Criminal Justice
 

New evidence suggests man convicted of murder wasn't at crime scene, attorneys say

By Matt Davis, The Lens staff writer |

In 1995, then-Orleans Parish District Attorney Harry Connick convicted Juan Smith of murdering five people. Last month, the U.S. Supreme Court threw out the conviction, saying Connick failed to share crucial evidence with the defense.

In 2003, John Thompson’s murder conviction was overturned when the U.S. Supreme Court likewise found that Connick, in 1985, didn’t provide Thompson’s attorneys with all the legally required evidence. Thompson is now a free man, instead of a death-row prisoner.

And in 1995, the U.S. Supreme Court overturned Connick’s 1984 murder conviction of Curtis Kyles, finding that Connick’s office had withheld evidence from the defense.

And now convicted killer John Floyd’s attorneys want to add to that tally based on information they recently uncovered about their client that wasn’t made available to his attorney 30 years ago.

In addition to the new information, attorneys with the Innocence Project of New Orleans hope to convince a federal jury that the lead detective – who gained a checkered legal reputation after Floyd’s conviction – preyed on Floyd’s low intelligence by buying him alcohol before showing him pictures of a murder scene and then getting Floyd to confess to two murders.

Floyd was cleared of one of the killings but convicted of the other, largely based on his confession and statements to others; prosecutors provided no physical evidence that Floyd was at either crime scene. In fact, he was acquitted in the one homicide specifically because blood testing excluded him.

“The thing about this case is: He confessed to both murders,” said Denny LeBoeuf, director of the ACLU Capital Punishment Project and one of Floyd’s supporters. “He couldn’t have done one of them. So if a confession, which we know is false, is the only confession, how do we get a conviction out of that?

“This case shows you cannot rely on those old convictions out of Orleans Parish in the ‘80s,” LeBoeuf said. “They are just covered with example after example after example of Connick’s office hiding evidence, and the police hiding evidence and coercing confessions.”

In all, 10 convictions won by Connick have been overturned in state or federal courts over the past 25 years because his attorneys failed to comply with an evidence-disclosure requirement set by the Supreme Court.

In an interview with The Lens, Connick said LeBoeuf and others are simply doing their best to help clients by attacking his office, but that such efforts are baseless. In particular, he said, his office has a record of disclosing information favorable to the accused, called Brady material, referring to the 1963 U.S. Supreme Court case Brady v. Maryland.

The facts in the case

Floyd’s case is complex, but an understanding of the facts is important for anyone seeking to draw conclusions about his conviction.

Two men were killed within three days of each other in November 1980, one in the French Quarter and the other at a hotel on Canal Street, just outside the Quarter.

The similarities in the killings led police to believe one person was responsible: both were stabbed in the same parts of the body; both crime scenes had two half-filled glasses of whiskey present; both victims were gay men who apparently engaged in sexual activity before their deaths; and pubic hair from an African-American person not belonging to either victim were found at both crime scenes.

Floyd is white.

Bill Hines, a copy editor at The Times-Picayune, was found beside his bed in his apartment on Gov. Nicholls Street on Nov. 26.

In the early hours of Nov. 29, hotel executive Rodney Robinson was found dead in the 10th floor hallway of the Fairmont Hotel outside of his room.

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The existence of the pubic hairs found in a semen-filled napkin next to Robinson’s bed, as well as others found in his bed, was not disclosed to Floyd’s attorneys at the time, although hairs found in a bloodstained cap near the scene were disclosed.

Further, a hotel security guard told police she saw a black man running from the scene.

Floyd was acquitted of Robinson’s killing on the basis of hair comparison, and blood-typing of the semen, which suggested someone with Type A blood was most likely responsible for Robinson’s death. Floyd has Type B blood.

The police never found any physical evidence to connect Floyd to the Hines murder.

Instead, they relied on Floyd’s confession to both killings and what he said to others. French Quarter bar owner Stephen Edwards told police and testified at trial that Floyd had threatened to kill him after Edwards reminded him that he had been banned recently from the bar for bad behavior.

Edwards told police that Floyd told him, “I already wasted one person,” and Edwards asked him if he meant Hines. Edwards said Floyd responded, saying, “Yeah. On Governor Nicholls.”

