Read Part 1: The Strange Career of Judge Frank Shea and Part 2: An Oral History of Section G.
In 1984, George Toca’s young life had the potential to end in a young death at the hands of the state. He was 17 years old and charged with first-degree murder. A conviction in Louisiana would result in one of two sentences: life in prison without the possibility of parole or the death penalty. He was set to be tried in Section G of New Orleans Criminal District Court, in front of Judge Frank Shea.
Toca was cold, he recalled, and terrified, at his first appearance in court, but Judge Shea offered him some words of relative comfort.
“He looked me in my eye,” Toca said in an interview with The Lens, “and promised me that, ‘George, you’re in my court today, charged with these capital offenses, facing the death penalty, and I’m going to see that you have a fair trial. You are going to have a jury trial, and I’m going to see to it that you have a fair trial.’”
Toca was being charged with the murder of his best friend, Eric Batiste. Prosecutors alleged that Toca and Batiste were engaged in a robbery when Toca accidentally shot Batiste. Toca claimed that he had been at the MRV motel on Ursulines Avenue during the time of the incident.
Prosecutors tried to debunk that alibi, in part, with testimony from motel management that it was against policy to rent rooms to minors. Years later, the Innocence Project New Orleans, which had taken on Toca’s case, gathered testimony from multiple people who said they routinely rented rooms at the motel when they were minors.
That wasn’t the only problem with the state’s case that the Innocence Project found later on. Two key witnesses, the targets of the attempted robbery, initially described the shooter as being about five to seven inches taller than Toca, though they accurately described Batiste’s appearance. Nor did they describe what IPNO called Toca’s “most distinguishing characteristic,” four gold teeth with designs of moons and stars. In a 2009 affidavit, In a 2009 affidavit, Toca’s trial lawyer, Henry Julien, said the state never handed over those witness descriptions.
“I would have howled about that information at trial if I’d had them,” he said.
When Toca finally went to trial a year later, in 1985, what transpired did not live up to Shea’s assurances.
“It’s ironic,” Toca said. “When I got to court, Judge Shea was the one who destroyed my chances of a fair trial. He promised me a fair trial, but he turned around and forfeited it.”
The trial lasted a day and a half. Throughout the proceedings, Shea was combative as usual, intent on moving things along.
“Mr. Julien, you and I have known each other for a long time,” he told Julien, at one point. “Don’t run over me when I make a ruling.”
He was equally combative with one of the prosecutors, Dolores Smith. When Shea told her to move on from a line of questioning, she offered a mild protest. “We don’t argue, Ms. Smith,” Shea said. “I do not argue with attorneys, I rule, that’s it.”
“It didn’t take as long as it should have,” Julien, who died last year, recalled of the trial in a 2017 interview. “Shea was rushing people in that case.”
But the real injustice in Toca’s eyes didn’t come during the presentation of evidence or arguments, but after. On the afternoon of the second day of trial, the jury went off to deliberate. Toca was sitting in the back for five or six hours. Eventually, according to Toca, a bailiff came and brought him into the court. But no one was there. Then, after a few minutes, Toca saw Shea emerge from the jury room.
Toca doesn’t know what was said, and the interaction was not recorded in the trial transcript. Toca recalls Shea attempting to treat the situation as innocuous. Toca himself did not understand exactly what was going on, but could sense something was wrong.
“I believe he told them, ‘Look, I know he looks young, and he’s facing the death penalty or whatever, so you have a problem with first degree. But you can’t give him no manslaughter. Just give him second degree,’” Toca said. “Or something to that effect. And they come back out and all twelve guilty.”
Toca’s lawyer also recalled the incident, but he said it was routine practice in Shea’s court.
“If he thought the jury was taking too long he would saunter into the jury room and ask them what was holding them up,” Julien recalled. “I didn’t think it was legal. But he would do it.”
Years later, a lawyer working on Toca’s case after he was convicted actually tracked down one of the jurors, who described what happened in an affidavit.
“We had some trouble reaching a decision,” she wrote. “There was a split and some of us had doubts. I wasn’t totally convinced that Toca wasn’t at the hotel. The judge came into the jury room to help us with our questions. He was quite a personality. He said that he appreciated us trying to be thorough, and taking time to talk, but could we please try to keep an open mind about coming to an agreement, and try to come to an agreement. He was trying to help us reach a consensus.”
According to the American Bar Association, “Any communication between the judge and jury should be in the presence of lawyers for each side or with their knowledge.”
According to Toca, Julien told him he wasn’t able to bring up the incident in his 1989 direct appeal to the Louisiana Fourth Circuit Court of Appeals because he had failed to object to it at the time, and the only reference to Shea’s communications with the jury in that court’s decision concerned his jury instructions about the definition of manslaughter.
His conviction was affirmed, and Toca went on to spend thirty years of his life in prison.
“I was convicted, based on he being the judge and the jury,” Toca said. “You know?”
‘A common bond’
Many who were tried in front of Judge Frank Shea could sense the combination of factors were already working against them: inadequate representation, aggressive and sometimes unethical prosecution, the many manifestations of racism — implicit, explicit, systematic, and historical. All of these factors, then, were amplified in Shea’s court, where the prevailing concern was not careful reflection and consideration, but speed.
At least three other men who were given life sentences eventually had their convictions overturned or pleaded to a lesser crime in order to be released from prison after questions were raised about their guilt — Calvin Duncan, Isaac Knapper, and Elvis Brooks.
“Everyone who had Shea had a common bond,” said Toca.
The methods Shea used for ensuring that things moved quickly in his courtroom were varied. There were procedural habits, interpersonal expectations, and an understood culture of expediency. They affected everything about a trial, from the way lawyers interacted to the way the jury was selected and deliberated. For defendants, those things often converged to look like a grand conspiracy that ensured they would be found guilty.
Throughout his career, Shea — who died in 1998 —experienced a series of almost unimaginable tragedies in his personal life. As The Lens and The Atavist previously reported, Shea’s 11-year old son drowned in a canal in 1981. His body washed into Lake Pontchartrain where it was found after a 40-hour search. Then, in 1987, Shea’s wife and daughter were both killed in a house fire. Shea was home when the fire started, but was rescued. The fire was determined to have been started by “careless smoking.”
“It is a common feature of our work to see very quick trials that lead to a young black man being sent to prison for the rest of their lives for a crime they did not commit,” said Richard Davis at the Innocence Project New Orleans. “I’ve never seen it anywhere worse than in Judge Shea’s courtroom.”
But it’s unclear what, if any, the effect of those personal tragedies had on the way he ran his courtroom. The Lens attempted to reach out to Shea’s family members, including his brother, former municipal Judge John Shea, who declined to comment for this story. Others did not return repeated calls.
Talking to attorneys who practiced in front of him both before and after those incidents, it is hard to determine a dramatic shift in Shea’s demeanor. The events don’t seem to have turned him into a softer, slower, more contemplative judge — but neither were they the cause of his regular belligerence.
“I don’t think it jaded him,” said Franz Zibilich, the current Judge in Section L of New Orleans Criminal District Court, who practiced in front of Shea in the ‘80s. “I don’t think it interfered with how justice operated for him.”
‘And he did sputter’
Among Shea’s methods to expedite trials was streamlining the jury selection process, which can take days or weeks in other courts. And like other elements of Shea’s personality and behavior, depending on who you ask, his voir dire was either unjust, expedient, or just sort of strange.
Ernie Chen, a prosecutor who practiced in the ‘70s in front of Shea, recalled that Shea only allowed attorneys to pose questions to the entire panel of jurors, rather than individuals. He found that unusual.
“I don’t think it’s done anywhere else before or since,” Chen said. “He pushed people along.” But he didn’t find it objectionable.
Neither did Kevin Boshea. Boshea, a defense attorney, claimed the pressure of having to get it right the first time, knowing Shea would not allow him repetitive questioning, forced him to become good at it.
“‘Gentleman, you understand the rules, there are no repetitions,’” Boshea recalled Shea telling him. “That means, I get one shot at this entire venire, to present every issue involved. Now he’ll let you present every issue involved. One time. You forget to mention something, you’re SOL. Period.”
Mike Riehlman looks back on it differently.
“I don’t think it was very fair,” Riehlman said. “Although I find it tedious now — thirty-five years into the game, I hate listening to jury selection because it is tedious. His job was just to put up with the tedium, and let the questions be asked. And I don’t think he did that.”
In George Toca’s case there were irregularities in the jury selection process as well. An attorney who worked on his case following his found that a woman who had known a prosecutor on the case for over 15 years was able to serve on the jury. In addition, a woman whose cousin had been killed in a robbery and shooting similar to the one Toca was accused of was also seated on the jury.
“The trial judge apparently improperly pushed to have voir dire completed as quickly as possible, and this meant that the jury that day had not been properly screened to eliminate jurors who might have personal biases,” Toca’s post-conviction lawyer wrote in a 2006 filing. “Compounding the problem, trial counsel offered no objections and made only token efforts to seriously question prospective jurors to examine their possible prejudices in the case.”
But it’s possible Toca’s trial lawyer, Henry Julien, understood what the consequences might be if he attempted to draw out the jury selection process. It’s something Ron Rakosky learned when he was a young defense attorney handling a murder trial of a man named Julius “Peanut” Carter in front of Frank Shea.
Carter was facing the death penalty, and in capital cases, jurors are only allowed to serve if they are willing to consider the possibility of the death penalty if the defendant is found guilty. Part of the jury selection process is determining where each potential juror stands on the issue, and if the court determines they are unable to consider the death penalty, they are disqualified from serving.
But Rakosky had an idea. If a juror needed to be willing to consider the death penalty, shouldn’t they also need to be willing to consider the alternative—life without parole? He began questioning jurors on their willingness to consider life without parole in the event of a guilty verdict.
“And lo and behold, guess what you find?” Rakosky said. “Some people say if he did it, send him to the gas chamber right now. You know, burn him. I would never consider life. Well, I had never seen that before. But more importantly, he [Shea] hadn’t.”
According to Rakosky, Shea initially resisted his line of questioning, but when he began to see the answers the prospective jurors were giving, he “realized it was a completely fair request.” Shea allowed the questioning to continue, but as it played out, Shea became visibly perturbed. “It had him sputtering,” said Rakosky. “And he did sputter.”
Carter’s first trial lasted five or six days, and ended in a hung jury. That meant that Shea had to sit through the whole ordeal again. Eventually Carter was found not guilty.
“He wasn’t furious that the guy was acquitted — and he was acquitted the second time,” said Rakosky. “But he didn’t want to go through that anymore, if trying cases was going to take that long with me.”
From that point forward, Shea developed a strategy for avoiding the potential lengthy trials with Rakosky as a defense attorney.
“He ordered his minute clerk to give me a new date every time I came into his court.” Rakosky said. “‘Give him a new date. Give Rakosky a new date. Give him a new date.’”
For Rakosky, this was a benefit. As a defense lawyer, he explained, when you are granted a continuance, “if your client isn’t in jail, you just say thank you and leave.” By the time Shea retired in 1996, Rakosky had two cases on his docket that had gone past their statute of limitations. When those cases came up on the Section G again, the new judge was forced to throw them out.
‘The record’s not going to reflect anything’
But Rakosky was not the only lawyer Shea did not want practicing in his court, and some did have clients in jail. At times, Shea went even further than continuing cases in order to keep certain lawyers from practicing in front of him. He barred them from representing their clients.
In 1995, near the end of his career, Shea gained the attention of a reporter when he refused to allow Nick Trenticosta and Denise LeBoeuf to represent their client Curtis Kyles in a new trial after his 1984 conviction for first-degree murder that put him on death row was overturned by the United States Supreme Court, and similarly wouldn’t allow the Tulane Law Clinic to represent a man who sought their counsel.
Trenticosta and LeBoeuf had been representing Kyles for years in his post-conviction proceedings following.
When Trenticosta and LaBoeuf tried to file pre-trial motions on behalf of Kyles, Shea told them they had no standing to do so. Instead, he tried to appoint a public defender to Kyles’ case. Eventually, his ruling was overturned by the appeals court.
“We’ve had a problem with Shea for years that we don’t have in any other court that I’m aware of,” Bette Cole, then-director of the Tulane Law Clinic, said at the time. “He’s never been friendly to the clinic, not out of any ideological bias, but because he likes everything to be familiar and then he doesn’t have to work that hard.”
Trenticosta had a slightly different take.
“I don’t know what his problems with us were, but it seems safe to assume he doesn’t like to have good advocates for defendants on his docket,” he said.
In both instances, according to a news article from the time, Shea also tried to cover up the rulings by demanding the interactions be stricken from the record.
“Let the record reflect the judge has left the bench and refused to allow Mr. Kyles to file in his own behalf a motion and memorandum of law,” Trenticosta said in court.
“The record’s not going to reflect anything,” Shea responded.
In that instance, the court reporter did not follow Shea’s instructions and the interaction was recorded in the transcript. But when he ordered a new attorney for Charles Taylor, forbidding the Tulane Law Clinic from representing him, the discussion was in fact stricken from the record, and no transcript exists.
“I’ve got 20 years experience practicing law and I’ve never seen anything like it,” Cole said at the time.
‘They put their schemes together’
In 1979, Isaac Knapper was a boxer.
“I was like 19-0 as an amateur, I was two-time Golden Gloves champion, one-time Silver Gloves champion,” Knapper said recently. “And I was training for the Junior Olympics when I was picked up for a crime I didn’t commit.”
Knapper was just 16 years old when he was arrested and accused of killing a man named Ronald Banks — a professor from Maine in New Orleans for a history conference.
The attorney Knapper’s mother wanted to hire for her son’s defense was a man named Clyde Merritt. Merritt worked both as a public defender and private defense attorney, and was known for being combative. Former New Orleans judge Calvin Johnson worked for Clyde Merritt when he was in law school. He described Merritt’s style as “take no prisoners.” To this day, the public defender’s office in New Orleans presents a Clyde Merritt award in honor of Merritt’s “commitment and fight for the cause of indigent defense.”
But there was a problem. Merritt and Shea didn’t get along. In fact, Johnson said the first memory he had of Shea was him throwing Merritt out of his courtroom. And by the time Knapper’s mother approached Merritt about her son’s case, it seems Merritt wasn’t allowed to try cases in Shea’s courtroom at all. As Merritt would put it later, it was because he was “too ornery, too aggressive and made too many objections.”
But Merritt had an idea. If he could get Robert Zibilich (father of Franz Zibilich) to try the case with him, another defense attorney who was close with Shea, he might be allowed back in.
“That’s when my mom hired Clyde Merritt and Robert Zibilich,” Knapper recalled.
Zibilich, it seems, had the opposite reputation among judges and attorneys, which is to say, he was well liked. A decision years later by the Louisiana Attorney Disciplinary Board would note that the evidence was clear “Mr. Zibilich was an experienced, respected criminal defense attorney who was well respected by Judge Shea.” Another attorney had testified that Zibilich was well liked by prosecutors as well, who trusted him and would regularly share their files with him. That same lawyer said prosecutors tended not to trust Clyde Merritt, and would not share their files with him.
At the time, Harry Connick led the DA’s office. Connick and his prosecutors were known for being aggressive, sometimes to the point of bending or breaking the rules. Convictions under Connick’s tenure have faced dozens of successful court challenges, in many cases because prosecutors failed to disclose evidence that may have favored defendants, as they were legally required to do.
When Knapper finally went to trial, the difference in his two lawyers’ styles came to a head.
“Clyde Merritt didn’t agree with the way Robert Zibilich was handling the case,” Knapper recalled. “Because every time the prosecutor would say something, Robert Zibilich wouldn’t object to it and Clyde Merritt was getting upset. He said ‘Why don’t you object to that!’ And Clyde Merritt said, ‘Oh something ain’t right.’ So Clyde Meritt knew that Robert Zibilich was working with the prosecutors.”
The single day trial ended in a guilty verdict for first degree murder. The state’s case rested primarily on the word of the alleged co-conspirator in the murder, who had been charged himself with first degree murder, but instead took a manslaughter charge and testified against Knapper.
When Knapper was found guilty, he said that Zibilich, his supposed advocate, didn’t say a word to him. Instead, he walked over to the family of the victim and asked if they were satisfied.
“In fact, when he found me guilty, Robert Ziblich didn’t say anything to me or my family, he went right over to the victim’s family, and hugged them, and asked them was they satisfied,” said Knapper. “And then he left out the courtroom without saying anything to me and my family. I never seen him again after that, because he never came to see me even after they put me in the holding cell. From that day in that courtroom when they found me guilty, I never saw him again.”
Robert Zibilich died in 1986.
From Knapper’s perspective, what happened in his case was part of a broader culture of complicity and racism in Judge Shea’s courtroom that bordered on conspiracy.
“They looked like family,” Knapper said. “They played golf together. They lived around each other. And they stick together. They plot who’s going to be the next victim in that section, and especially if it’s a black person. That’s what they do. They plot on ya, they put they schemes together, and they even get with some of the lawyers. If you got the wrong lawyer, and if he’s not part of their little thing, they’ll make a way to mess over him.”
‘Not for justice, but for him‘
Isaac Knapper was exonerated in 1991 after the Supreme Court found the prosecution in Knapper’s case failed to turn over a detective’s report that contained exculpatory evidence.
Toca’s case, on the other hand, was set to be heard by the United States Supreme Court in 2015. In 2012, the court had determined that sending a juvenile to prison for life without the possibility of parole — as Toca had been — was unconstitutional. They decided to hear Toca’s case in order to determine whether that ruling should be applied retroactively. That’s when the current District Attorney, Leon Cannizzaro, offered Toca a plea deal on the condition that he would withdraw his case.
Toca took the deal. It got him out of prison, but he had to plead guilty to manslaughter in what is known as an Alford plea, which allows a defendant to maintain their innocence but admit that the prosecution has enough evidence to secure a conviction. Others in Toca’s position who hoped the Supreme Court decision might get them out would have to wait until for another year, when the Supreme Court ruled on the issue in 2016. They found that their ruling did apply retroactively.
It’s possible that even if they had been in front of a different judge, Isaac Knapper and George Toca would still have been found guilty. Orleans Parish has the highest rate of exonerations per capita of any major county in the United States, according to a 2015 report by the National Registry of Exonerations. Not all of those wrongful convictions came out of Judge Shea’s courtroom.
But the two cases illustrate defining features of Shea’s behavior and the culture of his courtroom. In Knapper’s case, Shea’s refusal to allow a lawyer to practice in his courtroom without a co-counsel undermined his defense, and deflated the adversarial nature of the system as a whole. In Toca’s case, Shea rushing the jury interfered with what was meant to be a careful deliberation.
And in the opinion of both Toca and Knapper, it was Shea’s desire to save minutes or hours of time that led to the decades they spent behind bars.
“As a 17-year-old kid who believed in the justice system, he shattered my faith. He played a critical role in destroying my life,” Toca said. “He took over the jury and manipulated and persuaded them to do what he wanted them to do. They came back with a guilty verdict. Not for justice, but for him.”