Federal prosecutors have dropped their case against a former New Orleans police officer who was initially convicted, then granted a new trial in an alleged cover-up of the fatal shooting of Henry Glover four days after Hurricane Katrina made landfall.
Along with the acquittal in a December retrial of the shooter, former NOPD officer David Warren, the decision by the U.S. Department of Justice and U.S. Attorney Kenneth Polite Jr.’s office leaves only one officer still convicted among the three whom a jury found guilty in a 2010 trial. Two other cops were acquitted.
Gregory McRae, who admitted to setting Glover’s shot body aflame in a car on the Algiers levee, continues to fight for a new trial, arguing in part that new evidence points to a nefarious campaign by federal prosecutors that tainted the jury.
In a case that horrified the city, federal prosecutors in the 2010 trial painted a picture of a man shot and killed unjustifiably by a police officer in a near-empty city, then burned by another cop, with still other officers helping to cover it up. But in the subsequent proceedings, that narrative has nearly disintegrated.
Following the request by federal prosecutors, U.S. District Judge Lance Africk signed a three-sentence order Thursday dismissing “with prejudice” the charges against Travis McCabe contained in a 2010 indictment, meaning he can’t be tried again. Africk also ordered McCabe’s release from bond.
McCabe had been slated to be retried March 10 for his alleged role in covering up Glover’s shooting outside an Algiers strip mall on Sept. 2, 2005.
Africk had granted McCabe a new trial in 2011, finding that newly discovered evidence — an early draft of a police report on the shooting — would “probably produce a jury acquittal” on allegations he doctored the official report about Warren firing his gun.
Warren acknowledged firing his rifle at a man that day, but initially maintained he missed. As the Glover investigation proceeded, Warren accepted that he shot and killed the Algiers man, but insisted it was because he was afraid for his life.
Prosecutors accused McCabe of helping rewrite a report drafted by another cop to obscure evidence that Warren hit the man he fired at and to insert language justifying the shooting. But Africk found the draft report’s contents mirrored the final report, casting doubt on that claim.
The draft report was found after the 2010 trial in the records of Warren’s attorneys. Warren said he received it in December 2005 from former NOPD Sgt. Purnella Simmons, the officer who testified that her original report was later doctored.
It is unclear why prosecutors took nearly three years to decide not to pursue the charges against McCabe, who also was accused of lying to the FBI and to a federal grand jury. Africk overturned McCabe’s conviction in May 2011.
McCabe’s attorneys could not immediately be reached for comment. Polite’s office declined to comment on the decision, and a spokeswoman with the Civil Rights Division of the U.S. Department of Justice did not immediately respond to a request for comment.
Michael Fawer, McRae’s lawer, called it absurd that his client remains the only one left to face prison time over the Glover case.
The same appeals court that in 2011 overturned Warren’s conviction, finding he was wrongly linked at trial with other officers accused in separate crimes related to Glover, left all but one count intact for McRae. The appeals court ordered McRae to be resentenced, but the bulk of his 17-year prison term would remain.
In a 31-page appeal, McRae claims he got an unfair trial because of federal hijinks that included the now-infamous online commenting scandal involving top prosecutors inside former U.S. Attorney Jim Letten’s office, plus alleged leaks of grand jury and FBI information to news reporters.
He also claims he only recently saw a psychologist’s report, produced prior to McRae’s sentencing, that found the former officer clearly showed “symptoms of post-traumatic stress disorder as a result of his experiences during and after Hurricane Katrina.”
Fawer said the decision over McCabe argues even more for his client’s conviction to be tossed, but he said he had no word from federal prosecutors about that.
“I applaud it, and I would think it makes clear why it is most unfair for my client, who in an almost concededly deranged mental state, burned the body, having nothing to do with the cover-up, wholly unaware that Warren had shot (Glover),” Fawer said.
“You can put whatever tag you want on it: bizarre, gruesome, stupid, callous. It was not criminal.”
Convictions still stand against McRae on a felony firearms count, obstruction of a federal investigation and denying a man a right to be free of unreasonable search and seizure. In court filings, prosecutors have argued against McRae’s claims that he deserves a new trial, noting that McRae used his mental state at the time as a defense.
Glover’s aunt, Rebecca Glover, said a reporter’s call late Thursday was the first she’d heard of the decision to scrap McCabe’s prosecution.
“Nobody called us and told us nothing,” she said. “I think it stinks, the fact nobody told us anything. I’m devastated by all of this.”
Glover’s family continues to pursue a change in how Glover’s death was classified by Orleans Parish Coroner Frank Minyard’s office, which ruled the manner of death as “undetermined.” The family wants it changed to a homicide. Minyard last month said he has asked Louisiana Attorney General Buddy Caldwell for guidance on whether he should take into account evidence presented at Warren’s retrial.
In the retrial, a jury acquitted Warren on civil rights and firearms charges for shooting Glover with his personal assault rifle through a gate as Warren and another officer stood watch over a Fourth District police substation at the strip mall on Gen. De Gaulle Drive.