Prosecutors celebrated when a jury in 2010 convicted three New Orleans police officers for their roles in the post-Hurricane Katrina killing of Henry Glover and the ensuing elaborate cover-up, which included burning his body in an attempt to mask what investigators said was a bad shot by a rookie cop.
Then-U.S. Attorney Jim Letten called the jury's verdict "a positive moment for the city." New Orleans' top FBI agent at the time said the convictions were one of his proudest accomplishments.
But two years later, an appeals court found fundamental flaws with the proceedings, setting the stage for a new trial that opens Monday (Dec. 2) in the same federal courthouse where two families torn by post-Katrina chaos will return to hear the horrific details one more time.
David Warren, a father of five who was originally sentenced to 25 years in prison, will again try to convince a jury that he was in fear for his life when he fired his personal assault rifle, and that he didn't know the bullet struck Glover, a 31-year-old father of four from Algiers.
This time, the officers who stood trial for falsifying reports, burning Glover's body and abandoning it in a torched car found atop the Algiers levee will not be present. Evidence used against them was unfairly prejudicial to Warren, the appeals court ruled.
So Warren will stand trial alone.
"The new trial will be about Mr. Warren's conduct in connection with the alleged shooting," Warren's defense attorney Rick Simmons said Friday. "We argued to exclude a number of these things that he wasn't responsible for ... so hopefully the jury will see only his actions."
Without the backdrop of a cover-up so grisly it remains one of the most egregious instances of police misconduct in New Orleans history, will prosecutors be able to once again secure a conviction? Legal experts disagree.
Glover's killing was one of several instances of grave police misconduct in the immediate aftermath of Katrina, including the killing of two unarmed civilians and the wounding of four others on the Danziger Bridge. Federal prosecutors secured civil rights convictions after pursuing the cases for several years. But they've suffered setbacks, including court orders granting new trials for five of the Danziger Bridge defendants, and for Warren and another officer in the Glover case.
On Sept. 2, 2005, Warren was standing guard at a detective bureau on Gen. de Gaulle Drive in Algiers when Glover and another man, Bernard Calloway, drove up to the parking lot in what Warren believed to be a stolen truck to raid a shopping cart full of stolen goods.
Earlier that afternoon, Warren had fired a warning shot with the same weapon toward another man he thought seemed suspicious. During testimony at the 2010 trial, Warren admitted that firing the warning shots was a violation of NOPD rules.
When Glover and Calloway came around, Warren said he feared for his safety after the two men ignored his command to get back and charged toward a gate surrounding the strip mall. Warren said he saw an object in Glover's hand before he fired. Warren also said he thought he saw Glover reach toward his waistband, possibly to retrieve a weapon.
Warren was on a second-floor balcony and fired off a round. He has maintained that he thought he missed Glover. But Warren's partner for the day, officer Linda Howard, testified that Warren hit his target and was made well aware of it in the immediate aftermath. Prosecutors say Glover was unarmed and posed no threat.
Warren said the man ran away, and that he didn't even learn Glover's name until months later.
After fleeing the strip mall, Glover collapsed in the street. Calloway and Glover's brother, Edward King, who came running from down the block to help, flagged down a passing driver named William Tanner, who gave the men a ride. Tanner drove to Habans Elementary School just a half-mile away from the strip mall, where the NOPD had set up an emergency compound. There was no time to get Glover to a hospital.
Henry Glover murder trailEdna Glover holds a picture of her slain son Henry Glover as she and other supporters gather outside federal court in March 2011 after sentences were handed down to two former NOPD officers. (Photo by Michael DeMocker, NOLA.com | The Times-Picayune archive)
When the men arrived at Habans, officers of the SWAT team, including officer Greg McRae and Lt. Dwayne Scheuermann, encountered them. Calloway, King and Tanner said they wound up beaten and in handcuffs, while Glover remained in the back of the car. At some point, McRae hopped into the driver's seat and drove away with Glover in the back seat.
McRae drove the car over the levee and down a ramp, tossed a road flare into it, closed the door and walked back up the levee toward Scheuermann, according to trial testimony. Seeing the flare dying out, he walked back and fired a shot into the rear windshield, prompting a full-blown blaze. McRae testified that he later told Scheuermann, he "wasn't going to let it rot."
Glover's remains weren't identified for seven months. In 2008, federal authorities stepped in to investigate.
A three-month trial started in December 2010. It wasn't a clean sweep for prosecutors. But some of the most serious charges stuck.
