Posted: Feb 14, 2013 6:45 PM by AP News
NEW ORLEANS (AP) - A federal judge has refused to disqualify himself from presiding over the retrial of a former New Orleans police officer on charges he fatally shot a man without justification in Hurricane Katrina's aftermath before another officer burned the body in a car.
Lawyers for David Warren argued that U.S. District Judge Lance Africk made comments on the case that could call his impartiality into question. On Wednesday, however, Africk said his criticism of Warren's conduct and credibility doesn't warrant his recusal.
Richard Simmons, one of Warren's attorneys, said the defense team won't appeal Africk's decision.
During sentencing, Africk said Warren's testimony about the shooting of 31-year-old Henry Glover was "contrived and fabricated."
"For you to suggest ... that Glover caused you to fear for your life by feigning the fact that he had a weapon in his hand is farcical," the judge said. "Henry Glover was not at the strip mall to commit suicide. He was there to retrieve some baby clothing."
Africk also commended federal authorities for unmasking Warren's "deceit."
In Wednesday's ruling, Africk said his comments during sentencing "were an articulation of sentencing law and policy."
"The court's past compliance with governing sentencing law cannot be said to show a deep-seated antagonism or favoritism or otherwise suggest that defendant's trial will be unfair" if Africk presides over it, the judge wrote.
The 5th U.S. Circuit Court of Appeals ordered a new trial for Warren in December, ruling Africk should have separated the former officer's trial from that of four other officers charged in Glover's 2005 death.
Unlike the other officers, Warren wasn't charged with participating in a cover-up. The 5th Circuit judges agreed with Warren's argument that the "spillover effect" from other evidence unrelated to the shooting, including the burning of Glover's body, prevented him from getting a fair trial.
Separate retrials for Warren and Travis McCabe, a former officer charged with writing a false report on Glover's shooting, were scheduled to start in March. On Thursday, however, Africk agreed to postpone them indefinitely. He is scheduled to discuss new trial dates at a status conference next Tuesday.
Warren and McCabe's lawyers have asked for their retrials to be moved away from New Orleans, citing negative publicity from the first trial and other police-related prosecutions. Africk hasn't ruled on those requests yet.