James Gill: Prosecutors play dirty in case

Give Orleans Parish prosecutors their due; they don’t give up.

They continue to hope that one of these days a court will rule a death row inmate from the Harry Connick era was justly convicted and sentenced.

They are certainly pulling out all the stops to make Rogers Lacaze the exception. Indeed, they are so keen to show he was not the victim of prosecutorial misconduct that they have resorted to tactics that defense attorneys regard as dirty tricks.

Lacaze does not enjoy much public sympathy. He and a New Orleans police officer called Antoinette Frank were given death for a 1995 triple homicide at a Vietnamese restaurant. The victims were children of the owners and Ronald Williams, another officer who was working a detail there.

A hearing was held last month on Lacaze’s claims that he was innocent and was denied a fair trial. DA Leon Cannizzaro’s office, presumably fearing that the hearing didn’t go so well, wants Judge Michael Kirby to delay his ruling and reopen it.

The pretext is a mystery witness who purportedly materialized, the day after the hearing concluded, with “highly pertinent evidence which wholly refutes Lacaze’s claims for relief.” Given the wide range of Lacaze’s claims, such evidence would be not so much “highly pertinent” as totally miraculous.

Prosecutors, Lacaze’s attorneys complain, proceeded to pull a fast one, hauling their deus ex machina in front of a grand jury to repeat his or her allegations and delivering a transcript to Kirby with a motion to reopen the hearing. Prosecutors, evidently wary less the justice system become too adversarial or open, kept the defense in the dark. They went to the grand jury, they explained in a motion, to provide a “sworn record” for Kirby to use in making his decision and to ensure the witness would remain safely anonymous.

Lacaze’s attorneys protested that this constituted an illicit use of public resources, because the purpose of a grand jury is to conduct investigations with a view to bringing an indictment and not to help prosecutors prepare for a hearing years after a verdict has been rendered. Indeed, grand juries are supposed to be a bulwark between the people and the government, not the handmaiden of its enforcers.

Prosecutors countered that they had too played the game according to Hoyle, but they so lacked conviction that they have now agreed to forgo the grand jury testimony and rely on an affidavit the mystery witness signed when he or she first came forward. Since Kirby has already declared he read the grand jury transcript when prosecutors forwarded it, defense attorneys may not feel prosecutors have made much of a concession.

Prosecutors say they will reveal the identity of their mystery witness to the defense only if Kirby agrees to reopen the hearing first. The defense thinks fairness requires Kirby to rule now or order the government to come clean.

If Kirby does agree to reopen the hearing, it will be a sight to behold only when the new witness is identified and he or she takes the stand. Lacaze’s claims are so multifarious, ranging from ineffective counsel to the suppression of evidence, that this mystery witness is practically omniscient if his or her evidence “wholly refutes” them all. Indeed, he or she is evidently a clinical psychologist on the side, and capable of shedding light on Lacaze’s claims of “mental retardation” as grounds for “mitigation of sentence.”

The murders of which Lacaze was convicted are among the most notorious in living memory, but the sudden appearance of this witness was “due solely to the process surrounding the aftermath of the evidentiary hearing,” according to a government motion. Evidently even a paragon can be quite unobservant sometimes.

Government motions suggest that he or she has evidence that might prove Lacaze guilty, but concede that, in post-conviction proceedings, such considerations are irrelevant. The only issue is whether Lacaze’s constitutional rights were adequately safeguarded at trial. We need not look beyond the performance of his inexperienced, hopelessly inept and now late trial attorney to conclude that they weren’t, and that Orleans prosecutors will have to keep trying.

James Gill’s email address is jgill@theadvocate.com.