For example, the jury heard the FBI wiretap tapes in which Davis discussed with Hardy a murder he thought Hardy had ordered:And you can't go to jail for putting a hit on somebody, Paul. D.Although Len Davis can distinguish right from wrong and deserves to be held accountable for his actions, his behavior was negatively impacted by the stress of working in a high crime area, being shot at on numerous occasions, including on one occasion being shot in the stomach while coming to the assistance of fellow officers. In April, the officers agreed to protect a drug shipment, then stunned an agent posing as a big-time cocaine dealer by showing up in uniform, Gallagher said. Real cocaine - more than 130 kilos - was used throughout the sting, as was real money, $97,000 of which was distributed to officers in payments as large as $6,000. During the first or eligibility phase of the trial, Williams testified that Davis introduced him to Hardy. A. The final instruction to the jury read, in relevant part: A killing is committed after substantial premeditation when it is committed upon substantial deliberation. 3592. FN19. Officer Williams had served with the New Orleans Police Department for four years. He is survived by his wife and two young children. I just got through watching Fatal Encounter, episode of Officer Ronnie Williams being shot and killed. Davis, Hardy and Causey are charged with conspiring to violate the civil rights of Groves by killing her, a crime punishable by death. In this context, the error is harmless if the answer is responsive to the question, correctly states the law, and no prejudice results. The fact is so reprehensible it demands a sentence of death. Would it surprise you if I said it was the Florida? She used her gun that she received from the department to kill all three people. Giglio applies the Brady rule to evidence affecting the credibility of key government witnesses. Causey v. United States, 530 U.S. 1277 (2000)..FN16. 3593(b); see also Jones v. United States, 527 U.S. 373, 407-08 (1999). At the conclusion of the hearing, the court agreed with the prosecutor that new information could be brought out at re-sentencing if Williams testified. 10. As the district court held, victim-impact evidence has been upheld as constitutional. Do not capitulate, be vigilant. As for whether a jury would naturally and necessarily construe a remark as a comment on the defendant's failure to testify, the question is not whether the jury possibly or even probably would view the challenged remark in this manner, but whether the jury necessarily would have done so. Id. [16][17][18] Davis is currently on federal death row and is imprisoned in United States Penitentiary, Terre Haute, Indiana. United States v. Davis, 912 F.Supp. Davis stated that trial testimony from FBI personnel revealed that Williams was promised witness protection for himself and his family in exchange for his cooperation, and that the Government would consider filing the 5K letter for Williams. Crime after crime is introduced and solved; cast members come and go. The FDPA provides that the Government may introduce as a non-statutory aggravating factor victim impact evidence including oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information. 18 U.S.C. Mark Mottola. Join the New Orleans Police Department. The victim-impact testimony here did not violate Davis's due process rights. Sinisterra is distinguishable from the facts here, where the prosecution did not urge the jury to send a message to other criminals. Thereafter, Davis refused to return to the courtroom for the second stage of the re-sentencing, but permitted his back-up counsel to proceed in his absence. Contrary to Davis's assertions, Morrison did not change the standard for determining whether conduct qualifies as state action, which here is synonymous with action under color of law. Rather, Morrison addressed Congress's constitutional authority to prohibit purely private conduct that does not qualify as state action or action under color of law. Although Len Davis can distinguish right from wrong and deserves to be held accountable for his actions, his behavior was negatively impacted by the stress of being shot at on numerous occasions. Authorities were targeting as many as 20 additional cops when the undercover investigation ended. Huh? We rejected Davis's Batson challenge in his first appeal. Although she didnt kill Officer Williams, she was just as guilty. To prove plain error, Davis must show (1) there was error, (2) the error was plain, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Jackson, 549 F.3d at 975.4. How dare he compare your dedication, your willingness to follow your sworn duty with the murderous rampage of Len Davis. 241 and 242 would not, as a practical matter, punish him for those offenses because he was already serving a life sentence on an earlier drug conspiracy offense.12 In rebuttal summation, the prosecutor also stated: But more importantly, as [defense counsel] told you, if you don't sentence him to death, this murder is a freebie. denied, 528 U.S. 829 (1999). The ultimate question before us, however, is not the impropriety of the prosecutor's remarks but whether these remarks were so inflammatory that they entitle the defendant to a new trial. United States v. Lowenberg, 853 F.2d 295, 301 (5th Cir.1988). all 80 Reflections, Reflections Terms of Use (revised 5/31/2012), View, edit or delete any Reflection you've left in the past. The fact is so reprehensible it demands a sentence of death. At the close of the selection phase hearing, the district court charged the following aggravating factor to the jury: That Mr. Davis poses a threat of future dangerousness to the lives and safety of other