Utah Court of Appeals grants new trial to Katrina evacuee in 2006 arson case

The Utah Court of Appeals has granted Katrina evacuee Herbert Samuel Landry a new trial a decade after he was convicted of setting a fire that burned his apartment and six other units at a Provo complex.

In a 3-0 opinion, the court agreed with what it called Landry's theory of "layered ineffective assistance of counsel." Landry alleged he received ineffective assistance from the lawyer who handled the appeal of his 2006 first-degree felony aggravated arson conviction because she failed to raise the issue of ineffective assistance rendered by his trial attorney.

"We conclude that trial counsel's performance was deficient and that there is a reasonable probability that, without this deficiency, the jury would have reached a more favorable outcome for Landry; therefore, we also conclude that Landry has established ineffective assistance of appellate counsel," Judge Gregory Orme wrote for the court.

The ruling — joined by Judge Michele Christiansen and Senior Judge Pamela Greenwood and issued Friday — reverses a 4th District Court decision dismissing Landry's petition for postconviction relief.

Ordinarily, the relief granted would be a new trial with a new lawyer, according to the ruling. However, Landry was paroled from the Utah State Prison in February 2014 after serving about 7 1/2 years behind bars and has relocated to Texas.

Orme wrote that "it is far from clear that [a new trial] would be a reasonable use of judicial resources or even something Landry would welcome." He said the appeals court is sending the case back to the trial court "to implement an appropriate remedy under the circumstances."

Landry's postconviction relief attorneys, Cory Talbot and M. Benjamin Machlis, said Monday they are evaluating their options and that one possibility is to ask that the conviction be vacated.

Landry lives in Houston and is happy about the decision, Talbot said, adding, "We're hopeful this will allow him to move on with his life."

Landry, now 56, was one of the hundreds of Louisiana residents evacuated to Utah in September 2005 after Hurricane Katrina struck New Orleans. In 2006, he was being evicted from the Shadowood Apartments because the landlord discovered several unauthorized people living in his unit and was scheduled to vacate his unit on Feb. 26, according to court documents.

Late that afternoon, some neighbors saw Landry and his girlfriend leave in a hurry and saw smoke coming from his apartment about 10 minutes later, the court documents say. About the same time, another neighbor saw an unidentified man outside the apartment. Fire investigators were unable to locate the man but did find a discarded lighter nearby.

A certified accelerant-detection canine named Oscar alerted his handler to possible ignitable substances on the floor in Landry's bedroom, and on one of his socks and one of his shoes at a motel room where he had moved many of his belonging, according to court documents. In addition, investigators identified a distinct V-pattern on the floor, which one of them testified indicated an intentionally set fire.

But the state Crime Lab did not find any ignitable substances on Landry's clothing and the prosecution conceded the only ignitable substance found on the bedroom floorboards was not the cause of the fire, court documents say.

At Landry's two-day trial in August 2006, though, Oscar's handler testified that when the lab determines a sample contains no identifiable hydrocarbon — or combustible vapors resulting from accelerants and ignitable liquid residues — "it doesn't necessarily mean there is nothing there."

And one expert witness for the prosecution said the dog is "much more sensitive" than some of the scientific equipment used, while another — despite conceding no accelerants or ignitable liquids were found in Landry's bedroom — testified that "this was an intentionally set fire that occurred from the ignition of ignitable poured liquid," according to the appeals court ruling.

Landry's trial lawyer did not object to the admission of testimony about Oscar's alerts; called no witnesses to refute the prosecution's expert witnesses; did not engage her own expert to at least advise her; and made only minimal efforts to educate herself on fire investigation principles, the appeals court ruling says.

After closing arguments, the jurors deliberated for several hours and informed Judge Steven Hansen at one point that they were deadlocked. After the judge told them they would have to return the next day to continue deliberations, the jurors asked to reconvene briefly that evening and reached a guilty verdict.

Landry was given a prison term of five-years-to-life and appealed. His appellate attorney argued there was insufficient evidence to convict but the Utah Court of Appeals upheld the conviction in 2008.

At the request of the Rocky Mountain Innocence Center, Talbot and Machlis agreed to represent Landry for free and filed the request for post-conviction relief in 2010.

pmanson@sltrib.com

Twitter: @PamelaMansonSLC