Another witness, Gerald Griffin, took Floyd to the detox unit at Charity Hospital hours after Robinson was killed. Griffin told police Floyd had asked Griffin if he knew about the hotel killing, and that Floyd had said people who seek psychiatric or detoxification treatment or can sometimes avoid culpability for their actions, Griffin said. Griffin contacted police when he saw an account of Robinson’s death in The Times-Picayune.

Two months later, New Orleans Police Detective John Dillman and Officer John Reilly found Floyd, who was known by the nickname “Crazy Johnny,” in the French Quarter, at a gay bar called The Louisiana Purchase. Dillman and Reilly brought Floyd at least one drink, talked with him, asked him to step outside, then handcuffed him and took him to police headquarters, where Floyd signed a form waiving his right to an attorney and confessed to both killings.

Floyd, a homeless drifter who dropped out of school after seventh grade, has since been tested by an expert hired by his attorneys and shown to have an IQ of 59, or lower than 99 percent of the population. The battery of tests, the expert said, also shows he’s highly susceptible to suggestion and manipulation.

In 1982, Floyd’s attorney, Walter Sentenn, asked for a trial before a judge, rather than a jury, as allowed under state law. Judge Jerome Winsberg found Floyd guilty of the Hines murder, and acquitted him in the Robinson case. Sentenn is now dead, and Winsberg did not respond to requests for comment.

Floyd’s attorneys tried to get his conviction overturned by working through state court system, starting in 2006. When the Louisiana Supreme Court narrowly turned down his bid, his legal team appealed directly to the U.S. Supreme Court, which declined to hear the appeal on Feb. 21.

Still, the case could land back at the highest court in the land. That’s because Floyd’s attorneys have taken a new tack by filing a case to federal court, where the matter is awaiting its first hearing, yet to be scheduled.

Challenging the conviction

Floyd’s attorneys at the Innocence Project of New Orleans have found an evidence log from the Hines case, which apparently was withheld by the police at the time from Connick’s office.

The logs of fingerprints lifted from a whiskey bottle at the scene were labeled by analysts “Not victim” and “Not John Floyd.” Police also withheld fingerprint evidence from whiskey glasses at the Robinson scene labeled “Not victim” and “Not John Floyd.”

Previously undisclosed fingerprint logs indicate that John Floyd's fingerprints were not at the Hines crime scene.

The actual fingerprints from the case, along with other evidence, have since been destroyed.

Floyd’s attorney, Emily Maw with the Innocence Project of New Orleans, said Floyd’s original defense attorney certainly would have raised the fingerprint issue at trial, had he known about it.

Apart from the new fingerprint evidence, Maw and her colleagues have raised another question in Floyd’s case.

In Germany, Maw’s colleagues tracked down John Clegg, a friend of Hines, who swore in an affidavit that he told Dillman in 1980 that Hines had a sexual preference for black men — something Dillman never repeated at Floyd’s trial, but which is consistent with the finding of a black man’s pubic hair at the scene of the Hines murder. It is also consistent with the fact that all evidence pointed toward a common perpetrator, and that perpetrator being most likely a black man in the Robinson case.

Instead, Dillman wrote in his report on the case that he had learned that Hines was involved in sexual activities with both black and white males and that he was “very indiscriminate.” But that did “not accurately reflect the information I gave Det. Dillman,” Clegg wrote in his statement.

“When I heard Bill had been murdered by a man who he apparently picked up in the French Quarter, I assumed the killer would be black because Bill was attracted to black men,” Clegg wrote. “I was very surprised when I learned…that the man arrested for Bill’s murder was white.”

Standing up for the office

As he has in previous cases, current District Attorney Leon Cannizzaro is defending his predecessor. His office successfully fought the case in the state courts and is planning on doing the same at the federal level.

Even though the fingerprint evidence was not turned over to Floyd’s attorneys at the time, Cannizzaro’s office continues to insist at court hearings that Connick’s prosecution of Floyd was sound. Connick and Cannizzaro declined to discuss specifics of Floyd’s case because of the pending federal appeal.

