(6 of 9)
The penalty hearing, three days later, was a disaster. The Cousin family boycotted it to protest the guilty verdict, Robert Epps arrived too late to testify as a character witness, and because Cousin had, a few weeks earlier, accepted a 4-count plea on some robbery charges (an agreement he now claims was coerced), he was effectively portrayed by prosecutors as a hardened criminal and was sentenced to death. Stafford-Smith has been working on Shareef's appeal ever since. "When I was a kid, I read about America's having the death penalty," he says. "I couldn't believe it. I was absolutely horrified. I thought I'd come over here and straighten out the colonies. I'm afraid I haven't done it yet."
Stafford-Smith says Shareef was convicted and sentenced to death for political and racial reasons. "There's a crime in the French Quarter, a big tourist area," he says. "A white guy is murdered by three people identified as black. You're dealing with serious pressure...Then James Rowell gets busted for a whole slew of robberies. My read is, Rowell led them to Shareef. This is a classic case, where the snitch provides the first lead. When Rowell fingers Shareef, the cops say, 'Hey, we've got our guy.' They come to Connie Babin and say, 'If you don't finger him, he'll kill again.'"
Stafford-Smith says there are several key elements that point toward his client's innocence:
1. The Nearsighted Witness. On the night of the murder, Babin told police that things were so confusing she doubted she could identify the killer. She did say he was "slightly shorter" than Gerardi--but, in fact, Cousin is 4 in. taller than Gerardi. Three days later, in a formal, taped statement, police asked Babin again if she could ID the killer. "I don't know," she said. "It was dark, and I didn't have my contacts or my glasses so I'm coming at this at a disadvantage." That statement was never turned over to the defense. Later, at the trial, Babin said she was "100% certain" Cousin was the killer. A few days after the end of the trial, an anonymous source mailed the defense a copy of Babin's earlier, weaker statement.
2. The Absent Evidence. No physical evidence links Cousin to the crime--no fibers, no blood, no weapon, nothing. Prosecutors say he became a suspect when he was identified by Babin in a "photo lineup." A tourist and a restaurant worker were said to have made, as prosecutors put it, tentative identifications. "A tentative identification is the equivalent of a partial pregnancy," says Stafford-Smith. "There is no such thing." Stafford-Smith charges that Babin and the other "tentative" witnesses were coached by detectives to identify Cousin in the photo lineup.
3. The Former Friend. After Rowell was arrested and charged with nine armed robberies, he was asked by his lawyer, George Simno, if he had any information that might lessen his sentence. Rowell hesitated and said he knew something about "the hamburger murder"--and then gave up Cousin for the Gerardi murder. However, at Cousin's trial nine months later, Rowell recanted completely and testified that he had only said what prosecutors and his lawyer told him to say.