A Tragedy of Errors: The corkscrew case of Rogers Lacaze

In "Case in Point," Andrew Cohen examines a single case or character that sheds light on the criminal justice system. An audio version of Case in Point is broadcast with The Takeaway, a public radio show from WNYC, Public Radio International, The New York Times, and WGBH-Boston Public Radio.

Pretend for a moment that you are an 18-year-old black man in Louisiana in 1995 and you've been charged with murdering a white police officer and 2 others, the children of the owner of the restaurant where the crime took place. It's sensational news in New Orleans in part because you have a co-defendant in the case, herself a police officer, Antoinette Frank, who immediately implicates you in the crime. Prosecutors seek the death penalty against you and your judge sets your capital case for trial just over 4 months after the crime.

You have a defense attorney who has never tried a death-penalty case before and who agrees to do so in exchange for your family's promise to give him a used car. Unsurprisingly, the defense he offers on your behalf is feckless from the start. He does not raise the question of prejudicial pretrial publicity or challenge much of the evidence prosecutors seek to use. He does not move to suppress statements you tell him were made only after the police beat you during an interrogation. He tells the court he won't challenge the government's eyewitness identification of you at trial, a critical concession. Nor does he undertake any investigation into any mitigating factors that might spare your life. (After trial, such an investigation shows your IQ is 71).

Things get worse from there. Your lawyer says he is getting death threats and wants to get paid. Then, on the morning of your trial, your lawyer and the judge get into an argument. Your lawyer compares the case with the O.J. Simpson murder trial, then at its zenith, and the judge doesn't like it. So he holds your attorney in contempt of court and gives him a 6-month jail sentence and a $500 fine, with the sentence suspended until after the trial. Your lawyer asks to withdraw from the case. The judge orders him to stay, and the trial begins.

Jury selection takes just a few hours. It is over in time for lunch on the first day. Neither your attorney, nor an attorney assisting him, asks any of the potential jurors questions about their views of the death penalty. Instead, your attorney moves to have the trial judge, the one who held him in contempt, recused from the case. That doesn't go so well, either. The judge stays and now there is clearly tension between him and your lawyer.

The case against you is not compelling. The murder weapon was never found. There is no physical evidence linking you to the crime scene. 2 surviving witnesses to the shooting do not identify you as the shooter. Indeed, it appears more likely that your co-defendant, that rogue cop, was the shooter. None of this matters. You made 2 incriminating statements to the police while in custody after detectives failed to read you your Miranda rights against self-incrimination. At trial prosecutors don't appear to challenge your lawyer's assertion that you were coerced, intimidated, and even beaten into "confessing." To prosecutors, your co-defendant's pointed finger and your incriminating statements are enough, even though you stopped short of confessing to the crime.

The trial begins on July 17, 1995 and ends three days later with a guilty verdict against you. Deliberations take precisely 1 hour and 36 minutes, according to court records. 1 day after that, the same jury that so quickly convicted you recommends you receive the death penalty.

Your name is Rogers Lacaze, the above narrative comes from the trial and appellate record in the case, and just like that you are headed for Louisiana's notorious death row. You also are headed for more than 2 decades of head-twisting post-trial litigation, the latest twist earlier this month from the U.S. Supreme Court.

What Lacaze and his trial lawyer did not know at the time of his conviction was that the jury that so quickly convicted him and sentenced him to death included at least 3 people with evident conflicts of interest that were not disclosed to the judge or to any of the attorneys. Police and prosecutors, meanwhile, who were in a position to know about some of these conflicts, remained silent as well and then later defended the inclusions of these jurors in the case.

One juror, a man named David Settle, was employed by the Louisiana State Police at the time of the trial. He had been a law enforcement officer for more than a decade. Another juror, Lillian Garrett, had lost her 2 brothers to murder in New Orleans. 1 of her brothers died the same way one of the victims in the Lacaze case had died-- with a gunshot to the head. Remember, the trial on which she was sitting in judgment involved the murder of 2 siblings.