Cannizzaro’s assistant attorneys have argued that any number of people could have handled the whiskey bottle at Hines’s French Quarter apartment because he often hosted parties there, even though Floyd’s mention of drinking whiskey in his confession was a crucial part of the prosecution’s case in 1982. The whiskey bottle was found on the kitchen table in Hines’s otherwise immaculate apartment, with two glasses.

Floyd’s suggestibility

It is not clear how many drinks Dillman and Reilly bought Floyd before taking him back to police headquarters. At trial, Floyd said the police bought him “five or six beers” before arresting him; Dillman said they were only at the bar together for 10 minutes and didn’t mention any drinks. Reilly testified that the pair bought Floyd a drink. Floyd’s attorneys obtained copies of a transcript from an un-aired television documentary shot in 1998, in which Dillman told his interviewers: “We started buying him drinks.”

Dillman told the judge at trial that he believed Floyd’s confession to murdering Hines was credible because it contained details of the crime scene that only the killer could have known. But in a book Dillman later wrote about the case, he admits to showing Floyd pictures of the crime scene. And he told the documentary crew the same thing in 1998, according to the transcripts obtained by Floyd’s attorneys.

“I think what finally broke him was I showed him some of the scene photographs,” Dillman said, according to the transcript. “I forget which one I showed him, I showed him one of the scene photographs and one of the bodies.”

Floyd works with dogs and horses at the State Penitentiary at Angola, winning praise from warden Burl Cain. Photo courtesy of the Innocence Project of New Orleans

Maw said Floyd’s confession contained details that could be gleaned from the photographs. Furthermore, police moved the body before taking the crime scene photographs, from a fetal position on its right side partially under the bed, to lying prone next to the bed. Floyd’s confession describes the position of the corpse after it had been moved by police, not as the murderer left it.

Maw had Floyd examined by a forensic psychologist at Angola in 2009. The psychologist, Dr. Gregory DeClue, found no evidence that Floyd was faking the test, that he had an IQ of 59, and that he “showed a high level of suggestibility.”

“Mr. Floyd was extremely vulnerable to police influence, and extremely susceptible to police pressure at the time of that interrogation,” DeClue wrote in his report.

Floyd’s childlike reading and comprehension skills make a written confession from him unusually unreliable, Maw said. And Floyd’s proven false confession to the Robinson murder also contains several remarkable similarities to his confession the Hines murder. For example, the narratives are the same.

Floyd claimed to have met both men in Bourbon Street bars, had drinks, realized that the victims were gay, gone for another drink at another bar before returning to the victim’s places to have sex, then “going berserk” with a knife pulled from his boot. After both stabbings, Floyd claimed to run out of the room, and go back to Bourbon Street to continue drinking.

Dillman’s credibility

Maw has also argued that Dillman’s questionable conduct in other cases since the Floyd prosecution is a reason to be suspicious of his investigation.

Dillman did not respond to a letter sent to his last known address seeking comment on this story, and he was not at home when a reporter visited.

In 1987, the Louisiana Supreme Court suppressed a 1978 confession in State v. Seward obtained by Dillman and two other New Orleans Police Department detectives. The court found that “at the least, the evidence preponderantly establishes that Seward was beaten.”

In 1991, the same court reversed a conviction in State v. Knapper, based on a Dillman investigation.

In 1995, Dillman was named and had his credibility directly questioned by the U.S. Supreme Court when it overturned a capital murder conviction arising out of another Dillman investigation.

In that case, Dillman convinced a supposed witness to identify Curtis Kyles in the murder of housewife Delores Dye during a robbery outside a Schwegmann’s grocery store in Gentilly. But the witness, Darlene Kersch, later recanted during the appeals process and Kyles’ conviction was thrown out. Kersch told the appeals court that Dillman had charmed her into identifying Kyles, who is black, even though she could not actually place at the scene of the crime. She quoted Dillman as saying her testimony would help “to put another nigger away.”

Connick tried to prosecute Kyles again but eventually dropped the case.

Dillman removed most of his files on the Floyd case from police headquarters in 1988 to write a book called “Blood Warning: The True Story of the New Orleans Slasher.” The files were later destroyed at his home during Hurricane Katrina — Maw contends that injuring public records in this way is a criminal offense for which Dillman should be prosecuted.