persons while imprisoned. The jury unanimously found that the Government had proven this factor beyond a reasonable doubt. In addition, the prosecutor's remarks did not communicate to jurors that they were legally bound to impose the death penalty or that they could not consider Davis's mitigating factors. A rookie New Orleans police officer is forced to balance her identity as a black woman after she witnesses two corrupt cops committing murder. He used his position and the NOPDs resources to orchestrate On October 10, 1994, Kim Groves witnessed an NOPD police officer pistol-whipping her nephew. The prosecutor also stated:Do not confuse mercy with weakness. at 330. However, admission of the evidence violates Davis's due process rights if it is so unduly prejudicial that it renders the trial fundamentally unfair. Bernard, 299 F.3d at 477 (citing Payne, 501 U.S. at 825). That shit ain't gonna fly, man. In United States v. Flores, 63 F.3d 1342 (5th Cir.1995), we construed the word substantial as used in the substantial planning and premeditation aggravator to denote a thing of high magnitude. 63 F.3d at 1373. A few minutes later, Groves died after being shot once in the head. For example, when discussing Davis's plan of the murder, the prosecutor stated: Hardy's going to be the executioner and they're [Davis and Williams] are going to clean it up. Then, the prosecutor asked Williams about his sentence, which was still pending at the time of his testimony: Q. During the second or selection phase of Davis's re-sentencing hearing, the Government presented evidence to prove that Davis posed a threat of future dangerousness while imprisoned, a non-statutory aggravating factor. The city of New Orleans had to endure the reign of terror of Len Davis and the murderers he was protecting. denied, 546 U.S. 1098 (2006), decided shortly after Miller-El, we determined that Miller-El did not change controlling law: [T]he [Miller-El] Court considered the type and quantum of record evidence required to demonstrate a Batson violation. Williams's sentencing judge was different from Davis's trial judge. Causey, 185 F.3d at 413-16; see also id. Ride along with the police officers, the firefighters, and the paramedics as they tackle the evils of the night. Substantial planning requires a considerable amount of planning preceding the killing. 11. In a pre-trial filing, Davis moved to strike this aggravating factor. The words substantial planning should be given their ordinary, every day meaning. Here, the remark was not directed to facts outside the record or unrelated to the evidence introduced at trial. In April 1996, Davis and his co-defendants were tried jointly before a jury. Create a free ODMP account now for these benefits: Create an account for more options, or use this form to leave a Reflection now. The fact is so reprehensible it demands a sentence of death. [19], Hardy was convicted of conspiracy to violate Groves' civil rights and of witness tampering. On several occasions, Len Davis answered calls for assistance from fellow officers who were being shot at and assisted in apprehension of the suspects, putting his own life in danger to save the lives of his fellow officers. In addition, the court's instructions regarding consideration of mitigation evidence ensured that the jurors considered the mitigation factors correctly. In 2018, the city of New Orleans settled a lawsuit with Groves' three children in the sum of $1.5 million. 1512(a)(1)(C) and 2. That shit ain't gonna fly, man. Williams and Duncan had been caught in Operation Shattered Shield and convicted on drug-conspiracy charges..FN5. The government must also establish beyond a reasonable doubt that the murder was committed after substantial planning for you to find this element proved. The categories at issue here relate to: (1) Davis's good character evidence (proposed factors 7, 8, 9, and 10); (2) the culpability and relatively lenient punishment imposed on other individuals involved in Groves's murder and the drug conspiracy (factors 1, 2, 4, and 5); and (3) the stressful and dangerous conditions of his job (proposed factors 11, 12, and 13). The district court sentenced Davis to death on October 27, 2005. at 1373. Fields, 483 F.3d at 360. Brady prohibits the Government from suppressing evidence favorable to the accused where the evidence is material either to guilt or to punishment. Brady, 373 U.S. at 87. See Bernard, 299 F.3d at 482 (concluding that evidence of propensity for orchestrated criminal activity in prison permitted finding of future dangerousness). The email address cannot be subscribed. The Government appealed. After driving Hardy home, Davis and Williams returned to Groves's neighborhood and searched for her again. It must, however, show that the defendant had a considerable period of time to become fully aware of what he intended to do and to think it over before he acted. Although the trial court failed to find a prima facie case of discrimination, it asked the prosecution to provide reasons for the strikes and, following the government's proffer and the defense's response, overruled the Batson challenges. 241 and 242). 938, 947 (E.D.La.1996). Nonetheless, we hold that the facts and circumstances of this case make the error harmless. 3592(c)(9). Sammy williams new orleans police officer; In 1990's the justice department said that New Orleans was the highest country with complaints of police brutality in 1994 there were than forty officers arrested for bribery, rape, bank robbery and Police . The citizens of the City of New Orleans wait for you to give them justice. At times, he said, the lives of undercover agents posing as drug traffickers were in danger. Jones, 527 U.S. at 388-89. They were contemplating taking an act of violence against the primary undercover agent. Therefore, the law of the case doctrine applies to foreclose review in this appeal. 