In Baton Rouge and elsewhere in Louisiana, the 1993 murder of Baton Rouge Police Cpl. Betty Smothers represented one of the saddest examples of the tragedy of violent crime imaginable. Smothers, a mother of six children working an off-duty late night security detail, was slain in a hail of bullets as she drove the manager of a grocery store to a Jefferson Highway bank for a night deposit.

The assailants laid in wait for Smothers and the grocery store manager, opened up on them – killing her and seriously injuring the grocery store manager – and made off with the cash.

One of Smothers’ six children was Warrick Dunn, the future NFL All-Pro running back and then-football star at Catholic High. Dunn left Baton Rouge to attend Florida State and went on to a terrific career with the Atlanta Falcons and Tampa Bay Buccaneers, and has since emerged as one of Baton Rouge’s finest charity benefactors.

But Wednesday, one of the two murderers – a man named Kevan Brumfield, who fired the shots that killed Smothers and was convicted of first-degree murder in 1995, escaped the death penalty. Why? Because U.S. District Judge James Brady, the former Louisiana Democrat Party chairman and a Clinton appointee, ruled that Brumfield is mildly retarded and therefore ineligible for the death penalty.

East Baton Rouge Parish First Assistant District Attorney Prem Burns said the 5th U.S. Circuit Court of Appeals in New Orleans will be asked to review and reverse U.S. District Judge James Brady’s ruling, which was signed Wednesday.

“This man is not retarded,’’ Burns said of Brumfield.

Brumfield’s attorney, Nicholas Trenticosta, said he was very pleased with Brady’s decision but not surprised by it.

“There is no question Mr. Brumfield is mentally retarded,’’ he said.

Burns said Brady committed “legal error’’ by not allowing the District Attorney’s Office to introduce Brumfield’s trial record at the August 2010 federal hearing on his mental retardation claim.

“We feel we were not allowed to fully present our case,’’ she said.

A bit more…

Baton Rouge forensic psychiatrist Robert Blanche testified at the federal hearing that Brumfield is not mentally retarded, but Lafayette psychologist Victoria Swanson told Brady that Brumfield is mildly retarded.

“The Court concludes, under the totality of the circumstances and based on a preponderance of the evidence, Kevan Brumfield has demonstrated he is mentally retarded as defined by Louisiana law,’’ Brady wrote in his ruling.

He said the state is “permanently enjoined’’ from executing Brumfield. The U.S. Supreme Court has barred the execution of mentally retarded people.

“While ineligible for execution, Brumfield will remain incarcerated in Angola for the rest of his life,’’ Brady added. “This ruling does not ‘let him off easy’ on some convoluted procedural technicality. It merely seeks to fairly apply the law as written.’’

The judge found that Brumfield has “significant limitations in intellectual functioning’’ and “significantly limited conceptual skills.’’

“If we as a society are to effectuate the evolving standard of decency contemplated by the Eighth Amendment’s prohibition on cruel and unusual punishment, we must accept as a given that certain cases will present unfortunate facts which, when viewed under the law, result in an outcome at odds with majoritarian sentiment,’’ Brady wrote. “This may be one of those cases in the eyes of some.’’

The odds are that the 5th Circuit will side with the District Attorney; how can you claim to be reviewing the “totality of the circumstances” and not include the trial record of the case? And if retarded people are capable of staking out a score, laying in wait for victims and ambushing police officers while making off with said score, it would seem to make a mockery of the constitutional protection of the infirm Brady’s Eighth Amendment writings advertise.

Even so, that Smothers’ family would be subjected to insult on top of injury with Brady’s ruling is uncommonly egregious.

Let’s not forget that Brumfield was involved in another murder just prior to the Smothers killing and was functional enough to turn state’s evidence against his compatriots in that crime.

Dunn wrote a book about his experiences in 2008, the most compelling part of which was the day in October 2007 in which he met Brumfield at Angola State Penitentiary. From that book, “Running for My Life,” is Dunn’s account of that meeting. Decide for yourself whether he’s convinced Brumfield is retarded.

