New Orleans District Attorney Leon Cannizzaro is a self-proclaimed reformer, though the evidence says otherwise. His misdeeds, which have been covered here extensively in the past, have garnered increasing attention over recent years. Now, a new case threatens to put him in a category with some of the nation's worst prosecutors.
If successful, the precedent-setting case could discourage witnesses from recanting false testimony, thereby severely impairing any chance of vindication for many of the wrongfully convicted.
The backstory: Jerome Morgan was sentenced to life without parole in 1993 for the murder of Clarence Landry, who was shot and killed at a sweet 16 party. Prosecutors in former District Attorney Harry Connick's office relied largely on the testimony of two witnesses, Hakim Shabazz and Kevin Johnson, both of whom claimed that Morgan was the shooter.
But 20 years later, in 2013, Shabazz and Johnson recanted their testimony, stating that police threatened and coerced them into accusing Morgan. Morgan's attorneys also found evidence of prosecutorial misconduct—during the original trial prosecutors withheld critical evidence from the defense, including a 911 call log that cast serious doubt on the state's timeline and proved it was near impossible that Morgan committed the murder.
Based on the new evidence and recent developments, the Innocence Project fought to vacate Morgan’s conviction. Morgan, who had maintained his innocence throughout his incarceration, prevailed. His sentence was vacated in early 2014.
It was good news but no guarantee of freedom, since prosecutors vowed to retry him. And despite being technically innocent, he had to remain in prison while awaiting a new trial. The past two-and-a-half years have been filled with battles in the state court system relating to the evidence and witnesses in the case. Cannizzaro’s office overwhelmingly lost those battles, but their insistence on re-trying Morgan never wavered—that is, until the knock-out blow was delivered last month.
In May, the Louisiana Supreme Court ruled that prosecutors could not use transcripts of Shabazz and Johnson’s witness testimony from Morgan's 1994 trial as evidence in his new trial unless the two agreed to testify. As a result, last Friday Cannizzaro announced that his office would not subject Morgan to retrial. After 23 years in Angola, America's most brutal prison, Jerome Morgan is finally free.
That’s the good news. Here’s the bad news.
Unjust prosecution in the case continues, as prosecutors bring new charges that could have grave implications for truth and justice. But this time it’s not Morgan at the defendant’s table. It’s Shabazz and Johnson. Cannizzaro's office has made the troublesome and unusual decision to charge both men with perjury. Trial is scheduled to begin in August. From the Times Picayune:
"Johnson and Shabazz either perjured themselves in 2013 to allow a cold-blooded murderer to walk free, or they perjured themselves in 1994 to put an innocent man in jail," Cannizzaro said in his statement last week. "Unfortunately, the passage of time, less-than-adequate investigative work at the time of the murder, and legal procedures have made it impossible for us to determine which it is for sure. However, either way they deserve to be punished."
A perjury prosecution might not seem like a big deal, especially when a witness changes their story. But the implications are enormous. This is yet another example of prosecutors playing dirty, silencing and intimidating through excessive prosecution while refusing to address internal misconduct and law enforcement corruption.
State players in our criminal justice system want to win. They aren't alone in that regard, of course—the adversarial system incentivizes victory on both sides. But the state is uniquely subject to pressures and politics from a whole host of other sources, including law enforcement and other elected officials. Those pressures, coupled with prosecutors' relative abundance of resources and their disproportionate power, only serve to increase the obsession with victory.
However, when the opportunity for such victory stands opposite the pursuit of the truth, the latter must always prevail. There are no exceptions to this rule.
When a witness lies and that lie results in a prison sentence, there is a serious miscarriage of justice. That's why recanting witnesses are traditionally not prosecuted—we don’t want to discourage people from vindicating the wrongfully convicted, even if it takes them 23 years.
False confessions are not unusual, and false accusations are even more common. When a person such as Morgan becomes a casualty of such falsehoods, he can only hope that someone eventually tells the truth. At 18, Morgan was sentenced to die in prison. Literally his only hope was that someone would eventually tell the truth.
He was lucky. But these perjury charges against Shabazz and Johnson will pretty much erase any chance of such luck for other wrongly convicted people in similar situations. These charges will have an arctic-level chilling effect on people's willingness to come forward in the future.
The irony here is that prosecuting Shabazz and Johnson for lying on the stand will actually make the criminal justice system less truthful and even more unjust.
After all, if Shabazz and Johnson had never come forward with the truth, they wouldn't be facing five to 40 years in prison. They’d have their freedom, and Jerome Morgan would have died in prison.
Unjust as Morgan’s continued incarceration would have been, that’s the scenario Cannizzaro would have preferred. That’s why he’s pushing forward on these perjury charges.
Yes, this is retaliatory—Cannizzaro wants to punish the men responsible for Morgan's vacated conviction and release, which were both embarrassing defeats for the DA's office. But, revenge isn’t a sufficient explanation here.
