A bid by Orleans Parish District Attorney Leon Cannizzaro’s office to subpoena two lawyers with the Innocence Project New Orleans over their alleged coercion of two key witnesses to a 1993 murder is back on the table.
Criminal District Court Judge Franz Zibilich on Thursday delayed a retrial for Jerome Morgan to June 13 in the killing of 16-year-old Clarence Landry during a birthday party 23 years ago in a motel ballroom in Gentilly. Morgan, 40, had been scheduled to stand trial next week.
In the meantime, Zibilich said he would reconsider a recent motion from Cannizzaro’s office to subpoena Innocence Project Director Emily Maw and staff attorney Kristin Wenstrom to testify about their interviews with two witnesses who recanted their identifications of Morgan as the triggerman in Landry’s slaying.
Zibilich, who had denied that motion on Monday, calling it “outrageous,” said he is reconsidering it after taking a closer look at state law.
Assistant District Attorney Donna Andrieu has accused Maw, Wenstrom and an investigator of coercing Hakim Shabazz and Kevin Johnson to change their stories about whether Morgan did the shooting.
The two men said police steered them to finger Morgan, who was 16 when he allegedly gunned down Landry, and their recantations weighed heavily in a 2014 decision by Criminal District Judge Darryl Derbigny to vacate Morgan’s murder conviction and grant him a new trial.
Cannizzaro’s office has since charged Shabazz and Johnson with perjury over their conflicting testimony. Fearing further charges, they have exercised their Fifth Amendment right not to testify at Morgan’s new trial.
Instead, a jury will view transcripts of their 1994 trial testimony and their subsequent recantations.
Zibilich said he based his earlier decision to toss out the subpoena requests on a state law that he said seems to apply only to lawyers and their clients. Shabazz and Johnson were not Innocence Project clients when the attorneys documented their recantations in affidavits, bolstering Morgan’s successful bid for a new trial.
At a hearing last week, Andrieu cast suspicion on the circumstances behind the men changing their stories nearly two decades after they helped convict Morgan.
“It’s like for 19, 20 years they’ve been sitting and waiting for Innocence Project to come, and, voila,” Andrieu said.
Zibilich on Monday challenged Andrieu over why she hadn’t charged the lawyers with a crime for suborning perjury.
“Why don’t you step up to the plate and indict these folks?” he said.
But the judge changed his tone on Thursday, asking both sides to submit briefs before he rules on the subpoena request.
Separately, Zibilich granted a request by Cannizzaro’s office for a delay in the trial.
The judge said the six-week delay would allow time for higher courts to finally decide the “ground rules” regarding the use of transcripts from Morgan’s earlier trial and the 2013 hearing.
Rob McDuff, another of Morgan’s attorneys, complained Thursday about the postponement.
“This is just outrageous,” McDuff said. “We’ll never get this case to trial. Mr. Morgan deserves to have this ended after 20 years.”
McDuff, defense attorney Nandi Campbell and Wenstrom are slated to represent Morgan, who remains free, during the retrial, but a subpoena likely would remove Wenstrom from the case. Zibilich insisted that he would grant no further delays.
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