Ex-cop McRae’s sentencing delayed _lowres

Associated Press file photo by Cheryl Gerber -- Gregory McRae as he entered federal court in New Orleans in December 2010.

The defense attorney for Gregory McRae, a former New Orleans police officer who burned Henry Glover’s body in the aftermath of Hurricane Katrina, implored a federal judge this week to show mercy in resentencing McRae, suggesting a 10-year term would reflect both the seriousness of the crime and the catastrophe during which it was committed.

The attorney, Mike Fawer, contended in court filings that a decade behind bars actually would be “unwarranted,” but he acknowledged that is the mandatory minimum sentence McRae faces Tuesday when he returns to U.S. District Court to learn his fate.

He described McRae’s torching of Glover’s remains as “an act of desperation” by a man suffering from post-traumatic stress disorder, saying the officer “reacted spontaneously to the horror of rotting corpses abandoned in the post-Katrina blistering heat.”

“There is no need for imprisonment to protect the public or for deterrence,” Fawer wrote. “As this court knows full well, McRae is not going to burn another corpse.”

Federal prosecutors, meanwhile, are pushing for a far longer punishment, telling U.S. District Judge Lance Africk in a recent court filing that jurors “rejected any suggestion that McRae burned Mr. Glover because of post-Katrina stress, and rather definitively determined that he acted to cover up an unjustified police shooting.”

Objecting to the presentence investigation report, they argued McRae should not benefit from the December acquittal of David Warren, a fellow officer who fatally shot Glover in September 2005 at an Algiers strip mall.

“By burning Glover’s body, McRae prevented a full autopsy from being conducted, during which the direction and trajectory of Warren’s bullet could have been conclusively determined,” the prosecutors wrote. “The burning of Glover’s body prevented the Coroner’s Office from even classifying the death as a homicide.”

McRae, a 26-year veteran of the Police Department, has admitted he believed Glover to be a homicide victim, but he has insisted he did not know the man had been shot by Warren and he has denied burning the body as part of a police cover-up. He testified he had seen other corpses decomposing after the storm and did not want that to happen with Glover, so he drove a vehicle containing his remains to the Algiers levee and ignited it with flares, firing at least once into the car to ensure it burned.

McRae, 53, was one of three NOPD officers convicted in the Glover case — two others were found not guilty — but he is the only one still behind bars. Warren was convicted in 2010 and sentenced to 25 years, but a federal appeals court held in 2012 that his case was prejudiced by the fact he stood trial with several co-defendants. He was found not guilty of civil rights charges at a retrial late last year.

Another officer, Lt. Travis McCabe, had his conviction set aside after a draft police report was discovered that appeared to contradict federal prosecutors’ claim he had doctored a report to make Glover’s death seem like a justifiable shooting. Federal prosecutors decided not to retry McCabe, who has since rejoined the NOPD.

McRae initially was sentenced to 17 years in prison, but the 5th U.S. Circuit Court of Appeals vacated one charge for which he was convicted while upholding his convictions for using fire to commit a felony, obstructing a federal investigation and denying a man’s right to be free of unreasonable search and seizure.

In resentencing McRae nearly nine years after Glover’s death, Africk will be asked to revisit a now familiar defense of police officers prosecuted for misconduct in the lawless wake of the storm. The judge will decide whether those trying circumstances should mitigate McRae’s punishment and justify a downward departure from the federal sentencing guidelines.

McRae wrote Africk a four-page letter this week that offered a window into his post-Katrina travails, a chapter of his life he described as “a living hell.” Saying he did not expect anyone to understand his reasoning or state of mind, he recalled the countless corpses he encountered during his efforts to rescue people marooned by floodwaters. “The sight and stench was, and still is, unfathomable,” McRae wrote, adding that the storm “overturned the order of many souls.”

After four days with almost no sleep, he wrote, he had been “simply too exhausted to think” and burned Glover’s body for reasons of “sanitation, hygiene and what I had experienced.”

“It was the totality and the accumulation of these experiences that left an indelible mark on my senses,” he wrote.

Prosecutors, who referred to the burning as “barbaric,” wrote Africk that jurors heard evidence that McRae had laughed after igniting Glover’s body. The only stench they acknowledged was one “of a cover-up,” reminding Africk of words he previously used to describe McRae’s actions.

And despite Warren’s eventual acquittal, the prosecutors said they presented sufficient evidence during the initial trial to prove “by a preponderance of the evidence that Glover’s death constituted manslaughter” — a characterization that, if accepted by Africk, could significantly impact McRae’s sentence. They noted that McRae faces at least 10 years in prison on one count, a mandatory minimum penalty that will run consecutive to whatever sentence he receives on the other two charges.

Africk has received letters from several of McRae’s family members and former colleagues, most of whom asked the judge to view McRae’s shortcomings through the lens of Katrina and the context of an otherwise stellar career.

“Everyone has his or her own Katrina story, and I dare say that the police stories are among the most harrowing,” wrote Christy Williams, a retired NOPD lieutenant. “Some of the saddest things that I have ever seen and experienced during my life occurred during that time.”

Timothy P. Bayard, a retired NOPD captain, asked Africk to consider McRae’s role “in saving numerous lives from the putrid waters of Katrina.”

Retired Lt. Bryant Wininger recalled McRae appearing disheveled and having “the thousand-yard stare” when he encountered him on Canal Street at a time when “stores were being looted and a building set on fire.” Wininger said he still wonders whether he should have “pushed” to secure some down time for the likes of McRae and Sgt. Paul Accardo, one of two officers who committed suicide in the days after the storm.

The judge also received letters from McRae’s family, including an emotional plea from his wife, Gayle Mayeux McRae, who is battling cancer.

“It is tragic that so many families were impacted due to a set of events that spiraled out of control during one of the city’s worst natural disasters,” she wrote. “Our wish for them is for peace and healing and a sense that justice has been served by the amount of time Greg has been incarcerated.”

Follow Jim Mustian on Twitter, @JimMustian.