicken George, she said, then or now.
“The only thing he’s guilty of is being close friends with Eric,” she said. “The boy did not kill my nephew. If it would have been an accident that he shot Eric, he would have turned around and shot himself.”
Follow John Simerman on Twitter, @johnsimerman.