As I walked into the prison staff’s multipurpose break room, Room 116, Brumfield was already seated at a round brown table. He wore a white shirt, jeans, and Reebok tennis shoes. His hands were shackled to his waist. He was bald, with glasses; a scar was visible over his upper lip, and I noticed he had gold-capped teeth.

I have to admit that I was shocked when I first saw Brumfield. It didn’t seem like this was real. It didn’t seem like I recognized him at all. I didn’t imagine him looking like he did. I thought he was going to be a smaller man, but he was a big guy, broad and wide-shouldered. At thirty- four years old, Brumfield was just two years older than I was. Still, I didn’t think I would see a guy with a bald head and glasses. It had been so many years since I had seen him at his sentencing in a Baton Rouge courtroom in July 1995. I remembered him with hair and looking much different.

After a few moments of awkward silence, Brumfield spoke first. He explained how he had changed as a person, that he shouldn’t have done some of the things that he did in the past and that he had grown into a better human being. He apologized for what happened to my family.

And then he said it.

“I didn’t kill your mother. They got the wrong guy.”

I had been previously warned by Warden Burl Cain to expect that response, and I certainly understood that with an appeal pending, this was the way Brumfield would handle himself. Brumfield has claimed he is mentally retarded, and his appeals have argued that the U.S. Constitution prohibits the execution of mentally retarded people. But judges have ruled that Brumfield’s IQ shows that he’s not retarded. I listened to Brumfield explain how, because of the life he had lived, he would have probably been dead by now if he hadn’t been arrested for this crime that he now claims he didn’t do … but to which he confessed.

Brumfield also told me that he had “messed over” people on the street like himself, but he had never “messed over” a family like mine, that he had never “messed over” hard-working people. Brumfield also pointed out that he had seven children, including a daughter who was in the courtroom when Brumfield was tried and convicted twelve years earlier, and was now in college. I asked him what his daughter thought of him being in prison, and he responded, “She’s not proud.” Brumfield also showed me the scars on his arms and recalled his shootouts on the streets with others like himself. He told me I needed to understand that when my mom was murdered, the police were looking for somebody. They had to have somebody. “I was that somebody,” he said.

As I listened to Brumfield, I realized that most of the questions I had crafted in a spiral pocket notebook that I brought with me, questions that I had compiled from my family, were suddenly irrelevant. If he wasn’t going to admit that he murdered my mom, as he did in his confession to police, I couldn’t ask him questions about that night. It changed the dynamic of the conversation I had come to have.

…

Finally, after listening to Brumfield for a while longer, I decided I just wanted to tell him about what that night did to me and how that night changed my life. I wanted him to know that I used to play football with passion and emotion. I still play with the passion for the game, but I no longer play the game with emotion because the night Mom was murdered took all the emotion from me.

When you loved somebody like I loved my mom, it is as great an emotional experience as you could have. I wanted to explain to Brumfield how it affected the lives of my brothers, Derrick, Bricson, and Travis, and sisters, Summer and Samantha. I wanted him to know that I remembered that growing up as a kid, I wanted to be a father, I wanted to be a husband, I wanted to be a dad. I wanted him to know that what he did that night to my mom ruined a lot of that for me. I flipped to the fourth page in my notebook.

…

As I looked at this man who I never met, I bared my soul to him. I told him how in the years after my mom’s death I had been hesitant about being in a committed relationship, how I’ve been afraid to lose people. I’ve been in counseling for many years over this very concept of having a true committed relationship because I don’t want to lose somebody I love twice in my life. I don’t think I can do it. I don’t think I could suffer that pain again.

Tears started to well in my eyes when I realized that I was laying it all on the line for a guy who had killed my mom. As I looked around the room, I realized everyone else in the room had tears in their eyes, too — Brumfield included. I took thirty seconds, paused, collected my thoughts, and finally looked at him and told him:

“If you didn’t do it, I don’t know why you are here today, but I know why I am here today. I am here because I need to forgive somebody. I am here because it has been fourteen years and it’s time for me to move on. I was searching for answers. I’ve been going to counseling. I’ve started smiling. I’ve started laughing. I even had my first drink two years ago during a fun moment. It is time for me to forgive and move on.”

