NEW ORLEANS (CN) – A cop convicted of participating in the police cover-up of a man shot to death, and then burned, in the days after Hurricane Katrina will get a new trial, a federal judge ruled Wednesday.
“The newly discovered evidence casts grave doubt on the criminal conviction,” U.S. District Judge Lance Africk ruled.
An “original” incident report that has just surfaced would “radically alter the landscape of the government’s case” against of Travis McCabe, according to the ruling.
Africk said the jury probably would not have found McCabe guilty if the original report had been available during the trial.
McCabe was convicted in December 2010 of falsifying two pages of an incident report filed in the wake of the Sept. 2, 2005, shooting of 31-year-old Henry Glover. McCabe’s colleague in the New Orleans Police Department, Officer David Warren, fired the shot.
Glover’s body was then burned in a fire set by Officer Gregory McRae in an effort to obstruct an investigation of the shooting.
Federal prosecutors said McCabe changed the incident report submitted by Sgt. Purnella Simmons following the incident to make Warren’s shooting of Glover appear justified.
Simmons was unable to produce an original version of her report during trial, but told the jury her report substantially differed from the report on file.
Following McCabe’s trial and convictions, a copy surfaced of what is alleged to be the original report before McCabe’s alterations. The newly found “original” report has just three minor differences from the final report McCabe allegedly wrote.
McCabe’s attorneys never brought the original report to trial because they did not realize how to obtain it at the time, Africk said.
That perception changed during testimony last month when Warren, the shooting officer, mentioned that Simmons gave him the report that is on file. Following his testimony, Warren’s attorneys looked through the file and came up with what they now say is the original report.
Warren received the original report along with several other documents from his attorneys in May 2009, Africk said. Since McCabe did not realize he was under investigation in connection with Glover’s murder until that July, the judge said it is unlikely someone planted the new evidence to clear McCabe.
Both McCabe and the government conceded during oral argument that “resolution of this motion primarily turns on whether Warren received the newly discovered narrative report from Simmons,” according to the ruling.
Warren testified that Simmons gave him a copy of the report in December 2005 during a private meeting at New Orleans Police Department’s fourth district headquarters. Warren said he never told anyone about the report until the tail-end of the November 2010 trial.
Simmons reportedly told a federal grand jury that she wrote the report before she implicated McCabe after cooperating with federal prosecutors.
“The court is faced with a credibility determination,” Africk wrote. “On one hand, Warren is a convicted felon. On the other hand, Simmons admitted to testifying falsely under oath before the federal grand jury.”
Africk said he finds it hard to believe Warren would bother to fabricate such a lie when production of the report doesn’t help his own case. “The only person it helps is McCabe; there is no benefit to Warren,” according to the ruling.
Additionally, when asked to describe the differences between her original report and the one McCabe allegedly planted, Simmons failed to mention that her report had a border around it. In her affidavit in opposition to a new trial, however, Simmons said the newly produced report could not be hers because hers had a border.
“The court concludes that the newly discovered narrative report and the testimony relating to it, if presented to a jury, would probably produce a jury acquittal with respect to all of the charges against McCabe,” Africk wrote.
“As such, the existence of the newly discovered narrative report would radically alter the landscape of the government’s case against McCabe,” he added.
“There are no winners or losers here,” Africk concluded. “Only justice prevails.”
A new trial date has not yet been set.