A 3rd juror, a woman named Victoria Mushatt, was a police dispatcher with the New Orleans Police Department, the very same department whose officer was both a victim and a co-defendant in the Lacaze case. She was on duty in the dispatch room when the 911 call came in for the murders on which the case was based. Mushatt attended the funeral for the police victim in the case and was the wife of another NOPD officer. She also knew the police witnesses who incriminated Lacaze.

Each of these 3 jurors was asked during jury selection to disclose any connections they had to law enforcement or to the victims of crime. In Settle's case, he remained silent even as other prospective jurors around him conceded their connection to local police and left the panel. Mushatt originally did disclose that she was a 911 dispatcher and was told by the judge to say so again if she made it to individual questioning. But she did not do so. Garrett, meanwhile, was asked three times if she had any connection to any crime victims. 3 times she said nothing.

Lacaze's attorneys discovered most of this within 5 years of his conviction. For the past 17 years they have been arguing that their client could not possibly have received a fair trial from jurors who were unable or unwilling to follow the trial judge's rules or disclose clear conflicts of interest. And for the past 17 years the Louisiana Supreme Court has refused to acknowledge error or grant relief to Lacaze. In 2015, for example, a trial judge ordered a new trial based on this jury misconduct. The judge also set aside the death sentence because Lacaze's attorney had failed to investigate any of those "mitigating" factors that are evaluated in the sentencing phase of a capital trial. Louisiana has given up on the idea of executing Lacaze (although he remains on the state's death row). But the justices on the state's high court overturned the grant of a new trial.

If these were the only major shortcoming in Lacaze's trial, they would be enough for most courts to grant a new trial. But the problem with Lacaze's jury is only the half of it. It took about 14 years for defense attorneys to figure out another serious flaw in the trial and it is this flaw that ultimately may force the Louisiana court to finally give Lacaze the new trial he seeks.

Orleans Parish Judge Frank Marullo, the same judge who had held Lacaze's lawyer in contempt, and who had presided over the botched jury selection, was at the time of the trial under investigation for his own role in providing the murder weapon to Lacaze's co-defendant, the police officer Antoinette Frank. The judge not only did not recuse himself but did not disclose the problem to defense attorneys before or during the trial to allow them to seek his recusal. Worse, he may have disclosed his conflict in a private meeting with prosecutors (a meeting he also didn't disclose to the defense).

Marullo allegedly had signed an order authorizing the release of two weapons from the New Orleans Police Department's property and evidence room. Those guns, including the murder weapon, had found their way into the hands of Officer Frank through another cop named David Talley, who evidently gave the weapon to Frank as a favor. When Marullo was questioned about the order he denied signing it, essentially accusing Talley of forging his signature.

Investigators tried before and during the trial to get handwriting samples from him to compare with the signature on the order authorizing the release of the guns. He refused, arguing that he could not do so because he was busy presiding over the Lacaze case.

None of this convinced Louisiana's courts that Lacaze's trial was fatally flawed. Last week, however, Lacaze got a measure of good news. His current attorneys took the case to Washington in March, claiming that the Louisiana courts had applied the wrong legal precedent to his claims. The U.S. Supreme Court, without even hearing oral argument in the case, ordered the Louisiana high court to reevaluate its prior rulings in the case. It wasn't the jury misconduct that caught the attention of the justices. It was the judge's alleged malfeasance.

In March, in a Nevada case, the justices had overturned a murder conviction and death sentence in a case in which the judge was being investigated by prosecutors as part of a federal bribery probe. "Under our precedents," the justices wrote, "the Due Process Clause may sometimes demand recusal even when a judge 'has no actual bias.' Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable."

Will the Louisiana Supreme Court concede that Lacaze got nothing close to a fair trial? It may be another few years before we find out. The justices in Washington did not order the state court to give Lacaze a new trial. So there will likely be a new round of briefs, and a new round of hearings in New Orleans, and a new round of judicial opinions as the curious case of Rogers Lacaze rolls into its 3rd decade. No one I talked to about the case said they'd be surprised if the case found its way back to Washington before it's finally resolved.

Source: themarshallproject.org, Andrew Cohen, October 16, 2017

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde