Supreme Court case: Can a man exonerated of capital murder sue the prosecutor who convicted him?

The law, lawyers, and the court.
Oct. 5 2010 10:27 AM

Innocent on Death Row

This week at the Supreme Court: Can a man exonerated of capital murder sue the prosecutor who convicted him?

(Continued from Page 1)

As lawyers representing Thompson's appeal, Banks and Cooney were required to confine themselves to legal problems with the trial. The facts had been established by the juries' verdicts. It was now fact that Thompson had committed the murder, and fact that he had carjacked the teenagers. As a result, Banks and Cooney largely focused on the procedural aspects of both trials. They noted, however, that in the carjacking there had been a scuffle, with blood spilled. The police had collected two samples of the blood, from a pair of pants and a tennis shoe of the oldest Lagarde child, but the samples were not used at trial. Still, to be thorough, Banks and Cooney sent the DA's office a written request in 1989 asking for those samples and any related blood tests. The DA's office denied that any such information existed, and Thompson's appeal moved forward.

By 1999, the 5th Circuit Court of Appeals had rejected the lawyers' best arguments on Thompson's behalf, and the likelihood that the U.S. Supreme Court would act was virtually zero. Desperate, Banks and Cooney hired a private investigator named Elisa Abolafiya to search for new evidence. It was the definition of a long shot, but with a man's life in the balance, it was worth a few thousand bucks.

Abolafiya typically worked as a "mitigation investigator," someone who joins a case post-conviction and digs deep into the inmate's background to see if there is information that can be used to reduce his sentence—was the inmate beaten as a child, or was his IQ sufficiently low that he could not have understood the ramifications of his actions. In this instance, however, she was working as a "fact investigator," delving into the facts of his murder and carjacking cases to find what the police might have missed, looking for anything not previously known to defense lawyers that could reopen the case.

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Abolafiya was one of those "only in New Orleans" people: a private investigator cum local radio personality with a fondness for long, flowing robes and dozens of bangles and beads. She hosted a late-night salsa and calypso radio program with a side gig as a DJ at parties. She quickly ruled out going to the DA's office; there was no way anyone there would let her see the Thompson case file.

Instead, she went to the New Orleans Police evidence vault and asked to look through their archives. As a matter of course, the policemen standing out in front of the evidence locker aren't really supposed to let civilians come in and look around. Elisa showed up wearing a well-filled and largely unbuttoned blouse and convinced the police to look up the files in question. They gave her the chain of custody card for Thompson's carjacking case, which indicated that the soiled tennis shoe and piece of pants fabric had been checked out by a junior assistant DA on April 3, 1985, and returned on April 10. On April 11, the same junior ADA checked the samples out again. This time, they were never checked back in.

The pants and shoe were gone, but the trail remained. When evidence is checked out, it is typically taken either to a hearing or trial where it can be examined or to the crime lab for testing. There had been no hearing in early April, so Elisa went over to the crime lab. Any original reports were long since destroyed, but the scientists there showed Elisa to their microfiche library and let her sit down and dig in.

How is new evidence uncovered? This is how: a private investigator hired by lawyers looking for a miracle charms her way into a lab and flips through thousands of pieces of microfiche looking for a blood test whose existence has been repeatedly denied by the DA's office. She doesn't blink, or wander, or doze off at the wrong time. And when she finds it, she makes several copies of it and gets the hell out of Dodge to call the lawyers.

Tenacity, boobs, and luck.

The blood test Elisa had found wasn't supposed to exist. Both Dubelier, the prosecutor in charge at trial, and the prosecutor handling the appeal had stated in writing that there was no blood evidence in the DA's possession. Yet the blood test had been sent to the DA's office and put on prosecutor Jim Williams' desk before Thompson's armed robbery trial in May 1985—and never revealed to Thompson's trial counsel. (Williams testified that he had no recollection of receiving the report, though one of his colleagues testified that he had sent it to Williams.) It showed that either the carjacker or the teenager in the car had blood type B. Both the teenager and John Thompson had blood type O.

This was the first revelation of Dubelier's and Williams' failure to turn over evidence that could exculpate Thompson, in violation of his constitutional rights under the 1963 Supreme Court case Brady v. Maryland. There would be other failures, as Banks and Cooney leveraged the discovery and an angry court of criminal justice judge to get unfettered access to the case files for the murder and armed robbery from the New Orleans police department and the Orleans Parish DA case files. From these, Banks and Cooney learned of several additional witnesses to the murder who had been interviewed by police, and were known to the DAs, who never told Thompson's lawyers. The defense hired another private investigator to track down those witnesses, more than 15 years later, and get their stories.

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