A decade before he was sent to prison for his role in the most-sprawling scandal in New Orleans Police Department history, disgraced Sgt. Archie Kaufman sat across from the sole eyewitness to a massacre on North Roman Street.
Early on the morning of March 2, 1995, hours after he witnessed the bloodbath, Larry Boatner told Kaufman he saw no one.
“I was too scared to look at anybody,” he said to the sergeant, who 15 years later was convicted of masterminding the cover-up of the post-Katrina police shootings on the Danziger Bridge.
Kaufman’s role in the 1995 investigation has become a flashpoint in one of the most-controversial cases to make a second appearance at Orleans Parish Criminal District Court.
Three months after Boatner told Kaufman that he was too terrified to look at the shooters, he picked Juan Smith from a lineup, and declared that he’d never forget his face.
During the 1996 trial that sent Smith to prison for five lifetimes, prosecutors never revealed that Boatner had, at first, claimed he never saw the shooters.
That omission was the primary charge of prosecutorial misconduct that led an incredulous U.S. Supreme Court to toss Smith’s conviction last year in a high-profile, 8-1 shellacking of the Orleans Parish District Attorney’s Office.
Now, Smith’s attorneys want Kaufman to take the witness stand at Smith’s trial to describe the original interview, and answer to why it was hidden for years.
But Kaufman is serving time at a low-security federal prison in Petersburg, Va.
Six days after Hurricane Katrina, New Orleans police officers gunned down six unarmed citizens on the Danziger Bridge, killing two. Prosecutors said Kaufman, then a homicide detective, was the mastermind behind a vast cover-up that included fabricated witnesses and phony police reports. He was convicted and sentenced in April to spend six years in prison.
Smith’s trial was scheduled to begin Monday, and his attorneys had requested that Kaufman be transported from Virginia to Orleans Parish to testify.
But the warden of the federal prison refused. They ignore such requests from defense attorneys and honor only those that come from the state, the warden told Smith’s attorney, Chris Murell. The warden suggested Murell solicit the cooperation of the District Attorney’s Office.
But the Orleans Parish District Attorney’s Office is disinclined to help.
Prosecutor Bobby Freeman told the court on Monday that it is not his office’s responsibility to secure a witness for the defense.
And it seems that the district attorney does not believe Kaufman’s record of whitewashing will help their case.
Freeman asked that the judge forbid defense attorneys from referencing his conviction in the Danziger Bridge case, then called the inclusion of that information “wholly prejudicial to the state,” “inflammatory” and “irrelevant.”
He wrote the court that Kaufman’s Danziger dealings are “highly relevant” to the Smith case, beleaguered by “shoddy investigation and rampant state misconduct.”
“The relevance of this evidence is Detective Kaufman’s willingness to tamper with the truth and abuse his power as a police officer,” Murell wrote the court. “It is more likely that someone who is convicted for helping police officers cover up misconduct has committed such misconduct in the past than someone who has not.”
Orleans Parish Criminal District Court Judge Frank Marullo sided with prosecutors and barred the defense from mentioning the Danziger Bridge shootings.
But Marullo on Monday was miffed by the state’s refusal to help secure Kaufman from federal custody.
He called it “gamesmanship” and “gobbledygook.”
Smith is constitutionally entitled to put Kaufman on the witness stand, Marullo said. If he’s robbed of that right, it could spell a repeat of the case’s prior trips through the appeals courts.
“If the state wants to try this case, it’s your ballgame,” Marullo told Freeman. “Practically, you will never try this case unless you, by good office, ask that this person be brought in.”
Marullo scheduled a hearing for next week, warning prosecutors to work with the defense to get Kaufman into court.
But securing his release is only the first step.
Sheriff Marlin Gusman has refused to pick Kaufman up in Virginia and drive him back to Louisiana for the trial, unless he is compensated for mileage and expenses.
Without the sheriff’s cooperation, the court might have to hire a private, and expensive, prisoner transport company.
Who would be required to pay for it is also an unanswered question.
Marullo grew frustrated Monday that the 18-year-old murder case was delayed once again.
“I’m tired of fooling with this case — I want to try this case,” he told the attorneys. “It’s like floating around in the water and not going to shore.”
Kaufman’s connection to the case is merely the latest legal twist in one of the most-notorious killings in the city’s history.
After Smith’s conviction for the 1995 execution of five people on North Roman Street, he was also convicted for another massacre, a triple murder on Morrison Road a month earlier.
Prosecutors used his previous Roman Street conviction to persuade a jury to sentence him to die. When the Supreme Court chucked the first conviction, Marullo tossed the death sentence in the subsequent one.
But his conviction still stands. His attorneys have asked that that conviction to be overturned as well, citing similar acts of coerced identifications. Their request remains pending.
But in the meantime, prosecutors intend to present evidence of that triple killing to convince a jury that Smith murdered five victims on North Roman Street less than a month later.
Marullo denied their request to present the evidence of unrelated crimes. But his decision was overturned by two higher state courts under a law that allows the state to present evidence of other misdeeds if it establishes a pattern of violence, motive or intent.
Defense attorneys have called it a desperate ploy to influence a jury using a shaky conviction that could, too, be overturned. If it is, after prosecutors use it against Smith at his upcoming trial, it’s possible that any convictions could be scrapped again.
Marullo has since imposed a gag order on the case at the request of the district attorney that forbids attorneys on both sides from talking to the media.