A federal court jury deliberated into the evening Tuesday but was unable to decide whether a former New Orleans police officer acted illegally when he fatally shot Henry Glover at an Algiers strip mall four days after Hurricane Katrina struck the city in 2005.
The jury will resume deliberating in the morning.
U.S. District Judge Lance Africk handed the case to the jury of eight women and four men about 1 p.m., and they met past 7 p.m. after impassioned closing arguments in the retrial of former Officer David Warren.
Federal prosecutors called the former patrolman a flat-out liar, telling the jury that Warren, who testified Monday, made up a story about where he stood, what he saw and why he fired a single shot at Glover from his personal assault rifle.
Warren also lied about why he didn’t alert anyone to what he now claims was a handgun he believed he saw in the hand of Glover or his friend, Bernard Calloway, before squeezing the trigger, said Assistant U.S. Attorney Tracey Knight.
“David Warren did not shoot Henry Glover because he had to, because his life was being threatened. He shot Henry Glover because he could,” Knight told the jury.
“It was Katrina and no one was watching. With everything else going on, there would be little or no investigation. Warren thought that no one would really care about this man.”
In his attorneys’ account, by contrast, Warren is the target of a contorted, seemingly endless government mission to convict him over a split-second decision made under pressurized, post-Katrina duress.
Warren is being tried alone this time, after an appeals court last year overturned his 2010 conviction on virtually the same charges, saying his prosecution was tainted by evidence against four other officers for the later burning of Glover’s body on the Algiers levee and an alleged cover-up.
Glover’s name became a symbol for horrific NOPD misconduct after Hurricane Katrina. But the trial this time focused only on the shooting, and whether Warren was justified in firing on Glover on Sept. 2, 2005.
“Never before have so many tried so hard for so long to make so much out of so little. I’m not talking about the death of this man. I’m talking about the effort to prosecute this man,” said Rick Simmons, one of Warren’s attorneys.
Warren faces charges that he violated Glover’s civil rights by killing him and that he discharged a weapon in the commission of a violent crime.
The second charge carries a minimum 10-year prison sentence. The civil-rights charge carries a possible life sentence, although Warren’s attorneys argued that it should be capped at the 15 years he received after the first trial.
The case revolves around Warren’s state of mind at the time he peered into the magnification scope of his long-range SIG Arms rifle and pulled the trigger from about 66 feet away.
To prove a “willful” violation of Glover’s civil rights, federal prosecutors needed to show that Warren acted “with bad purpose,” intending to commit an illegal act when he fired, Africk told the jury.
Warren’s attorneys urged the jurors to consider the “totality” of circumstances, including the unique situation after the storm. During the trial, they highlighted the fact that two days before Glover’s shooting, Warren had responded to the call of another officer, Kevin Thomas, who had been shot in the head by a looter.
“You’ll never be able to put yourself in the position of David Warren,” Simmons told the jury. “You can’t.”
On Tuesday, Knight brought up earlier testimony by another former NOPD officer, Alec Brown, who recalled Warren telling him, while on patrol shortly after the storm, that looters “were pretty much animals and deserved to be shot.” Warren, he testified, didn’t distinguish between people stealing TVs and those taking food and water for survival.
“What Warren wants you to believe is that everybody in this case lied about him,” Knight said.
Warren was a 43-year-old rookie cop and a well-trained marksman when he shot at an unidentified man, only much later identified as Glover.
Glover had driven up to the back of the strip mall in a stolen truck with Calloway to retrieve a suitcase full of stolen merchandise left behind by two women he knew.
Warren testified that he shouted for the two men to get out, but they kept coming toward a gate he said was unlocked.
Both Warren’s partner that day, veteran Officer Linda Howard, and the ranking officer who responded to Howard’s call about the shooting, Sgt. Purnella Simmons, said the gate where Warren said he saw the men was locked.
Howard, the only witness to have claimed to see the shooting, also said the men were running away when Warren fired.
Calloway, however, testified that Glover had gotten out of the pickup and was standing, lighting a cigarette, just before the shot rang out.
Warren’s attorneys hammered at the testimony of Howard, whose story has shifted over several sworn statements and court appearances.
Simmons, the attorney, called the case a severe episode of “Monday morning quarterbacking” based on reconstructed memories — particularly those of Howard.
Simmons suggested that Howard and other witnesses form-fitted their testimony to a story that federal prosecutors were forced to adjust, largely because Howard changed her account of where she was when Warren fired.
She first told the FBI she was standing on the rear balcony of the strip mall when she saw the two men running down the street and then Glover falling. But then she revised her story, saying she stood inside a locked gate and peered through the bars.
Just how far she could see down the street from there, and whether she could see where Glover fell, became a central issue for Warren’s attorneys.
They filed a motion on Tuesday to dismiss the indictment against Warren, arguing that the grand jury never heard Howard’s revised story of where she stood.
Federal prosecutors tried to show that Warren faced no imminent danger when he fired on Glover.
Warren testified that he turned his back on the two men as they ran away and didn’t alert anyone about the possible handgun that he said had prompted his shot.
That fact belied his purported fear of being killed, said Knight, who described the gated strip mall as a “fortress.”
“If Warren was as terrified as he says he was, he would have watched to see where the two men went,” Knight said. “No way in this world that a police officer would watch his attackers run partially up the street, and then walk away.”
Testifying on Monday, Warren said he watched the men run for a few seconds, then bolted to the front of the strip mall to see whether there were others coming from that side.
“I felt the danger had passed,” he said.
Warren’s other attorney, Julian Murray, told the jury that Warren had good reason to fear for his life when he fired.
“It’s a tremendously dangerous situation they were facing,” he said. “So easy for us to second-guess from the calm of our air-conditioned homes afterwards, reading the paper.”
Before closing arguments Tuesday, the jury heard testimony from Simmons, the only ranking officer to respond to a report of an officer firing his weapon the day Glover was killed. She testified that Warren never told her he thought he had seen a weapon before shooting, only saying three months later that he thought he saw something
Simmons retired after 29 years on the force as the 2010 trial over Glover’s killing, the burning and an alleged police cover-up was wrapping up.
She admitted then that she lied to a grand jury about her investigation into the shot fired by Warren. She also said a December 2005 report on the shooting with her name on it contained key passages that she did not write.
The jury heard none of that this time, with Africk tightly restricting her testimony in response to the appeals court ruling last year.