November 30, 2013 11:44:38 PM
NEW ORLEANS -- Three years after his manslaughter conviction, a former New Orleans police officer is getting a second chance to persuade a jury that he was justified in fatally shooting a man outside a strip mall during Hurricane Katrina's chaotic aftermath.
David Warren, whose retrial is scheduled to start Monday, was one of 20 officers charged in a series of federal investigations of alleged police misconduct in New Orleans. His December 2010 conviction was touted as a major milestone in the Justice Department's ambitious efforts to clean up the city's troubled police department.
Warren was one of the first to be tried. He will also be the first of several officers to get a retrial as federal prosecutors -- dogged by misconduct allegations of their own -- try to salvage cases that many viewed as catalysts for healing the city's post-Katrina wounds.
Five of the 20 officers pleaded guilty and are serving prison sentences.
Of the others, three were acquitted while seven had their convictions overturned and await retrials. Four had their convictions upheld. A prosecutor's ill-advised remark led to a mistrial for another officer.
Metropolitan Crime Commission president Rafael Goyeneche, whose watchdog group frequently provides federal authorities with information about alleged police misconduct, said prosecutors' setbacks may only be temporary.
"History is yet to be written because the dust hasn't settled," he said. "If this was a report card, you would give it an 'I' for 'Incomplete.'"
The same jury that convicted Warren of fatally shooting 31-year-old Henry Glover also convicted another officer, Gregory McRae, of burning Glover's body in a car after a good Samaritan drove the dying man to a makeshift police headquarters. A third former officer, Travis McCabe, was convicted of writing a false report on the shooting.
Warren was serving nearly 26 years in prison when a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled he should have been tried separately from four other officers charged with participating in a cover-up to make Glover's shooting appear justified.
The panel agreed with Warren's lawyers that the "spillover effect" of evidence about the cover-up, including emotional testimony about the burning of Glover's body and photos of his charred remains, denied him a fair trial.
Warren's lawyers have urged U.S. District Judge Lance Africk to hold the retrial somewhere other than southeast Louisiana, saying the jury pool has been tainted by extensive media coverage.
Warren's attorneys said some of the prospective jurors who filled out a questionnaire from the court mistakenly believed Warren was one of the officers involved in deadly shootings on a bridge that also occurred in Katrina's aftermath.
In September, U.S. District Judge Kurt Engelhardt cited allegations of "grotesque" prosecutorial misconduct in ordering a new trial for five former officers who were convicted of civil rights violations in the shootings that killed two unarmed residents and wounded four others on the Danziger Bridge. The judge said at least three government attorneys posted anonymous comments on a New Orleans newspaper's website, creating a "carnival atmosphere" that perverted justice in the case.
Engelhardt's ruling didn't focus on the substance of the charges against the officers, Goyeneche noted.
"The jury spoke. The jury assessed the facts and the evidence and concluded they were guilty," he said.
Jurors didn't get a chance to pass judgment on Gerard Dugue, a retired sergeant who was tried separately on charges he engaged in a cover-up of the bridge shootings. Engelhardt declared a mistrial, ruling that lead prosecutor Bobbi Bernstein may have tainted the jury when she mentioned the name of a man who was beaten to death by a police officer in an unrelated case.
The jurors who convicted Warren, McRae and McCabe also acquitted two other former officers of charges related to the alleged cover-up of Glover's death.
During his first trial, Warren testified that he thought Glover had a gun when he shot him with an assault rifle from a second-floor balcony at the strip mall. He was guarding a police substation at the time. Prosecutors said Glover wasn't armed and accused Warren of shooting him in the back.
Shaun Clarke, a Houston-based defense attorney who once worked as a federal prosecutor in New Orleans, said it could be tougher for prosecutors to convict Warren a second time because jurors won't be hearing testimony about the "ghoulish" nature of the cover-up. Prosecutors also are hamstrung by the lack of physical evidence, due to the burning of Glover's body, he said.
"It's a big gap in the government's case," Clarke said.