Louisiana prosecutors: Angola 3 prisoner Albert Woodfox should be tried a third time _lowres

This undated photo provided by the International Coalition to Free the Angola 3 shows Albert Woodfox. Prosecutors sought to keep Woodfox, the last of the "Angola Three," behind bars Tuesday, June 9, 2015, despite a federal judge's order to immediately release him after 43 years in isolation, a longer period in lockdown than any other living U.S. prisoner. Woodfox was one of several prisoners accused of killing Brent Miller, a 23-year-old guard at the Louisiana State Penitentiary, in Angola, La., in 1972. (Courtesy of International Coalition to Free the Angola 3 via AP)

Prosecutors implored a federal appeals court Wednesday to reverse an unusual lower court ruling forbidding the state from retrying Albert Woodfox, one of the so-called Angola 3 prisoners, for a third time in the 1972 murder of a Louisiana State Penitentiary guard.

New Orleans lawyer Rick Stanley, arguing for Attorney General Buddy Caldwell, told a three-judge panel of the 5th U.S. Circuit Court of Appeals that, despite hurdles, the state has “a strong and legitimate interest” in again prosecuting Woodfox, a 68-year-old in declining health, in the slaying of Brent Miller.

He sought to assure the judges that the racial discrimination that marred the grand jury process in Woodfox’s first two indictments has been corrected, and that Woodfox would receive a fair trial, even though many of the witnesses in the case have died.

“All of us age, some of us get sick, but there’s never been one of us who is not answerable to the law,” Stanley said. “There is no statute of limitations for the crime of murder.”

One of Woodfox’s lawyers, George Kendall, countered that Woodfox should be released from custody, as ordered by a federal judge this year, due to a confluence of factors that make this a “once-in-a-generation type case, where there should not be further proceedings.”

Woodfox, he said, has been “harshly, harshly punished,” spending an unprecedented four decades in solitary confinement.

“He’s in the final chapter of his life,” Kendall said. “He doesn’t have much more time left, and he shouldn’t be made to run the gauntlet again.”

Woodfox is the last survivor of the Angola 3, a trio of prisoners who became a cause célèbre because of long stretches in solitary confinement at the state penitentiary.

Their cases have drawn international media attention in recent years, largely because of the controversy over housing prisoners in 23-hour lockdown in single cells, but also because of recurring questions over whether the Angola 3 — former members of the Black Panthers movement — were innocent of the jailhouse killings for which they were found guilty.

Woodfox and his co-defendant, Herman Wallace, were convicted in the stabbing death of Miller, a killing that happened amid a prison riot. Their defense attorneys maintained the state’s case was thin and rested upon what Stanley described as the “sketchiest of witnesses,” including at least one prisoner who allegedly was offered a host of incentives to cooperate.

Prosecutors sought to retry Wallace in 2013, obtaining a new indictment against him shortly after a judge vacated his conviction. Wallace, 71, had terminal liver cancer at the time and died days after his release.

The group’s other member, Robert King Wilkerson, was found guilty of killing a fellow inmate in 1973 but was released in 2001 after his conviction was reversed. He, too, had been held in solitary confinement for decades.

Woodfox was convicted of Miller’s murder in 1973 and again in 1998, though both jury verdicts were thrown out by the federal courts on the basis of racial discrimination in the grand jury process.

Caldwell’s office has asked the 5th Circuit to decide whether U.S. District Judge James Brady, of Baton Rouge, overstepped his bounds in June when he not only ordered Woodfox to be released but barred the state from prosecuting him again. In his ruling, Brady cited Woodfox’s age and health, the unavailability of several key witnesses and Brady’s own “lack of confidence in the state to provide a fair third trial.”

The 5th Circuit temporarily blocked Woodfox’s release a day after Brady’s ruling.

Woodfox’s attorneys have sought to highlight the lack of forensic evidence against their client and what they describe as a shoddy investigation. “Although the crime scene was bloody — corrections officer Miller had been stabbed 32 times — no physical evidence pointed prison officials toward Woodfox,” they wrote in their brief to the appeals court.

Stanley, however, said such arguments would be more “properly made to a state court jury” during a retrial. He said the death of certain witnesses would not necessarily exclude their statements, and alluded to other possible witnesses who have not previously been called to testify.

On Wednesday, the appellate panel gave little indication of how or when it might rule. Two of the judges — James Dennis and Priscilla Owen — asked no questions of the attorneys. The third, Judge Carolyn Dineen King, made a few inquiries about Woodfox’s current confinement.

Amnesty International issued a statement Wednesday saying that Brady’s ruling “should have been the final chapter in Albert’s 43-year nightmare” and calling on Caldwell “to act in the name of justice rather than vengeance.”

“Now we can only hope that the courts will finally provide Albert some measure of justice,” the organization said.

Aaron Sadler, a Caldwell spokesman, said the attorney general is confident the 5th Circuit will allow the state to present the case to a jury, adding that Miller and his family “deserve that opportunity.”

“Today’s hearing was another step toward obtaining justice for Corrections Officer Brent Miller and ensuring that an inmate with an extensive history of violent crimes is held accountable for that brutal murder,” Sadler said.

Follow Jim Mustian on Twitter, @JimMustian.