By Emily Lane, NOLA.com | The Times-Picayune

on April 02, 2015 at 2:42 PM, updated April 06, 2015 at 12:36 PM

Angola 3 member Albert Woodfox could possibly be released from state custody after more than 40 years in solitary confinement without having to defend himself in court for a third time in the decades-old murder of a prison guard.

Woodfox was re-indicted Feb. 12 in the 1972 murder of a Louisiana State Penitentiary prison guard Brent Miller. It was the third time Woodfox was charged with Miller’s murder after courts had twice overturned his previous two murder convictions.

Now, Woodfox’s lawyers argue in federal court that he should be granted an “unconditional writ.” If U.S. Judge James Brady grants the writ, Woodfox could be permanently released and the state barred from prosecuting the murder charge against Woodfox for a third time.

Woodfox’s lawyers argue since so much time has lapsed since the crime took place and nearly half of the witnesses are dead, jurors aren’t able to properly judge the credibility of the case’s evidence, which is largely witness-driven.

“It is unfathomable to imagine how an objectively reasonable juror … could possibly evaluate the integrity of the State’s case, or the credibility of the competing narratives between the State’s case and Woodfox’s case,” his attorney George Kendall writes.

Woodfox’s lawyers gave four examples of “extraordinary circumstances” that should legally qualify him for relief from a retrial: 1) Woodfox has been forced to subsist “decades of hardship and deprivation” in solitary confinement; 2) His old age and medical problems mean he might not survive the retrial process; 3) The state has a history of “troubling” conduct in the case, including prosecutorial misconduct during the first trial and racial discrimination leading up to the second trial; and 4) evidence of actual innocence.

Assistant Attorney General Kurt Wall, who is handling the case for Louisiana Attorney General Buddy Caldwell’s office, said Thursday (April 2) if the writ is granted, the state would push back by filing an appeal or through other legal avenues. Granting an unconditional writ to a defendant who has an a murder indictment pending, Wall said, would be unprecedented.

“We would explore every possible avenue to prohibit (Woodfox) from being released,” Wall said.

The state has until April 10 to file a response to Woodfox’s petition for an unconditional writ, which was filed Monday (March 30).

Woodfox has always maintained his innocence in the murder of the 23-year-old guard, Brent Miller. His designation as a member of the Angola 3 stems from what the group’s supporters believe are wrongful convictions for prison murders in which Woodfox and two other prisoners were implicated for the purpose of silencing their activism. The International Coalition to Free the Angola 3 believes the men essentially became political prisoners for organizing an official Black Panther Party chapter inside the prison, which led hunger strikes and other demonstrations opposing inhumane prison conditions. Those conditions, in the early 1970s, included continued segregation, corruption and systematic prison rape.

An affidavit stemming from Woodfox’s recent indictment says the murder occurred as Miller was talking with fellow inmate Hezekiah Brown on Brown’s bed when Woodfox and two others pounced on him, leaving Miller with 32 stab wounds.

Woofox’s lawyers used Brown’s death as an example of the limitations a jury would face at a retrial because of the time lapse since the crime occurred.

Brown, the state’s key witness, died before the second trial in 1998. Brown testified at the first trial to having seen Woodfox and fellow Angola 3 member, the late Herman Wallace, committing the murder and running from the scene. Although Brown said at the first trial that he was not promised favors in exchange for providing an eye-witness account, testimony of Warden C. Murray Henderson during the second trial indicates Brown was offered help obtaining a pardon before he testified at the first trial. The petition also says he was threatened with solitary confinement should he refuse to testify.

Brown, imprisoned at Angola on multiple rape charges, was eventually pardoned in 1986 and died in 1996.

Old testimony from dead witnesses that is deemed admissible can be read aloud in court and cross-examined during a new trial. But Woodfox’s lawyers cited case law that acknowledged how the jury’s opportunity to observe “facial expressions, attitudes, tone of voice, eye contact, posture and body movements” of witnesses falls in stark contrast to “merely looking at the cold pages of an appellate record.”

The petition also notes a lack of physical evidence linking Woodfox to the crime. A bloody fingerprint taken from the scene did not match Woodfox or the other suspects implicated by the state, including his alleged co-conspirator, Wallace, it says.

Wall suggested, though, that Woodfox’s attempt to bar the murder charge from being prosecuted again is based on his knowledge about the evidence against him.

“Two juries have unanimously convicted him for the murder of Brent Miller, and I can certainly understand why they wouldn’t want another jury to hear the compelling evidence that’s already been presented twice before,” Wall said.

The Fifth Circuit Court of Appeals in November found the latest conviction should be vacated on constitutional grounds because of racial discrimination in the selection of the grand jury foreperson during his 1998 retrial. He was granted the second trial after courts vacated the first conviction on the basis of discrimination during proceedings in the early 1970s.

While Louisiana law doesn’t allow its admittance in court, the petition notes Woodfox “has passed a polygraph test.”