A panel of federal appeals court judges on Tuesday overturned the second of four counts on which former New Orleans Police Department Officer Gregory McRae was convicted over the burning of a car containing Henry Glover’s body after a fellow officer shot Glover in the immediate wake of Hurricane Katrina.
The decision sends the case back to U.S. District Judge Lance Africk to again decide whether to reduce the 17-year sentence he has twice handed McRae.
A year ago, Africk declined to reduce that same sentence despite an appeals court ruling that tossed another of the charges against the former officer, who was convicted in 2010 and remains behind bars.
A 5th U.S. Circuit Court of Appeals panel on Tuesday upheld an earlier decision by Africk to deny McRae a new trial but it tossed out his conviction on a federal count of altering or destroying a record or a “tangible object” used to “record or preserve information.”
The panel found that McRae’s burning of William Tanner’s 2001 Chevy Malibu on the Algiers levee with Glover’s body inside did not amount to that particular crime, based on a U.S. Supreme Court opinion this year that mentioned the Glover case by name.
“Neither a car nor a corpse are ‘used to record or preserve information’ or are ‘similar to records or documents,’ ” Judge Patrick Higginbotham wrote in a 19-page opinion, joined by Judges James Dennis and Catharina Haynes.
McRae remains convicted on counts of using fire to commit a felony and depriving Tanner of his right to be free from unreasonable seizure. The former count carries a mandatory 10-year sentence.
In 2012, an appeals court panel tossed out a count of depriving Glover’s survivors of the right to access courts to seek redress. The court said the government had failed to specify “which of Glover’s descendants or survivors were denied access to courts, and what cause of action they lost” because of McRae’s actions.
Africk then resentenced McRae to the same 17 years, dismissing the argument that McRae was in a traumatic stupor when he drove the Malibu to the levee and set it aflame shortly after Officer David Warren shot Glover behind an Algiers strip mall.
Africk refused to accept the notion that McRae didn’t know the body he burned had been shot by a fellow officer. Africk also chided McRae for claiming “pride” as the reason he stayed quiet even after Glover’s shooting and burning came to light in 2008, three years after the events.
“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. “You did not merely burn a corpse. You, a law enforcement officer, burned a corpse to obstruct justice.”
McRae is the only one of three officers to remain convicted after a federal trial that started with five defendants and ended with convictions for three.
Africk dismissed the conviction of Lt. Travis McCabe, who is back on the force, after newly found evidence refuted the allegation that McCabe helped doctor a police report on Glover’s shooting. And after the appeals court tossed Warren’s conviction, a jury in late 2013 acquitted him in a retrial for Glover’s fatal shooting.
No date has been set for McRae to be resentenced. Africk could again stick with 207 months, or he could drop it to as low as 10 years.
“There will be a reduction, how much I don’t know,” attorney Michael Fawer said Tuesday.
“I would have preferred if they would have given him a new trial, but it’s a partial victory,” Fawer said. “I’m hoping we’re going to get at least a substantial reduction in sentence.”
Tulane law professor Tania Tetlow, a former federal prosecutor, said she doesn’t expect Africk to budge from 17 years. She noted the 10-year minimum on the use of fire count, adding that Africk applied concurrent sentences to the other two counts, one of which remains in place.
“To me it appears that the sentencing guidelines would remain untouched by this ruling and that nothing about the ruling seems likely to persuade the judge to decide differently,” Tetlow said.
While the appeals court dropped the obstruction count, Tetlow said nothing prevents Africk, as part of his sentencing decision, from finding on his own that McRae obstructed justice.
McRae admitted that he took Tanner’s Malibu from Habans Elementary School in Algiers — where Tanner had rushed Glover’s body for medical help — with every intention of burning it on the levee, armed with road flares.
In rejecting a new trial for McRae, the appeals panel dismissed an argument that he had an impaired mental state, a claim based on a more recent diagnosis of post-traumatic stress disorder. The court found that McRae failed to show how that diagnosis changed what appeared to be an intentional act.
Fawer noted that the only two counts that remain against McRae have nothing to do with what happened to Glover’s body. Depriving Tanner’s rights and using a fire to commit a felony both relate only to the Malibu at this point, Fawer said.
“It’s a lousy seizure of a car. There could have been nobody in it. He could have taken the car, pulled the body out, put it on the grass next to it and walked away,” Fawer said. “It becomes ludicrous. We’re basically endorsing a 17-year sentence for somebody seizing a car and burning it. To say it was a human being has nothing to do with it.”
The appeals court panel also rejected a familiar argument among high-profile defendants in New Orleans federal court over the last few years: that the anonymous online rantings of former senior federal prosecutor Sal Perricone tainted the verdicts.
Perricone’s anonymous, acid postings beneath Nola.com stories cost him his job and helped usher longtime U.S. Attorney Jim Letten from office in late 2012, along with his second-in-command, Jan Mann, who admitted later that she too posted caustic comments under a pseudonym.
While the panel found that Perricone’s commentary was “unprofessional, inappropriate and deserving of our condemnation,” it found that McRae couldn’t point to any evidence that it prejudiced the jury that convicted him. Nor were Perricone’s rants egregious enough for the court to presume jury prejudice, the panel found.
The decision could set up a showdown in the 5th Circuit, where a different three-judge panel seemed inclined, during a hearing in April, to uphold U.S. District Judge Kurt Engelhardt’s blockbuster 2013 decision to grant a new trial to the five NOPD officers convicted in the Danziger Bridge shooting case.
That appeals ruling remains pending. But in Engelhardt’s view, Perricone’s online commentary, mocking defense attorneys and castigating the NOPD, helped fuel a “prejudicial, poisonous atmosphere” around the Danziger case.
The two cases, from separate police-related incidents occurring days after Katrina made landfall, are different in many respects.
But if the two appeals panels take opposing views on the impact of the online posting scandal, the full appeals court may be asked to sort it out, Tetlow said.
Follow John Simerman on Twitter, @johnsimerman.