In his book, Dillman dwells on apparent inconsistencies between Floyd’s confession and the blood-test evidence that cleared him in the Robinson killing. To counter the inconsistencies, Dillman called Floyd a “sweet-faced, murderous liar,” and suggested that perhaps, “the crime lab had made a mistake” with the blood evidence.

Records show Cannizzaro hired Dillman as an investigator in his office’s Cold Case Unit in July 2009. Dillman listed Cannizzaro as a reference in his application for the job, leaving his post after a year and a half, in January 2011.

Maw said Cannizzaro’s decision to hire Dillman “illustrates that Mr. Cannizzaro hasn’t actually moved on from an era in which people in New Orleans were wrongly convicted at a remarkable rate.”

Cannizzaro spokesman Chris Bowman wouldn’t take the bait.

“A part of Ms. Maw’s strategy in representing people who have been convicted of heinous crimes is to try to tear down the District Attorney’s office in defending those convictions. I’m not going to address her comments, specifically, about a former member of the District Attorney’s staff. I’m just not going to do it.”

Connick said wrongful convictions may have taken place under his regime, but that Maw is exaggerating their frequency.

“I don’t know what Ms. Maw’s definition of ‘remarkable’ is,” Connick said. “But I don’t think those wrongful convictions were at a remarkable rate.”

Maw disagrees.

“I think that 10 proven wrongful convictions are surely only the tip of the iceberg,” Maw said. “But even if they were not, that is 10 innocent lives, which is perhaps not remarkable to Mr. Connick, but should be to everyone else. 

A pattern or a few exceptions?

Keeping hold of evidence that might convince a jury to acquit a defendant is a violation of a 1963 U.S. Supreme Court judgment in Brady v. Maryland.

In the most recent New Orleans case before the U.S. Supreme Court, Cannizzaro’s office argued for Smith’s conviction despite the failure of Connick’s office to turn over contradictory statements by the lone eyewitness to Smith’s alleged crime.

In January, the Supreme Court ruled 8-1 against Cannizzaro’s office in the Smith case, agreeing that Connick’s failure to turn over the eyewitness’s statements, which were favorable to the defense, was indeed a Brady violation.

Justice Antonin Scalia asked Assistant District Attorney Donna Andrieu in court in November why she didn’t just abandon her argument that an eyewitness’s statements weren’t “material” to the case.  Justice Elena Kagan also asked Andrieu: “Did your office ever consider just confessing to error in this case?”

Ten people have been fully exonerated in Orleans Parish because of Brady violations since the Connick era. A full exoneration means the accused had the conviction reversed, and the person was either acquitted in a retrial or charges were not brought again, based on new evidence. In more than 20 other cases, courts found Connick-era prosecutors did not turn over evidence favorable to the defense, but those cases are either still ongoing or have been disposed of otherwise.

Cannizzaro’s office was ordered in 2007 to pay $14 million in damages to death row exonoree John Thompson after a federal jury in New Orleans found that Connick’s prosecutors hid blood evidence favorable to Thompson before trying him for a murder and carjacking. But the U.S. Supreme Court overturned the $14 million award in May 2011, in a narrow majority ruling by conservative justices, saying Cannizzaro’s office could not be held responsible for the actions of a rogue prosecutor and that Thompson had failed to prove that there was a systemic pattern of Brady violations under Connick.

Dissenting, Justice Ruth Bader Ginsburg and her more liberal judicial colleagues argued: “misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.”

Maw said Cannizzaro is keen to avoid further discussion of Brady violations under Connick’s reign.

“Obviously the District Attorney’s Office would like to prevent revisiting the issues raised in Connick vs. Thompson, with a record of an even more complete pattern,” Maw said.

The Floyd case differs from the Thompson case, in that it involves police withholding evidence from prosecutors, not prosecutors withholding evidence from the defense attorneys. Still, the Brady case law makes no distinction between the two – both violate an accused person’s rights because favorable evidence doesn’t get to the defense attorneys.

Maw describes the Floyd case as a “particularly egregious example” of bad practice in a Connick-era prosecution, in which evidence was withheld.

Connick prefers to let the verdicts speak for themselves. But he said the number of cases in which Brady violations occurred was “miniscule compared to the total number of cases that were handled in that office.”

