Mimesis Law
29 March 2017

Baseless Case Against Jerome Morgan May Be Dismissed (When They’re Good and Ready)

May 27, 2016 (Mimesis Law) – As the Times-Picayune reports, it finally looked like things were going to turn around for Jerome Morgan. He had a favorable ruling from the Louisiana Supreme Court that pretty much gutted the state’s case, after all. Unfortunately for Morgan, prosecutors don’t seemed too concerned about continuing to prosecute the case despite a lack of evidence:

Clinging to a case that appears increasingly quixotic, prosecutors from District Attorney Leon Cannizzaro’s office told a New Orleans judge Thursday (May 26) they intend to retry Jerome Morgan next month for a 1993 murder, despite a recent state Supreme Court ruling that removed the heart of their evidence.

When the article says the ruling “removed the heart of their evidence,” it isn’t kidding:

Morgan, 40, already served 20 years at Angola after being convicted at age 18 of killing Clarence Landry III at a hotel party in New Orleans East. But Morgan’s life sentence was overturned and a new trial ordered after the two eyewitnesses who named him as the shooter recanted in October 2013 and testified they had been coerced to identify Morgan by New Orleans police.

Those witnesses, Hakim Shabazz and Kevin Johnson, have been charged with perjury over their inconsistent statements. They have said they will not testify in Morgan’s retrial, scheduled for June 13, invoking their Fifth Amendment rights against self-incrimination.

In some case, recanting witnesses aren’t big news. Victims in domestic violence cases do it all the time. Eyewitnesses to a murder, however, are a different animal altogether. It isn’t like their finances are intertwined with Morgan’s. It isn’t like they have children in common with him, or have been subtly brainwashed by him. All recantations aren’t created equal. When two eyewitnesses with nothing to gain aside from perjury charges say not just that they lied, but that police made them do it, you’d think prosecutors would listen.

If prosecutors have enough to charge those eyewitnesses with perjury, it seems there’s a pretty good indication they’re no longer any help to the state. Perhaps the theory is that they’re lying by recanting now and told the truth before, but either way, they’re no good as witnesses at this point. They’ll be remaining silent, it seems, but even if they didn’t, any halfway decent lawyer would have a field day with them during cross-examination.

The trial court’s ruling, which the Supreme Court overturned, was more of a compromise than what the Supreme Court eventually did:

Zibilich ruled in April that jurors in Morgan’s retrial would be permitted to see the men’s transcribed testimony from the 1994 trial, as well as their 2013 recantations. But the Louisiana Supreme Court ruled May 13 that the original trial testimony is inadmissible unless the men appear again as witnesses in the case.

There’s almost a splitting-the-baby aspect to letting the jury hear both the original testimony and the more recent recantations. Give the jury everything and let them give weight where it’s due, right? Of course, there are plenty of issues with that.

Their testimony in 1994 probably would’ve been very different had they already recanted and been questioned about it. The 2013 recantations, on the other hand, were probably given with some understanding of what came before. Either having them testify again and be subject to questioning about prior statements or not letting it in at all seems like the only fair way to do it.

It appears quite clear that the state’s case has more or less unraveled. Furthermore, prosecutors have already taken twenty years of the guy’s life away. Innocent or not, Morgan has spent more of his life in custody than out. In lots of places, he would’ve already served his sentence for the crime.

So why do prosecutors continue to go after Morgan? Sadly, the article provides no concrete information about why that is, though it does raise some interesting issues involving the trial court:

“The state has said that testimony is the basis for their case in chief,” McDuff said, imploring the judge to question the prosecutors about what other evidence they intend to rely upon at retrial.

“I don’t have the power to dismiss the case if that’s what you’re asking me to do,” Zibilich said. “My job is to referee the trial if there is a trial. How viable a case it is, is not really my concern.”

The judge suggested that if McDuff, along with co-counsel Kristin Wenstrom and Emily Maw of Innocence Project New Orleans, filed a motion to quash the indictment, “I’ll make sure they answer it. I can’t just say, ‘That sounds like a heck of an argument’ and dismiss the case.”

What’s interesting is that the trial judge was going to let in both the old testimony and the new recantation. Now that he can’t, it seems he’s inclined to dismiss the case because there’s nothing to it. What’s even more interesting is the idea that a motion to quash might allow him to do that, as it sounds like he’s proposing the defense use it as a vehicle for him to consider the viability of the state’s case, the exact thing he’s saying he can’t do.

This is probably the most informative part of the article about how prosecutors are likely to proceed:

Andrieu told the court that prosecutors have not had a chance to discuss Morgan’s case since the Supreme Court ruling nearly two weeks ago, because of a recent death in Freeman’s family. Zibilich suggested Andrieu consult soon “with the powers that be” across the street at Cannizzaro’s office.

McDuff argued that it was “unethical, unprofessional” and a violation of Morgan’s constitutional rights for the state to prolong a case he said ought to be abandoned.

Morgan has already waited twenty years to get the wrongful conviction against him thrown out, so who cares if prosecutors make him wait a bit longer because they couldn’t be bothered to consult “with the powers that be” about what to do? It isn’t like they have an ethical duty not to prosecute cases absent probable cause. It isn’t like Morgan is desperate for closure. It isn’t like the defense is wasting precious time and resources scrambling to be ready for a trial next month.

The smart money is on prosecutors dismissing the case. They’re just in no rush to do it.

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  • Perjury & Policy: A Fine Line
    2 June 2016 at 9:17 am - Reply

    […] witnesses. Just last week, Fault Lines contributor Matt Brown covered the details behind the baseless case against Jerome Morgan. In short, Morgan’s conviction was set aside and a new trial ordered after two eyewitnesses […]