2. Streed described several incidents in which Davis had been assaulted or threatened with violence on the job, and his subsequent behavioral changes including alcohol use and increased internal-affairs complaints brought against him. First, as to the prosecutor's argument that a life sentence would not be adequate punishment because Davis was already serving a life sentence for drug offenses, we conclude that any failure by the district court to correct the remarks was not plain error. Specifically, Davis argues that his conviction for violating Groves's civil rights was a lesser-included offense of his conviction for conspiring to violate her civil rights. Accordingly, review of this issue is foreclosed. While answering a fellow officer's call for assistance, Len Davis joined in the chase of 3 armed men and was shot in the stomach. The testimony and wiretap excerpts from Operation Shattered Shield revealed that Davis's sole motivation for ordering Groves killed was the complaint she filed against him. Gallagher said the yearlong investigation involved more than 60 federal agents from across the country and was conducted with utmost secrecy. According to Council President, Helena Moreno, its not about the pay. United States v. Johnston, 127 F.3d 380, 393 (5th Cir.1997) (prejudice mitigated by curative instruction and wiretap evidence to corroborate improperly solicited testimony in cross-examination). Or maybe they didn't do anything.". Q. Federal agents were monitoring the telephone lines as the killing was discussed, but were powerless to prevent it, Gallagher said. But advancing a different assessment of the evidence or urging conflicting inferences therefrom does not demonstrate a legal inadequacy in the government's proof. United States v. Fields, 516 F.3d 923, 943 (10th Cir.2008). Davis and Williams then drove to Groves's neighborhood in their NOPD patrol car and searched for her. See id. Next, Davis urges that the Government withheld material evidence about Williams in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). Causey was an associate of both Hardy and Davis. The Government asserts that the lead prosecutors do not recall whether the district court discussed the note with the parties. Upon conviction for a homicide, the FDPA provides for a separate, post-conviction penalty proceeding. FN4. FN7. See United States v. Davis, No. The officers indicted Wednesday - Davis, Williams, Sgt. Because there was no contemporaneous objection to the testimony, the line of cross-examination, or the prosecutor's arguments, we review each act of alleged misconduct for plain error. Special Agent Juan Jackson, the undercover FBI agent acting as a drug dealer, testified that Davis was a leader in what he thought was a major drug operation and increased his responsibilities in the operation in a few months' time span. Has the government-have I or any government attorney promised you anything? This briefing is insufficient for the purposes of Federal Rule of Appellate Procedure 28(a), and therefore the issue is deemed waived. Davis argues that Williams had an undisclosed plea agreement. 01-30656, 2001 WL 34712238, at *3 (5th Cir. Evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed [and t]here is no reason to treat such evidence differently than other relevant evidence is treated. Payne, 501 U.S. at 827. July 17, 2001) (issuing writ of mandamus that Davis be permitted to represent himself); United States v. Davis, 285 F.3d 378, 385 (5th Cir.2002) (issuing another writ of mandamus finding appointment of independent counsel violated Davis's right to self-representation)..FN2. FN8. And he said, oh, that's Paul. 241 and 242. How much investigating did you do, Dr. Streed, apart from the sheer and the bare numbers of the crime stats of 1994; I mean, did you compare things with '95? Under this or the plain error standard, Davis's claim fails..FN4. Meanwhile, he said, agents kept a close eye on Davis and were prepared to arrest him at "any time of the day or night. Follow the men and women who keep the citizens of New Orleans safe during the night. When a police officer murders a citizen in cold blood in retaliation for making a complaint against him, it always deserves the death penalty, period, without exception.13, Third, the prosecutor referred to the effects of Davis's actions on the broader community.14 The prosecutor also told jurors that they speak for [Kim Groves], asked jurors to return a death sentence for every tear that Jasmine Groves cried, and urged that Jasmine Groves waits for you to give her justice.. Government Exhibit LD-9 is the wiretap excerpt of a conversation between Hardy and Davis the evening of October 13, 1994, when Davis first mentions his desire for Hardy to kill Groves. "The pertinent conversations were spread out over a 10-hour period and were intermingled with many other discussions concerning their protection activity at the warehouse. Id. A. FN15. [6], In 1994, an FBI sting caught Davis enforcing a protection racket upon the city's cocaine dealers. In what comes as the latest disgrace to the already scandal-ridden Police Department, officer Len Davis, 30, is accused of conspiring with Paul "Cool" Hardy, 27, and Damon Causey, 24, in the murder of Kim Groves, 32, in the 1300 block of Alabo Street. Maybe there wasn't enough evidence. And I want you to listen to what I'm saying. The government must also establish beyond a reasonable doubt that the killing was committed after substantial planning for you to find this factor proved. The district court replied that she had two fundamental problems with the motion. In Murphy v. Dretke, 416 F.3d 427 (5th Cir.2005), cert. They think of Paul Hardy. As with the opening statement, the prosecutor interspersed his comments with excerpts from the wiretap tapes. And if you want to shed a tear, cry for all of the people who are denied justice because Len Davis was protecting those persons who victimized them. 472 (2008) establish that the district court erred in overruling his Batson challenges. at 1374. 