A former New Orleans resident who has spent more than 46 years in Louisiana jails and prisons for armed robbery and murder, including four decades in lockdown, was released from custody Tuesday by order of a Baton Rouge federal judge.
Late Tuesday, Chief U.S. District Judge Brian A. Jackson issued a second order threatening to hold the state in contempt of court if the release of Herman Joshua Wallace, 71, was not immediate.
At 7:33 p.m., Pam Laborde, communications director for the Louisiana Department of Public Safety and Corrections, announced Wallace was being processed “for immediate release from Elayn Hunt Correctional Center” in St. Gabriel.
At 7:50 p.m., Nicholas J. Trenticosta, a New Orleans attorney for the inmate, reported: “Herman Wallace is a free man. He is riding down the highway to hospice, but he’s a free man, and he’s innocent.”
Wallace was serving a 50-year prison term for armed robbery in 1972 when Security Officer Brent Miller, 23, was stabbed to death at the Louisiana State Penitentiary at Angola.
Wallace was convicted as a participant in that murder and sentenced to life in prison.
Before the threat of contempt, attorneys continues to fight over whether he should be free.
“They will not let him out,” attorney George H. Kendall said late Tuesday afternoon.
After the judge threatened the state with a contempt judgment, another of Wallace’s attorneys, Carine M. Williams, said Tuesday night she was expecting his release.
Williams said at 7:01 p.m. that she, other attorneys and an ambulance were waiting for the bed-ridden cancer patient outside the prison at St. Gabriel.
Jackson dismissed Wallace’s 40-year-old indictment Tuesday morning in Miller’s killing, ruling women were unconstitutionally excluded from the West Feliciana Parish grand jury that charged Wallace.
Because Wallace was tried on the murder charge by 19th Judicial District prosecutors in Baton Rouge, District Attorney Hillar Moore III said Tuesday he asked Wallace be retained in custody while his staff pursues an appeal.
Moore’s notice of appeal was filed Tuesday, and he said, “We’ve asked for a stay” of Jackson’s order for release of Wallace.
That request was made of both Jackson and the 5th U.S. Circuit Court of Appeals in New Orleans, Moore said.
Neither Jackson nor the 5th Circuit had granted a stay of Wallace’s release late Tuesday.
Laborde said department records show Wallace had two armed robbery convictions in 1967 in Orleans Parish and entered the state prison system in June 1969.
“My understanding is that he (Wallace) stays in custody pending appeal,” Laborde said at that time.
“Mr Wallace is very close to death,” Kendall said. “Why in the world they would take this action is completely beyond many people.”
Added Kendall: “He’s spent 42 years in lockdown. There’s no one else in America who’s done that.”
Lockdown means that a prisoner is not allowed out of his cell for more than one hour a day, Kendall said.
Kendall said doctors have diagnosed Wallace with terminal liver cancer and he can no longer get out of bed.
In his order for Wallace’s release, Jackson said: “The record in this case makes clear that Mr. Wallace’s grand jury was improperly chosen in violation of the Fourteenth Amendment’s guarantee of ‘the equal protection of the laws.’”
The judge added: “At the time Wallace and his codefendants were indicted, the Louisiana Constitution and certain state statutes exempted women from service on grand juries unless they filed a written declaration of their desire to serve.”
Jackson said, “There is no dispute in this case that up to and including the grand jury that indicted Mr. Wallace on Sept. 14, 1973, no woman had ever served as a grand juror in West Feliciana Parish.”
The record of his prosecution, Jackson said, shows Wallace asked state District Judge Elmo Lear in October 1973 to quash his indictment because women had been excluded from his grand jury.
Lear denied that request and later refused to permit Wallace to submit a memorandum on the question of whether the exclusion of women violated his right to equal protection of the law.
“This court has little trouble determining that, indeed, the Louisiana courts ignored the fundamental principles established by the Supreme Court’s most relevant precedents in rejecting Mr. Wallace’s grand jury exclusion claim,” Jackson wrote in his ruling.