Roland Bourgeois mug

Roland Bourgeois, via mug

Three men who were shot in a racially motivated attack days after Hurricane Katrina struck New Orleans waited 13 years for justice. In the end, it was fleeting.

Their attacker, Roland Bourgeois, finally pleaded guilty last fall and was sentenced in February to a decade in prison. But he died within a week, before the court could even formally register his sentence.

And now, his attorney says that Bourgeois’ death means the entire case against him, including his guilty plea, should be erased from the public record — as if it never happened.

Prosecutors with U.S. Attorney Peter Strasser’s office in New Orleans scoff at that contention. In court filings, they call it an attempt to whitewash the legacy of a man who admitted under oath that he shot his victims simply because they were “darker than a brown paper bag.”

Both sides had until Thursday to file their arguments with U.S. District Judge Mary Ann Vial Lemmon. 

Bourgeois’ attorney's argument relies on an arcane legal principle known as abatement “ab initio” — meaning “from the beginning.”

Abatement calls for criminal proceedings against defendants who die while they have an appeal pending to be nullified, from indictment through conviction. The rationale is that it is unjust to allow convictions that were never tested by an appellate process to stand forever.

The principle was famously invoked in the case of former Enron CEO Kenneth Lay, who died before he could be sentenced after being convicted in 2006 of fraud related to the collapse of his supposedly multibillion-dollar company.

His estate successfully argued that the principle of abatement applied, blocking the government from seizing $44 million that prosecutors argued Lay had derived from his fraudulent behavior.

Another case involving abatement was that of former New England Patriots player Aaron Hernandez, who hanged himself in his Massachusetts prison cell while serving a life sentence for his conviction in one killing, days after his acquittal in a separate double killing.

A judge later vacated Hernandez’s conviction, noting that his suicide occurred before the appeal of his conviction was resolved.

Many believed that set the stage for Hernandez's family to collect millions of dollars that the Patriots had withheld after he was arrested. But Hernandez’s conviction was reinstated after Massachusetts’ highest court struck down the concept of abatement in that state on March 13, saying it was “outdated and no longer consonant with … contemporary life if, in fact, it ever was.”

The same day as that ruling, Bourgeois’ public defender, Valerie Welz Jusselin, filed a motion urging Lemmon to toss out Bourgeois’ conviction, citing Lay’s case as a precedent.

She noted that Bourgeois’ death on Feb. 19 occurred before a written judgment containing the sentence he received five days earlier could be entered into the record and before he could file an appeal.

She also said that while defendants who plead guilty generally waive their right to appeal, the plea doesn’t prohibit them from filing an appeal — it just makes it unlikely they would win one.

But prosecutors say Bourgeois' guilty plea is a crucial distinction. Bourgeois signed sworn documents admitting his misdeeds while Lay and Hernandez maintained their innocence, even though they were convicted at trial.

“The defendant … should be held accountable for what he swore under oath that he did,” prosecutors told Lemmon. “This court should not unwind the defendant’s admission to a crime that drew international notoriety simply because he died before filing an appeal.”

Jusselin’s arguments drew mixed reactions in the local legal community.

Donald “Chick” Foret, a former federal prosecutor, said that Jusselin appears to have the letter of the law on her side. Even defendants who admit guilt can file appeals arguing that their sentences were too harsh or their representation was ineffective, and Bourgeois died before his window to do that expired, Foret said.

“Technically, Roland Bourgeois’ appellate rights were still alive even though he was dead,” Foret said.

But Loyola University law professor Bill Quigley said Jusselin’s argument bothered him. “To legally erase such a heinous and widely known crime is going to be a real blow to the ability of our community to heal from this and … other injustices,” Quigley said.

Precisely what is motivating this push on Bourgeois' behalf is unclear. He was not ordered to pay restitution to his victims. His estate also doesn’t appear to be facing a lawsuit for damages, which theoretically could be stronger with a conviction on his record.

Federal Public Defender Claude Kelly said Jusselin's motion to abate Bourgeois' conviction simply "reflects her unwavering commitment to represent her clients and serve their interests above all others," a hallmark of the U.S. Constitution's Sixth Amendment. 

Expressing disappointment in Quigley's comments, Kelly added, "We should all be thankful that lawyers — particularly criminal defense lawyers — do not temper their client advocacy in response to social pressures as the professor’s comments suggest we should."

Bourgeois, 55, pleaded guilty in October to unjustifiably using a shotgun to deprive Donnell Herrington, Marcel Alexander and Chris Collins of their right to use a public street in Algiers Point, based on their race, days after Katrina inundated the city in 2005.

Prosecutors said Bourgeois had used racial epithets to describe black people and made threats that he would shoot any black people who ventured into his neighborhood. He received a 10-year prison sentence and died from severe liver disease Feb. 19.

Bourgeois wasn’t charged in the case until 2010. Various undisclosed medical and mental health problems affecting him led to several delays in the case.


Follow Ramon Antonio Vargas on Twitter, @RVargasAdvocate.