A federal judge on Wednesday ordered a new trial for a former New Orleans police officer convicted of writing a false report on a deadly police shooting after Hurricane Katrina devastated the Gulf Coast in 2005, saying new evidence "casts grave doubt" on his guilt.
U.S. District Judge Lance Africk ruled that Travis McCabe deserves a second trial because the newly discovered evidence — a different copy of the report that McCabe is accused of doctoring — surfaced after his December 2010 convictions. Africk, who threw out those convictions Wednesday, said he believes the jury probably would have acquitted McCabe if it had been presented with the newly discovered narrative report.
"As this court instructed the jury prior to its deliberations, there are no winners or losers here. Only justice prevails," Africk wrote.
The judge didn't immediately set a new trial date.
Michael Small, one of McCabe's lawyers, said his client was "thrilled" with the decision.
"We always felt secure in the strength of our position, but it was difficult to be completely confident because (new trials) are so rarely granted in federal criminal cases," he said.
Small said he hopes prosecutors don't retry McCabe. U.S. Attorney Jim Letten said his office may ask an appeals court to review Africk's ruling.
"Right now we're digesting the ruling, and we are going through and weighing our options," Letten said.
A jury convicted a former officer, David Warren, of manslaughter for shooting 31-year-old Henry Glover without justification and convicted another former officer, Gregory McRae, of burning his body in a car. Africk sentenced Warren to 25-plus years in prison and sentenced McRae to more than 17 years in prison. The jury cleared two other officers of charges stemming from the alleged cover-up.
McCabe hadn't seen sentenced yet and has been free on bond since his conviction. The police department fired the 16-year veteran in February.
Prosecutors claim McCabe added fabricated material to a report submitted by Sgt. Purnella Simmons to make it appear that Warren was justified in shooting Glover in the aftermath of the 2005 storm. Simmons, who couldn't produce her original draft, claimed the report was changed without her knowledge.
But Warren testified last month that Simmons gave him a copy in December 2005 that is nearly identical to the version McCabe allegedly falsified. Warren's attorneys found that copy in their files after the trial.
The copy of the report that jurors saw "was of singular importance to the government's case against McCabe; the newly discovered evidence casts grave doubt on the criminal conviction that the government secured against him," Africk wrote.
McCabe's lawyers argued that the discovery undermines prosecutors' claim that police produced different versions of the report on Glover's shooting.
Simmons, who was a government witness during the trial, denied after the new version of the report surfaced that she had given it to Warren. She claimed she didn't see the version McCabe was convicted of falsifying until several years after the shooting, when a police investigator showed it to her.
In her grand jury testimony, Simmons initially took responsibility for writing the narrative that prosecutors claim was doctored. But she later recanted that claim and started cooperating with prosecutors.
Africk said he was faced with a "difficult credibility determination."
"On one hand, Warren is a convicted felon," he wrote. "On the other hand, Simmons admitted to testifying falsely under oath before the federal grand jury."
But the judge said he finds it difficult to believe Warren would lie on McCabe's behalf.
"The only person it helps is McCabe; there is no benefit to Warren," he wrote.
Simmons' credibility was a "significant jury issue," the judge added.
"This is not a case where there was a plethora of evidence supporting Simmons' claims," Africk wrote. "To the contrary, in the court's estimation, the government's case presented against McCabe at trial was a close one."