Deason Center works to seek prisoner release

Deason Center works to seek prisoner release

Federal court ruling could free New Orleans man serving 99-year term for armed robbery


BY MATT SLEDGE | msledge@theadvocate.com
May 14, 2018 - 4:45 pm
 
 
Not every juror was convinced that Troy Rhodes was the stick-up man who blasted a delivery driver in the gut with a sawed-off shotgun during a robbery in 2002.

Yet 10 out of 12 votes were enough to send Rhodes to the Louisiana State Penitentiary at Angola for 99 years. Louisiana is one of two states that allow non-unanimous jury verdicts in felony cases.

Now, Rhodes could soon be freed. A federal judge declared in March that his original lawyers performed so poorly that Rhodes was effectively denied a fair trial. She ordered the Orleans Parish District Attorney’s Office to release or retry him within 120 days.

His new lawyer says a “perfect storm” of bad luck led to her client’s conviction. Pam Metzger, a Southern Methodist University law school professor, says he fell victim to ineffective counsel, a bad identification by a heavily medicated victim and Louisiana’s divided jury rule.

“You just couldn’t have created circumstances that were more likely to predict an injustice being done,” Metzger said.

Two federal judges said it was bad enough that Rhodes' previous lawyers, at his trial and on appeal, failed to bring up a medical report showing the delivery driver had been prescribed painkillers before he identified Rhodes as his assailant.

Even so, New Orleans prosecutors say the deliveryman remains convinced that Rhodes was the shooter. They plan to appeal U.S. District Judge Jane Triche Milazzo’s decision tossing out his conviction.

Even if Rhodes wins at the 5th U.S. Circuit Court of Appeals, prosecutors say they will put him on trial again.

On the morning of June 19, 2002, David Blohm, a driver for Leidenheimer Baking Co., had just stopped at the A&D Food Store on Touro Street when a man hopped into the passenger side of his truck with a sawed-off shotgun.

Blohm handed over a wad of cash from the truck and then another from his wallet. The robber wasn’t satisfied.

"I told him I gave him everything I had," Blohm said at the trial, according to a Times-Picayune article at the time. "He leaned forward with the gun and pulled the trigger."

Blohm was taken to the hospital. He was in and out of consciousness, and unable to make an identification from a photographic lineup, on June 22 and 24. On June 25, the same day that he underwent liver surgery, he picked Rhodes as the shooter.

Blohm confidently repeated the identification at his trial, and he denied that he was under the influence of painkillers when he first identified Rhodes.

Nevertheless, there was doubt among the jurors. The jury remained undecided after four votes. When the trial judge asked if they could reach a verdict, the foreman seemed uncertain.

“I think there is some discrepancies about the testimony and some of the other eyewitnesses that testified in this case,” he said.

In the end, however, the jury voted 10-2 to convict.

Rhodes repeatedly appealed his conviction and 99-year sentence in state court. Eventually his bid for freedom gained traction in federal courts.

Rhodes' new lawyers said that he was denied his right to a fair trial by ineffective lawyering from Iona Renfroe, the public defender who represented him at the trial. Although Renfroe had medical records showing that Blohm was on a constant stream of morphine, Percocet and Promethazine in the days before he made his identification, she never confronted him with them.

In a case that was so closely decided, confronting Blohm could have flipped the verdict, Metzger said.

U.S. District Judge Helen "Ginger" Berrigan ruled in 2014 that Renfroe’s failure to press Blohm on the painkillers amounted to ineffective assistance of counsel.

First Berrigan detailed her examination of Blohm’s prescriptions and records of their administration, which she said showed that Blohm was still on painkillers when he made the ID. Then she theorized that Blohm might have picked Rhodes as the shooter because Rhodes was a regular customer at the store.

"In the end, notwithstanding the victim's 'hundred' to 'hundred-and-ten' percent certainty regarding the identification, the jury nearly hung," Berrigan said. "Only ten out of twelve jurors ultimately voted to convict."

That was not the end of the case, however. Under federal rules, Rhodes also had to prove that he got a raw deal in state appeals courts. Metzger argued that Rhodes’ original appellate attorney, Kevin Boshea, erred by failing to raise the medication issue in Louisiana courts.

Boshea apparently never knew about the painkillers because he did not have a copy of Blohm’s medical records. Ninety percent of the public defender’s case file was missing when Boshea received a copy. He said he assumed the records were lost in Hurricane Katrina.

They weren’t, and later lawyers were eventually able to turn up a copy of the medical records. Metzger said Boshea should have tried harder to obtain them.

Boshea did not return a call for comment. Renfroe died in 2013.

On March 8, U.S. District Judge Jane Triche Milazzo, who took over the case after Berrigan retired, found that Boshea had erred, too. She gave the District Attorney’s Office 120 days to either retry or release Rhodes.

The DA plans to appeal her ruling. Prosecutors say Berrigan made too many assumptions in her intricate interpretation of the medical records. They also argued that Renfroe might have made a strategic choice to avoid boring jurors with a discussion of pharmaceuticals.

“Judge Berrigan’s interpretation of the medical records is, at best, not beyond dispute. What is more, it is not at all clear that attempts to parse the records’ Talmudic subtleties in open court would have been particularly effective,” Assistant District Attorney Christopher Ponoroff said in one filing, referring to the famously complex commentaries on Jewish law.

“Even if the defense had succeeded in convincing jurors that Blohm was on medication when he first identified Rhodes, it does not follow that this would have had a material effect on the verdict,” he added.

Metzger said she is confident Rhodes can win at a new trial. Among other issues, she hopes to present jurors with scientific studies on cross-racial identifications, which show they are less reliable than intra-racial IDs. Blohm is white and Rhodes is black.

Metzger has asked Milazzo to order Rhodes’ immediate release, while the DA has asked her to put a hold on her order for a new trial while they appeal it to the 5th Circuit Court.
 
Troy Rhodes is fighting to win his release from the Louisiana State Penitentiary at Angola. He is pictured at his graduation from the Baptist Seminary's prison college program in this 2013 photo.
(Contributed) Contributed photo

Prosecutors point to Rhodes’ criminal record before the shooting: He was convicted of an armed robbery in New Orleans and a bank robbery in LaPlace. His defense attorneys say he has since completed a bachelor’s degree and served as a trustee at Angola.

"While our office is pleased that this defendant is working to better himself while imprisoned by taking advantage of educational and vocational programs available to him, we would oppose his release ahead of a second trial, should one remain ordered," said Ken Daley, a spokesman for the DA's Office.

Metzger said her client remains optimistic that he will return home to his wife and family.

“The ability to have hope and faith and optimism and grace while you’re living under this cloud that says you will die in jail is such an extraordinary gift,” she said.

Follow Matt Sledge on Twitter, @mgsledge.