3592, 3593(d). In Davis's first appeal, we stated, the district court's decision on the ultimate question of discrimination is a fact finding, which is accorded great deference. Causey, 185 F.3d at 413. That'd be the Feds with that shit. The factor states, in relevant part, The defendant committed the offense after substantial planning and premeditation to cause the death of a person. 18 U.S.C. Others who may be arrested include several officers from the 5th Police District, two from the 6th District, two from the 2nd District, one assigned to public housing and one from the juvenile division. FN5. If the cooperation was substantial, the Government would consider filing the 5K letter, but neither the letter nor a lighter sentence were guaranteed. As stated in Part III.B., supra, the jury was already aware that Davis and Hardy had been convicted for the murder of Groves, and that Hardy was the actual shooter. You give him life, you don't give him death, he won't be punished at all for killing, executing Kim Marie Groves. Start a rewarding career. (citing United States v. Murrah, 888 F.2d 24, 28 (5th Cir.1989)). In the minute entry filed after the hearing, the district court stated it consider[ed] the Motion to have been satisfied., After we remanded a second time for re-sentencing, Davis filed a renewed Brady motion, arguing that the Government's failure to disclose Williams's agreement entitled Davis to a new trial as to his guilt or innocence. We AFFIRM. The district court denied the motion, holding that victim impact evidence is relevant, admissible, and constitutional. Examples of the remarks include:He prayed [sic] on a community, this community, New Orleans, Louisiana, in the Eastern District of Louisiana that desperately needed, still needs protection from the likes of Len Davis.If you want to shed a tear, shed a tear for the city of New Orleans. Given the severity of the penalty in this case, we will review the claims separately..FN11. One of Hardy's favors, at Davis's request, was to murder Groves. 20 years ago: Restaurant killings, officer's arrest rocked city, NOPD. That led to a decision to shut down the operation, even as agents were gathering evidence on additional officers. This argument is also unavailing. The 2005 re-sentencing jury was different from the jury that convicted Davis in 1996..FN1. We're going to clean this department up.". A reasonable probability is a probability sufficient to undermine confidence in the outcome. In what is being called the largest case of police corruption in the city's history, nine New Orleans officers were charged in federal court Wednesday with accepting nearly $100,000 in bribes to protect a large-scale cocaine operation run by undercover FBI agents. Defense counsel offered correction to a typo but no substantive objections. . 242), Conspiracy to deprive rights resulting in death (18 U.S.C. A prosecutor is allowed to ask questions in cross examination provided he has some good-faith factual basis for the incidents inquired about. United States v. Bright, 588 F.2d 504, 512 (5th Cir.1979) (citation omitted), cert. Penry v. Johnson, 532 U.S. 782, 797 (2001). He won't be punished at all. Contact us. The district court had previously severed Davis and Hardy's re-sentencing hearings. College: Oklahoma. 3593(c), (d). FN19. 3593 (listing burden of proof for mitigating factors). The description matched what Groves had on at the time of her murder. Davis's re-sentencing proceedings began on July 25, 2005 before a jury.1 During the first stage of the re-sentencing, Davis elected to represent himself with appointed counsel serving as back-up.2 On August 3, 2005, the jury returned a verdict rendering Davis eligible for the death penalty, finding that he intentionally participated in an act contemplating that Groves would be killed, and did so after substantial planning and premeditation. Williams and Duncan had been caught in Operation Shattered Shield and convicted on drug-conspiracy charges. The district court denied the motion, holding that victim impact evidence is relevant, admissible, and constitutional. For if the defendant thinks of Kim Groves at all, it is only to ponder how he could have done this murder better. First, during closing arguments at the selection phase, prosecutors stated that sentencing Davis to life imprisonment for his convictions under 18 U.S.C. Davis's back-up counsel did not object to these statements.7. Next, Davis asserts that the indictment erroneously alleged a deprivation of the right to liberty rather than a deprivation of the right to life. Davis argues that the death resulting element of each charge meant he was effectively prosecuted for murder, even though the constitutional right he allegedly deprived the victim of, according to the indictment, was the right to liberty, not the right to life. "I will not tolerate it, " Pennington said. If not now, when? Before re-sentencing, the defense proposed the following written jury instruction, in relevant part, regarding the substantial planning and premeditation aggravating factor submitted by the Government: Substantial Planning and Substantial Premeditation. Williams's sentencing judge was different from Davis's trial judge..FN18. 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