How Do You Stop a Prosecutor Who Cheats?

Murder, theft, and other wickedness.
April 18 2012 4:56 PM

Playing Dirty in the Big Easy

New Orleans prosecutors have a checkered history of trying to win-at-all-cost. Now a couple lawyers are trying to hold them accountable.

Screengrab of the New Orleans District Attorney's website, http://orleansda.com/the-d-a/
Screengrab of the New Orleans District Attorney's website, http://orleansda.com/the-d-a/

A year ago, the Supreme Court overturned a $14 million jury verdict for a man named John Thompson. He won the money after being exonerated for a crime that put him in prison for 18 years, including 14 on death row. Thompson’s case is a totemic story of wrongful conviction: The state of Louisiana, where he was tried, had blood work that pointed to a different perpetrator. When the evidence came to light after 11 years of appeals and seven execution dates—thanks to a defense investigator’s last-ditch effort to go through old police records—a New Orleans prosecutor came forward to say that a colleague had hidden the blood analysis five years earlier. Thompson was eventually freed, and he sued the New Orleans district attorney, Harry Connick Sr., for failing to train his prosecutors about their obligations under the Brady rule. This is the 1963 Supreme Court holding that requires prosecutors to turn over exculpatory evidence: everything they know that suggests the defendant may be innocent.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

That’s how Thompson won $14 million. Until Justice Clarence Thomas took it away from him, in a decision Dahlia Lithwick called “one of the meanest Supreme Court decisions ever.” In a 5-4 split, Thomas held that Connick couldn’t be responsible for one bad act by a single prosecutor. Thompson lost because, in the majority’s eyes, he hadn’t shown a pattern of office failure. To five justices, it somehow wasn’t enough, as Justice Ruth Bader Ginsburg pointed out in dissent, that there was evidence that a handful of prosecutors were involved in dissembling about the evidence against Thompson (and not only about the blood work—there was also an eyewitness identification that didn’t match his description that wasn’t shared with the defense). Nor did it matter to the majority that the Louisiana courts had overturned four other convictions because of Brady violations under Connick’s watch. Or that the Supreme Court had overturned another New Orleans death sentence for the same reason and would soon reverse yet one more.

Along with pure head-scratching injustice, Connick v. Thompson has done damage by making it much harder to hold prosecutors accountable for misconduct. As a group of Yale Law School students (one of whom is taking a class I’m teaching this semester) pointed out last fall in the Yale Law Journal, defendants can’t sue prosecutors personally, because they have immunity. It’s practically unheard of for prosecutors to be criminally prosecuted, even for blatant wrongdoing. And yet prosecutors abuse their power with some frequency: A 2003 study by the Center of Public Integrity, which the students cite, found more than 2,000 appeals since 1970 in which prosecutorial misconduct prompted dismissals, sentence reductions, or reversals.

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If district attorneys can’t be sued personally, and if their offices now can’t be sued either, what do you do about the bad apples who hide evidence and otherwise railroad defendants? After all, these lawyers are a problem not just for their adversaries, but also for the majority of prosecutors who conscientiously go by the rules.

There’s one other route to accountability: filing a complaint with the state bar association against a prosecutor saying they’ve broken the rules of ethics for lawyers. The state bar can impose discipline like suspension or disbarment. Bar complaints are rarely brought against prosecutors, though. Of the 2,000-plus appeals tracked by the Center for Public Integrity, only 44 involved disciplinary action against prosecutors. One of the main reasons, the student authors of the Yale Law Journal article argue, is that “those who are in the best position to discover prosecutorial misconduct—judges, prosecutors, and defense attorneys—routinely fail to report it.”

It’s easy to understand why. These are people who have to work together over time, who are repeat players in the same system. It’s hard to blow the whistle on a member of your professional community, even an adversary. But that is now happening in two troubled New Orleans cases. It’s a surprising and aggressive play by a couple of defense lawyers who say that almost a decade after Harry Connick Sr. left office, DAs in New Orleans are still breaking the rules, still hiding evidence that casts doubt on the guilt of the people they’ve accused.

One of the defense lawyers to file a bar complaint is Ben Cohen, who works for Louisiana’s Capital Appeals Project. He represents Jamaal Tucker, who was charged with second-degree murder. The charges against Tucker were based on two sources of evidence: the testimony of a jailhouse informant, Morris Greene, who said Tucker confessed the murder to him, and a witness to the killing, Joseph Allen. After a jury convicted Tucker, the judge threw out the verdict because prosecutors hadn’t followed his order to turn over the witnesses’ criminal records. Tucker was tried again. This time, Allen told the jury he couldn’t recall the shooting, and the jury deadlocked. The New Orleans district attorney’s office charged Allen with perjury. Tucker was tried a third time, and at this point Allen testified against him again, along with Greene. Tucker was convicted and sentenced to life.