The jury believed Warren was responsible for Glover's death and for depriving him of his civil rights. Jurors also agreed that McRae burned the body and car, and that Lt. Travis McCabe falsified police reports about the events and lied to federal investigators.
Scheuermann was acquitted on charges of obstruction of justice and violating the civil rights of two of Glover's companions, whom he was accused of beating after they brought the injured man to the school. Former Lt. Robert Italiano, who was the supervisor of the 4th District detective bureau, was acquitted of charges that he participated in the cover-up.
"There shouldn't be any trial," Glover said. "They went to court already, and [Warren] already admitted to shooting Henry, so what is this really about? The facts don't change. He owned up to it, it's in the court record. Why do we need to go down this road again? Why are we living through this nightmare again?"
In a unanimous ruling in 2012, a three-judge panel of the 5th U.S. Circuit Court of Appeals said Warren was unfairly tried with the others. Warren's defense attorneys tried to separate his case ahead of the 2010 trial, but U.S. District Judge Lance Africk refused.
The judges ruled that Warren's defense was tainted because he was forced to share an indictment and a courtroom with those responsible for burning Glover's body, abandoning Tanner's car and producing falsified incident reports.
"The most compelling prejudice, in our mind, resulted from the evidence, testimony and photographs presented in connection with the government's case against McRae for the burning of Glover's body, all of which had an effect of associating Warren with the burning of Glover's body and cover-up," the 60-page appeals court ruling says.
This time, the defense is hoping to keep the most disturbing pieces of evidence of the post-shooting police misconduct out of the courtroom.
Warren's attorneys Simmons and Julian Murray have asked the judge to exclude anything related to beatings at Habans, Tanner's car and false police reports. And they also asked the judge to ban prosecutors from showing jurors any photos of Glover's burned body, which the appeals court ruling refers to as a "bag of bones."
The defense also is attempting to suppress evidence regarding Warren's National Rifle Association membership and affinity for firearms. During the first trial, prosecutors portrayed Warren as a gun enthusiast who rarely missed a shot, in order to discredit Warren's claim that he missed Glover.
Africk is expected to rule on those questions during trial.
"This is a much harder case for the government than the one they tried before," said former federal prosecutor Shawn Clarke, who is now a defense attorney based in Houston. "The prosecution clearly wanted to place the shooting in the context of the other ghoulish misconduct, and they're not going to be able to do that this time around. By contrast, the defense wants to place it in the context of a police officer in an almost unprecedented condition of civil disorder having to make, if not a split-second decision, certainly a decision under less than optimal circumstances.
"An after-the-fact cover-up can't help but taint the antecedent conduct," Ciolino said. "The jury that will hear Mr. Warren's case this time will evaluate his conduct standing alone rather than standing in the shadow of a malignant cover-up.
"He has a real chance of acquittal -- a rarity for a Camp Street defendant."
One likely defense strategy will be attempting to discredit key government witness Howard, the officer who was at the strip mall and gave eyewitness testimony. She told authorities Warren intentionally fired and struck Glover that day.
But she also has given several different accounts of that day's events. The first time she spoke to investigators, Howard maintained that she didn't see Warren shoot anybody.
Howard has said she was traumatized by the storm and its aftermath, and at the time of one of her interviews, was heavily medicated after suffering an allergy attack. Howard has said her memory of the event began to slowly come back to her, likening it to a flashback in a movie.
"A witness like Howard needs to be corroborated by something like crime scene evidence, and they don't have that," said Clarke, the former prosecutor. "The defense wants Linda Howard to be a major player in this. It is likely the defense wants the case to be all about her. It's a challenge for the prosecution to win a homicide case, which is what this is essentially, with one eyewitness with questionable veracity."
However, former federal prosecutor and Tulane Law School professor Tania Tetlow said many trials involving a killing don't have strong physical evidence readily available and instead rely on eyewitness testimony.
"They would not have indicted him if they did not believe that evidence could stand alone and prove the case beyond a reasonable doubt," Tetlow said. "Most of the time there is no physical evidence. The jury's job will be, as it is in most cases, if they believe the eyewitness."
The Warren family is hoping testimony about their devoted father, whom they describe on a website as a God-fearing man who was successful in business before he became a police officer, will help sway a jury. A string of friends, family and supporters, along with his wife Kathy Warren and their children will be among the witnesses who plan to testify to "David's good character," the site says.
The trial is expected to last at least two weeks.