In fact, without the perjury case, Cannizzaro might have gotten to retry Morgan. After all, it was because of the perjury charges that Shabazz and Johnson could legally refuse to testify in the retrial, by invoking their Fifth Amendment right against self-incrimination. The state Supreme Court’s ruling—that Cannizzaro couldn’t use the transcripts if the witnesses would not testify—is what drove the final nail into the retrial’s coffin, since the risk of self-incrimination meant the two men could not be compelled to the witness stand.
But, while he lost the chance to retry Morgan, it was a calculated loss. Even if he had been allowed to retry the murder case, the new evidence and recanted testimony meant that prosecutors were unlikely to prove beyond a reasonable doubt that Morgan murdered Landry.
So, instead of prosecuting a case that he can’t win, he’s making sure he doesn’t have to deal with such cases in the future. He is punishing witnesses for telling the truth.
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While it is quite rare for prosecutors to file perjury charges in a case like this one, it’s not unprecedented. Still, the club of offenders is small, and Cannizzaro is in bad company. Remember Anita Alvarez, disgraced state's attorney in Chicago? She also filed perjury charges against a recanting witness. From an article published here last November on Alvarez:
A number of high profile lawyers and elected officials, including former Governor Thompson and a retired appeals court judge, found the perjury charge disturbing. They sent Alvarez a letter stating that prosecuting Johnson would “would not only deter false recantations, but also truthful ones,” and asking her to drop the charge. Alvarez refused and [the witness] was convicted.
[In 2015] Johnson was pardoned by former Governor Pat Quinn, another indication that many elected officials think Alvarez’s decision was egregious.
And Cannizzaro may be even more shameful than Alvarez in this case, which is a true feat. In Alvarez’s case, the witness lied because he was scared. In Cannizzaro’s case, the witnesses lied because of law enforcement’s alleged misconduct.
False accusations happen for many reasons: money, fear, for the perks promised by law enforcement, to protect someone else or themselves, to get back at someone. Whatever the reason, Cannizzaro's decision to charge reduces the likelihood that any recanting witness will come forward.
But in Shabazz and Johnson's case, such charges are particularly disgraceful. After all, the two men say that it was police who demanded that they lie.
By charging these two men with perjury for statements they made 23 years ago when they were just 16-year-old boys—statements they made at the insistence of police— Cannizzaro makes it pretty obvious that justice is his last concern. From the Times-Picayune:
"[The defendants] don't believe they've done anything wrong, in any way," [their attorney] said. "When you're a kid and have these authoritative figures saying, 'This is how it has to go down,' it can be scary. But Cannizzaro and his prosecutors find it impossible to believe these two young individuals could be convinced to testify as they did by law enforcement officers or prosecutors from [predecessor Harry Connick's] office at that time…[But] Those two entities (the NOPD and district attorney's office) have a great deal of power. It's hard to believe the DA's office today can't be open to that possibility."
Unsurprisingly, Cannizzaro is not bringing any charges against the law enforcement officers that secured the statements.
In other words, instead of prosecuting police for coercion and intimidation, he's prosecuting the men who the police coerced and intimidated.
This perjury case is brazen in its lack of dignity. Until the state Supreme Court ruling, Cannizzaro was using Shabazz and Johnson as prosecution witnesses through their former testimony while simultaneously trying them for perjury with the same testimony. And the fact that the perjury statute doesn't even require prosecutors to determine which statement was a lie—the original accusation or the later retraction—means prosecutors have every advantage.
Perjury cases like this one can only hurt defendants. If the situation were reversed—if, say, a witness testified to a defendant’s innocence, the defendant was found innocent, and the witness then stated he was actually guilty—it wouldn’t benefit prosecutors. The state can’t charge a defendant twice for the same crime, as double jeopardy is constitutionally prohibited. In other words, prosecutors have nothing to lose.
This perjury case is a dirty silencing tactic, an adversarial cheat code, a sore loser's bitter retaliation, and more proof that Cannizzaro runs a lazy, morally bankrupt prosecutor's office.
The lesson is clear. If you're innocent, the state may frame you anyway. If you tell the truth, the state will force you to tell a lie. And if you lie, you must never come forward with the truth. Police will hurt you, not protect you. And, instead of punishing the police for harrassing you, you will be punished for being harassed.
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Cannizzaro's decision not to retry Morgan was made reluctantly, and the statement he released last Friday included no apologies for police or prosecutorial misconduct. Instead he expressed unhappiness at having to drop the case at all. From the Times-Picayune:
"What is most disappointing to me about this entire incident is that, as Mrs. Landry lays in bed dying of cancer, the justice for which she worked so hard to obtain is ripped from her fingers and she is helpless to stop it," Cannizzaro said.
But [Emily] Maw, with the Innocence Project, said Landry's parents have supported IPNO's efforts to clear Morgan's name and she hoped Cannizzaro reopens the investigation into Landry's killing.
"As opposed to Mr. Cannizaro, I have communicated with Clarence Landry's parents extensively and they have no desire to see an innocent man prosecuted," she said in her statement.
Once again, Cannizzaro conflates justice with victory for the state. After all, for a win-at-all-costs prosecutor like himself, the former can't exist without the latter.