John Thompson awaits Supreme Court ruling on civil suit against New Orleans D.A.
October 21, 2010
Prosecuting offices' immunity tested
By Brad Heath and Keven McCoy, USA TODAY
WASHINGTON — Americans can sue almost anyone for almost anything. But they can't sue prosecutors.
Not when prosecutors hide evidence that could prove someone's innocence. Not when they violate basic rules designed to make sure trials are fair. Not even when those abuses put innocent people in prison.
Nearly 35 years ago, the U.S. Supreme Court ruled that prosecutors cannot face civil lawsuits over how they handle criminal cases in court, no matter how serious or obvious the abuses. Since then, courts have further limited the circumstances under which prosecutors — or their bosses — can be sued for civil rights violations.
Today, in a case involving a New Orleans man who came within a month of being executed for a murder he didn't commit, the Supreme Court is scheduled to consider another aspect of prosecutorial immunity: whether people who were wrongly convicted can take local prosecutors' offices to court. The court's answer could determine the extent to which prosecutors' employers are also shielded if they fail to make sure attorneys comply with their constitutional responsibilities.
"Prosecutorial misconduct is a serious problem, and nothing is being done to adequately address it," said Kathleen Ridolfi, director of the Northern California Innocence Project, which released a study Monday that found hundreds of instances of misconduct by state and federal attorneys. "Prosecutors know. .. they can commit misconduct with impunity."
A USA TODAY investigation documented 201 cases since 1997 in which judges determined that federal prosecutors had violated laws or ethics rules. Although those cases represent a small fraction of the tens of thousands that are filed in the nation's federal courts every year, judges found that the violations were so serious that they overturned convictions or rebuked the prosecutors for misconduct. Some of the abuses put innocent people in jail.
Not one resulted in a successful lawsuit against a prosecutor.
The latest test of the extent of prosecutors' immunity began with a December 1984 murder and a separate carjacking three weeks later in New Orleans. John Thompson was convicted of both crimes and sentenced to die for the murder. A month before his execution date, his lawyers discovered that prosecutors had deliberately covered up a police lab report that showed he could not have committed the carjacking. Then they uncovered still more evidence that undermined his murder conviction.
Thompson was freed in 2003. He sued New Orleans District Attorney Harry Connick Sr. and his office for failing to train the prosecutors who covered up that evidence. Four years after Thompson got out of prison, a jury awarded him $14 million; now the Supreme Court must decide whether he can keep it.
"The importance of (Thompson's) case is prosecutorial accountability — whether or not violations of constitutional rights make a difference, or whether the prosecutors can just walk away without any accountability, any liability, any punishment, for breaking the law," said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors.
In 1976, the Supreme Court decided, in a case called Imbler v. Pachtman, that prosecutors have absolute immunity from civil rights lawsuits for their work in the courtroom. The court acknowledged that its ruling "does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty," but said the alternative was worse: leaving prosecutors to fear a lawsuit, or even bankruptcy, every time they lose a trial.
Without immunity, prosecutors "would be gun-shy" about taking on difficult cases, former U.S. attorney general John Ashcroft said.
The Supreme Court has said that, instead of being sued, prosecutors who break the rules could be kicked out of the legal profession or even charged with a crime. Those outcomes are rare. Although USA TODAY's investigation documented misconduct in 201 cases, it did not find a single federal prosecutor who was disbarred. Only one, Richard Convertino, was prosecuted. He was acquitted.
"Short of pointing a gun at a prisoner and pulling the trigger, the prosecutor can get away with just about anything," said Patrick Regan, an attorney for two Washington, D.C., men who spent decades in prison before a court overturned their convictions because prosecutors never turned over evidence that pointed to other suspects. The men sued, but a court ruled the prosecutors had immunity and threw out their case.
John Thompson was a 22-year-old high school dropout and self-described "small-time weed dealer" when he was arrested in 1985 for the slaying of a New Orleans businessman. Days later, prosecutors also charged that he was responsible for an armed carjacking of three teenagers outside the Superdome.
Thompson went on trial twice. Prosecutors tried Thompson for the carjacking first, and a jury convicted him. That set the stage for his murder trial several weeks later: Thompson decided not to testify because doing so would have opened the door for prosecutors to tell the jury that he had just been convicted of thecarjacking. The jury found him guilty. When it was time to decide his punishment, jurors did hear about the carjacking, his first felony conviction, which enabled prosecutors to seek the death penalty. Jurors sentenced him to death.
Authorities scheduled Thompson's execution for the day before his son was to graduate from high school in 1999. Two Philadelphia corporate attorneys, Michael Banks and Gordon Cooney, had by then had taken on his case.
A month before his execution, an investigator working for them found a copy of a police lab report that upended the case. The report, based on blood found on the clothing of one of the carjacking victims, showed conclusively that Thompson had not committed that crime; the sample was blood type B, and Thompson's blood was type O.
That was enough for a court to throw out Thompson's carjacking conviction, and to overturn his death sentence. And it led to a series of discoveries — including inconsistent witness statements — that ultimately undermined Thompson's murder conviction as well. The district attorney's office in New Orleans had all that evidence when Thompson went on trial, but never disclosed it to his lawyers, as the law requires.
"It was a crazy, crazy feeling that you could be killed for something you didn't do," Thompson said last week.
He was retried in the murder case and acquitted. In 2003 — after 18 years in prison, 14 of them on death row — Thompson walked out of Louisiana's Angola penitentiary a free man.
Click here to visit the full article at USA TODAY.
Click here to visit the website of Thompson's organization, Resurrection After Exoneration.
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