Everyone went silent. I had said it. I was there to forgive.

Brumfield stuttered for a moment, then told me that as he watched me on television over the years, he wondered what path I would have taken, or the life I would have lived, if that night never had happened. He promised me that the Lord would take care of me. Brumfield added that he wasn’t blessed with a support system and a mother like mine. He told me a story that in 1987, my mother, working security at a store, caught him stealing and made him put back what ever he took. Brumfield said my mom told him, “Boy, get your butt out of here.” Brumfield said my mom could have made an example of him that day, but she elected not to. I thought to myself, that was Mom — always giving people second chances to do right.

Brumfield looked at me and asked, “Why now? Why meet?” I told him I was finally strong enough to do this, that years of counseling had made this possible. Brumfield told me not to hold onto my anger anymore, and he said that he prayed for me and my family. I answered that God has a path for all of us, and that I was happy that his life hadn’t been taken away. I told Brumfield that it took me a long time to stop blaming God for that night.

Perhaps somebody should have given Brady a copy of Dunn’s book. It’s doubtful he would have paid it much attention, though, as Brady has a record of letting killers escape jury sentences of capital punishment.

And then there’s the case of Walter Koons, a triple murderer sentenced to death by a jury after he blew away his estranged wife and her parents in 1993…

On March 5, 1993, Koon, accompanied by a friend named Sarah Robinson, droved to the Baton Rouge residence of his in-laws where his estranged wife, Michele Guidry, was staying. Koon parked his truck in the driveway of the residence where he got out and walked to the backyard. There, he found and shot and killed Ms. Guidry. He then went inside the residence where he killed Ms. Guidry’s parents. Seeing this, Ms. Robinson bolted from the truck, ran into the Guidry residence, and hid until Koon had departed. See: Koon v. Cain, 277 Fed.Appx. 381, 382; 2008 U.S.App. LEXIS 9478 (5th Cir. 2008).

Upon leaving the Guidry residence, Koon drove to Livingston Parish where he surrendered to law enforcement authorities. He was subsequently indicted for three counts of capital murder. The trial court assigned the local public defender’s office to represent Koon. The defendant expressed dissatisfaction at the appointment, prompting the court to appoint a private attorney named Kevin Monahan to represent him along with the public defender’s office. A second private attorney named Denise Vinet was soon substituted to replace the public defender’s office in the case. Id.

The trial began in March 1995. Before any testimony could be taken, Monahan informed the court that Ms. Vinet wanted to withdraw from the case. The lead attorney told the court that Ms. Vinet’s assistance was not needed. Ms. Vinet concurred, telling the court that Monahan had not asked her to do a thing on the case. The trial court granted Ms. Vinet’s motion to withdraw, but only after Koon waived any objection. No additional counsel was appointed to the case. Id.

At the start of the trial Monahan entered a dual plea of not guilty and not guilty by reason of insanity. He based that defense on the fact that Koon “just had one bad week” believing this would negate the defendant’s specific intent to kill and thereby lessen his culpability for the three murders which would open the door to a possible manslaughter verdict. The Fifth Circuit outlined the factors Monahan had identified in support of the “bad week” insanity/manslaughter defense:

Koon’s wife had left him.

The defendant has become ill.

He had a tax lien levied against him.

Ms. Robinson had told him in the truck on the way to the Guidry residence that his estranged wife was having an affair.

While Koon had stated he was not using drugs or alcohol when he killed the three people, he had been using drugs (Xanax) and alcohol earlier that morning as well as in the preceding weeks, and this led Monahan to believe that his client was suffering from “withdrawal” at the time of the murders. Id., 277 Fed.Appx. at 383.

Monahan theorized that these factors, particularly the “detoxification effects” of the drug withdrawal, and the “bad week” rendered Koon “unable to tell right from wrong when he shot his estranged wife and her parents.” Id. In support of this theory, Monahan enlisted the assistance of several medical experts. He finally identified Dr. Marc Zimmerman as his chief expert and hired the doctor the day before the trial commence. Id.