Afterward, Cohen sent a defense investigator to a post-conviction hearing for Morris Greene. He’d been convicted of armed robbery in another parish and sentenced to a mandatory 15 years.* When he testified at Tucker’s trial, Greene had said he expected nothing in exchange for his testimony. "No, I haven't been promised or offered anything,” he told the jury. “I caught my charge in Lafayette Parish. It has nothing to do with Orleans Parish. Orleans district attorney can't do nothing for me, man.” But at the post-conviction hearing, Greene was allowed to withdraw his guilty plea to the robbery and his sentence was reduced to time served after a Lafayette prosecutor said he was “amenable to amending” Greene’s sentence “as a result of phone conversations with the district attorney from Orleans Parish, which is Cannizzaro.”

That’s Leon Cannizzaro, who became the DA for New Orleans in 2009. Joseph Allen, who’d also testified at Tucker’s trial that he had no expectation of leniency, got a deal, too, on his perjury charge and was released. Because of the deals, Cohen asked for a new trial for Jamaal Tucker. The judge ordered Cannizzaro and the prosecutor who tried Tucker, Eusi Phillips, to appear before him to explain themselves. On the eve of his date in court, Cannizzaro agreed to toss Tucker’s murder conviction. And his office turned over to Cohen a piece of evidence the defense had never seen before: A letter from Greene to Phillips. Greene wrote that he wanted Crime Stopper reward money for testifying against Tucker and that he wanted his time cut. He said, “I know that as far as getting my time cut, you can’t make any promises before the trial, but I am entitled to the reward.”

In a letter to the editor published in the Times Picayune, Cannizzaro denied withholding evidence against Tucker or two other defendants whose lawyers have made that claim. “My office has railroaded no one,” he wrote.

But Greene’s letter is “classic Brady material,” Cohen points out. “In some ways the money Green asked for is even worse than expecting a deal.” The prosecutors’ failure to turn over this evidence is at the heart of Cohen’s bar complaint against Cannizzaro and Phillips. Cohen also says Cannizzarro broke the ethical rules by making “inaccurate or misleading” public statements about Tucker’s case.

When I called Cannizzaro to ask about the bar complaint, spokesperson Chris Bowman said it was against office policy to discuss pending cases. (Never mind that Cannizzaro talked about Tucker’s case before agreeing to a new trial; at that point, the case was closed, Bowman said.) Eusi Phillips wrote a response to the Louisiana Attorney Discipline Board. Without addressing the Crime Stopper reward, Phillips said he never promised Greene a lighter sentence, and that it was “unclear what discussions were had” between Canizzarro and the Lafayette prosecutors. Phillips also said that his supervisor reviewed the entire file for Tucker’s case before trial and didn’t tell him to hand over Greene’s letter. When I called Phillips for comment, he said, “I’m not going to be interrogated,” and hung up.

For Ben Cohen, what’s at stake here is what he sees as the gap between Cannizzaro’s claims of having cleaned up the DA’s office and how Cannizzaro actually does business. “Connick’s office was characterized by ambivalence and laziness,” Cohen says. “They couldn’t be bothered to look in the file: They were overworked and they were ambivalent about whether they had to comply with Brady. Cannizzaro is a win-at-all-costs prosecutor. His people aim as close to the line as they can get, and when you do that, you miss it.”

Cohen brought his bar complaint after a veteran New Orleans defense lawyer, Sam Dalton, brought a similar complaint against Cannizzaro’s office for withholding evidence in the case of Michael Anderson, yet another convicted murderer who got a new trial. Dalton’s complaint, like Cohen’s, is pending. “Sam has been fighting for poor people since before I was born,” Cohen says. “He brought his complaint so other people would have the courage to do this. I’m not in New Orleans criminal court on a daily basis because I mostly do appeals and post-conviction work. Cannizzaro doesn’t have the power to punish my clients by refusing to plea bargain. I felt like, if I didn’t bring a bar complaint, how could I ever ask that of a public defender who is in court every day?”

There’s a broader solution to the problem of withholding evidence: Laws or policies that require prosecutors to share the entire case file with the defense. North Carolina and a few other states and cities have laws like that, and they’ve gotten good reviews. Louisiana legislators soon plan to introduce a reform bill of their own. Cannizzaro, not surprisingly, opposes the idea of open files.

I’ll follow up on the bar complaints and the proposed reform bill, which I’m especially interested in given New Orleans’ checkered history. What happens next should be about restoring faith in the system. “Everybody knows that someone got paid to testify against Jamaal,” Cohen says. “It’s indifference to accuracy that really causes communities to lose trust.” Rhetorically, at least, Cannizzaro sees danger here, too. “Look, it does me absolutely no good to cheat in order to get a conviction,” he said in a recent interview. “Although it might be good at the outset, the truth always comes out in the long run.”

Correction, April 19, 2012: This article originally stated that Lafayette Parish neighbors New Orleans. It is about 90 miles away. (Return to the corrected sentence.)

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