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Katrina evacuee who was granted new trial on Utah arson charge will not be prosecuted again

Published January 19, 2017 1:36 pm

Courts • He was granted a new trial on appeal; D.A. felt time served was enough.
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A Katrina evacuee who was granted a new trial last year by the Utah Court of Appeals on an arson charge will not be retried.

The Utah County Attorney's Office recently informed the 4th District Court that it did not intend to prosecute Herbert Samuel Landry, a decision that ends the case.

Landry served about 7 1/2 years behind bars before being paroled from the Utah State Prison in February 2014, more than two years before he was granted the retrial.



Utah County District Attorney Jeff Buhman said Thursday that the primary reason for the decision was the fact that Landy has already served a "fairly lengthy term."

"Even if we were to retry him now and again obtain a conviction, it is very unlikely we would obtain any additional terms or conditions for his sentence," Buhman wrote in an email. "In other words, justice (from our view) was served and, considering the possible benefits of a retrial, our resources are better used to seek justice in the many cases we are currently prosecuting."

Landry, who was accused of setting a fire that burned his apartment and six other units at a Provo complex, was convicted in 2006 of first-degree felony aggravated arson.

The appeals court handed down a ruling last July reversing a 4th District Court decision dismissing Landry's petition for post-conviction relief.

That ruling agreed with an argument by post-conviction attorneys, Cory Talbot and M. Benjamin Machlis — who were continuing an effort begun by the Rocky Mountain Innocence Center to exonerate Landry — that their client received "layered ineffective assistance of counsel."

Landry alleged he received ineffective assistance from the lawyer who handled the appeal of his arson conviction because she failed to argue he had received ineffective assistance from his trial attorney.

The 3-0 appeals court ruling said the relief granted ordinarily would be a new trial with a new lawyer. However, noting that Landry had been paroled, the appeals court sent the case back to 4th District Court "to implement an appropriate remedy under the circumstances." That court vacated Landry's conviction.

Landry — who is now 56 and lives in Houston — was among Louisiana residents evacuated to Utah in September 2005 after Hurricane Katrina struck New Orleans.

The fire occurred on Feb. 26, 2006, at Shadowood Apartments, where Landry was being evicted because the landlord discovered several unauthorized people living in his unit, according to court documents.

A certified accelerant-detection canine named Oscar alerted his handler to possible ignitable substances on the floor in Landry's bedroom, as well as on one of his socks and one of his shoes at a motel room where he had moved many of his belongings, according to court documents.

The state Crime Lab did not find any ignitable substances on Landry's clothing, but Oscar's handler testified at trial 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.

pmanson@sltrib.com

Twitter: @PamelaMansonSLC

 

 

 

 

 

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