This tactical decision proved to be a disaster. Dr. Zimmerman, who had only one hour to interview Koon before the start of trial, testified that “detoxification contributed to [Koon’s] inability to tell right from wrong at the time of the killings.” Id., at 384. State prosecutors knew a “turkey in the woods” when they saw one. They called Dr. Donald Hoppe in rebuttal to Dr. Zimmerman. Hoppe did not spare the rod of criticism. He pointed out that Zimmerman had conducted only a “cursory interview” with Koon and had not interviewed any of his friends or family members. While Dr. Hoppe, a clinical psychologist, had not interviewed Koon, he had reviewed the results of “the MMPI test conducted by Zimmerman” and determined that Koon was: 1) a lair, 2) not remorseful, 3) manipulative, and 4) violent. Id.

The Fifth Circuit pointed out that Monahan was so “unprepared” that he made no attempt to counter the State’s devastating rebuttal “even though it turned out that there was little in the literature to support Hoppe’s broad interpretation of Koon’s test results.” Id. The appeals court added:

“Koon’s insanity/manslaughter defense was dealt another blow when Robinson, the lone eyewitness to the killings, whom Monahan had failed to interview prior to trial, contradicted Koon’s own testimony by denying that she had told him shortly before the killings that his wife was having an affair with one Joey Leblanc, a person Koon particularly disliked because he had been betrayed by Leblanc in the past. Robinson also contradicted Koon’s testimony that he had consumed alcohol and drugs (including Xanax) the morning of the killings.” Id.

Koon was convicted on three counts of capital murder and sentenced to death. His conviction and sentence were upheld on direct appeal. He then filed an application for post-conviction relief in the trial court raising an ineffective assistance of counsel claim. The trial court heard, and rejected, Koon’s request to have 33 witnesses subpoenaed to support his ineffective assistance claim. The trial court, however, did permit two witnesses to testify: Monahan and Ms. Vinet. But their testimony did not persuade the trial judge who denied the post-conviction application, concluding that Monahan “did a good job with what he had to work with.” Id.

Koon thereafter petitioned to the federal district court for habeas corpus relief pursuant to 28 U.S.C. § 2254. After an exhaustive review of the state court record, the federal district court found that Koon had been denied effective assistance of counsel at both the guilt/innocence and penalty phases of the trial. The district court reversed Koon’s conviction and death sentence, remanding the case back to state authorities for a new trial. The State elected to appeal to the Fifth Circuit which upheld the district court’s order. Id., at 382-83.

The case went to a new trial after Brady tossed Koon’s initial conviction – and lo and behold there wasn’t much of a trial the second time…

A killer who was once sentenced to death but had his conviction overturned was given three life sentences Thursday in a Baton Rouge courtroom because of a plea agreement.

Walter Joey Koon was tried, convicted, and given the death penalty 14 years ago for the murders of his then wife, Michelle, and her parents, Richard and Felicia Guidry. The conviction was overturned in federal court. Koon accepted a plea agreement instead of going to trial again.

The victim’s family sat in court while Koon pleaded guilty to three counts of first degree murder. The family agreed with the deal and member say they put this case in God’s hands. “We decided a long time ago that we would turn it over to God and let him be in control because we’ve seen an awful lot of people scar themselves by getting immersed in this type of thing and I don’t think my parents or sister would want us to go through this,” said Rob Guidry.

“I’m not particularly in favor of this plea,” Judge Mike Erwin said to Koon during the plea. “This is the most cold-blooded murder I’ve ever been associated with in my 30 years as a prosecutor or a judge. You cold-bloodedly shot three people with no reason.”

Erwin was the original judge when the case was tried in 1995.

It seems difficult to achieve justice in Baton Rouge with so august a defender of murderers as Brady on the bench. But that’s the result of Bill Clinton’s political payoff to a former Democrat Party apparatchik. Little wonder that the operation Brady formerly ran has all but disappeared from the statewide electoral scene. How unfortunate that Brady himself is still around to inflict damage on the families of murder victims by shooting down jury sentences for their killers.