“Over 29 years we had 14,500 jury trials, and many of those jury trials had to do with motions filed for evidence, many with Brady motions, and over that period there were a handful of Brady violations, which I think are unfortunate, but that does not constitute a pattern or a pervasive practice,” he said.

LeBoeuf, with the ACLU, is strident in her criticism of the process that led to Floyd’s conviction. She describes the effort as “a case filled with crap…with lies,” and the Orleans Parish criminal justice system at the time as a “sinkhole of corruption.”

Louisiana Supreme Court Justice Bernette Johnson provided a less vitriolic, but still skeptical, dissenting opinion on the Floyd case in May 2011.

“Considering all of the evidence, including Floyd’s false confession to the murder of Robinson, Floyd’s low IQ and susceptibility to suggestion, the missing police records, the lack of evidence linking Floyd to the murder of Hines, the exculpatory value of the fingerprint evidence, defendant is entitled to a new trial,” Johnson wrote.

Johnson and two of her colleagues were out-voted on the bench by four other judges, who did not provide an explanation for their position.

Screening the cases

Maw said this effort isn’t just about the Floyd case. She said she’d like to see a system where Cannizzaro is more selective in backing Connick prosecutions.

“The District Attorney’s office now in New Orleans is using very poor judgment in terms of the Harry Connick era, in making decisions about which cases it chooses to defend,” Maw said. “At no point was Mr. Cannizzaro inspired to say, ‘This is a case that we should look at, this is not a case that we should take a knee-jerk reaction on, and defend,’ which is what they have done in so many cases and have just been called out on, really, by Justice Scalia in the Supreme Court.”

Like Connick, Assistant District Attorney Bowman said Maw is simply advocating for her clients.

“She’s a defense attorney, and because of her job, she represents people who have been convicted of very serious crimes,” Bowman said. “I’m not going to get into the nitty-gritty, but I think the record that our office has on these issues speaks for itself. We evaluate each case, and some cases we decide have merit, and some do not have merit. There is no basis for saying we have a knee-jerk reaction to cases.”

Connick, meanwhile, disagrees with any portrayal of a pattern of bad behavior in his office.

“There have been characterizations by people in the media and a few defense attorneys who have come out with a set of words to describe my office,” Connick said. “And ‘pattern’ is one of them. There’s no pattern. The only pattern we had was one for hard work, trying a lot of cases, getting a lot of convictions, answering the appeals, and losing very few of them.”

Both LeBoeuf and Maw said Cannizzaro could do more to improve the credibility of his office by establishing a review panel for cases like Floyd’s, where evidence appears to have been concealed and there are outstanding questions about possible innocence in cases that cannot be resolved simply by a DNA test.

Maw points to Dallas County District Attorney Craig Watkins, who opened a Conviction Integrity Unit to investigate cases of potential innocence.

“People from his office have said that confidence by citizens of the county in their District Attorney is going up,” Maw said. “And juries sitting in cases in Dallas County now have every confidence that their district attorney is as careful as he can possibly be to bring the right person to trial because he’s demonstrated that commitment to accuracy through this conviction integrity unit. And unfortunately there’s been no equivalent to that or no equivalent reaction from the district attorney in New Orleans.”

Bowman said that policies and procedures are now in place at Cannizzaro’s office to try to prevent future Brady violations.

“We’ve been very aggressive in instituting these policies, and we do evaluate older cases on an individual basis,” Bowman said. “I don’t know what they have in Dallas, but I know that each case in which allegations are raised is looked at by our office. And some cases have merit, but the overwhelming majority of these cases are people making baseless accusations, and when we come across those, we deal with them appropriately.”

In addition to the ACLU and the Innocence Project of New Orleans, Floyd has another ally that doesn’t usually come to the aid of convicted killers: the warden of the State Penitentiary at Angola, Burl Cain.

Through a spokeswoman, Cain declined to be interviewed for this story. However, he talked about Floyd in a story in New Orleans Magazine.

“Floyd is one of the inmates who I don’t think would hurt anyone again,” Cain said in a 2007 story about Floyd’s unsuccessful attempt to win parole. “He is totally rehabilitated.”

 

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