NEW ORLEANS (AP) — For the second time in three years, a federal jury is deliberating whether fear or malice drove a former New Orleans police officer to fatally shoot a man outside a strip mall less than a week after Hurricane Katrina's landfall.
At the conclusion of David Warren's retrial Tuesday, a prosecutor said the rookie officer shot and killed 31-year-old Henry Glover because he hated looters and thought nobody would care during the chaotic aftermath of the 2005 storm.
"He shot Henry Glover because he could," Assistant U.S. Attorney Tracey Knight said during her closing arguments. "It was Katrina, and no one was watching."
Warren's lawyers urged jurors to consider the hazardous conditions that police officers had to endure after broken levees flooded most of the city and left many desperate residents fighting for survival.
"It was a frightening time, and you'll never be able to put yourself in the situation of David Warren," said defense attorney Richard Simmons. "They did the best they could under those trying circumstances while everybody else was watching on TV."
Warren testified on Monday that he feared for his life when he shot Glover because he thought he saw a gun in his hand, but prosecutors said Glover wasn't armed and didn't pose a threat.
Jurors deliberated for about six hours Tuesday before adjourning for the night. They will reconvene Wednesday. U.S. District Judge Lance Africk said jurors informed him that they hadn't "moved forward" during their last two hours of deliberations and asked to break for the night. Africk sentenced Warren to nearly 26 years in prison after a different jury convicted him of manslaughter in 2010. But a three-judge panel from the 5th U.S. Circuit Court of Appeals overturned his convictions last year, ruling that Warren should have been tried separately from four other former officers who were charged in an alleged cover-up of Glover's death.
Another former officer, Gregory McRae, was convicted in 2010 of burning Glover's body in a car after a good Samaritan drove the dying man to a makeshift police station. The same 5th Circuit panel that ordered a new trial for Warren also upheld McRae's convictions.
Jurors for Warren's retrial were barred from hearing any testimony about the alleged cover-up, including any references to the burned body. Warren wasn't charged with participating in a cover-up.
Warren and another officer, Linda Howard, were guarding a police substation at the strip mall on the morning of Sept. 2, 2005, when Glover and another man pulled up in a stolen truck. Warren said he screamed, "Police, get back!" twice after Glover and his friend, Bernard Calloway, exited the truck and started to run toward a gate that would have given them access to the building he was guarding.
Calloway, however, testified that Glover was standing next to the truck and lighting a cigarette when Warren shot him. Howard testified that Glover and Calloway were running away from the building in different directions when Warren opened fire.
Knight said Howard didn't view Glover as a threat and was horrified by Warren's actions and his nonchalant response to the shooting.
"The truth is that Officer Howard had absolutely nothing to gain from her testimony," she said. "It would have been much easier not to get involved. But she couldn't do that. A man died that day."
Simmons accused Howard of lying to help prosecutors build a case against Warren.
"To believe Howard, you have to believe her memory improved over time. She adds to the story as she goes," he said. "Memory doesn't get better with time. It fades."
Simmons said it doesn't make any sense that Warren would decide to shoot Glover without provocation. He accused prosecutors of "Monday morning quarterbacking" in second-guessing Warren's split-second decision to fire a shot at Glover.
"It's easy to sit here now and try to reconstruct this, but it all happened so fast for Mr. Warren," Simmons said.
Justice Department prosecutor Jared Fishman said Glover didn't have a "death wish," wouldn't have charged toward an armed police officer and didn't deserve to be gunned down when his only offense was "at worst, petty theft." Glover was anxious to flee New Orleans after the storm and had gone to the strip mall to retrieve a suitcase containing stolen items that a friend had left there earlier that morning, according to prosecutors.
"Henry Glover was not a victim of Hurricane Katrina. Henry Glover was a victim of a bullet shot through that man's assault rifle," Fishman said, pointing at Warren.
Jurors also heard testimony from a former officer, Alec Brown, who said Warren told him shortly after the shooting that he believed looters were "animals" who deserved to be shot. Warren denied saying that.
Earlier on the same morning as Glover's shooting, Warren had fired what he called a "warning shot" at a man who had been riding a bike near the mall. Warren said he knew officers aren't allowed to fire warning shots, but was worried the man intended to do "something stupid" because he had circled the mall several times.