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?

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Armed with those new witnesses, each of whom could have testified in 1985, Michael Banks and Gordon Cooney were finally able to get their client a new murder trial in 2003. There, John Thompson was acquitted in less than 35 minutes.

Gordon Cooney, John Thompson and Michael Banks. Click image to expand.
Gordon Cooney, John Thompson, and Michael Banks

According to the Innocence Project, a national organization that represents incarcerated criminals claiming innocence, 36 men convicted in Orleans Parish during Connick's 30-year tenure as DA have made allegations of prosecutorial misconduct, and 19 have had their sentences overturned or reduced as a result. (Connick retired in 2003.) The prosecutor who led the armed robbery trial and assisted in the murder trial, Jim Williams was one of the prosecutors whose work has come under scrutiny. In 1995, Esquire photographed him, for a piece on the death penalty, standing confidently in front of his desk with one of his favorite office decorations: a 12-inch-high, battery-powered (and operational) electric chair, complete with the mug shots of the five men he had personally prosecuted successfully in capital punishment cases. All five have subsequently been released or had their death sentences commuted to life due to procedural problems in their trials.

It's clear that the prosecutors in Thompson's carjacking case deliberately ignored the rules of evidence and that their strategy was to use the carjacking case to get the death sentence in his murder case. But it also became clear when Dubelier, Williams, and Connick were questioned under oath that they could not articulate the Brady rule, which sets forth the legal standard that determines when prosecutors must turn over evidence that could be used to show a defendant's innocence. (Dubelier and Williams now make their livings as criminal defense attorneys, Dubelier for a large firm in Washington, D.C., and Williams as a sole practitioner outside of New Orleans.)

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After listening to two days of testimony about how Connick ran his DA's office, with Dubelier and Williams blaming each other and fumbling over conflicting and inaccurate explanations of what Brady requires, a federal court jury in New Orleans awarded Thompson a $14 million verdict in 2007. The jury found that his 18 years behind bars (14 of which he spent in solitary confinement on death row) were caused by Connick's deliberate failure to train his prosecutors on their obligations to turn over exculpatory evidence.

The Orleans Parish DA's office has appealed, saying in effect that Dubelier and Williams were rogue prosecutors and that Thompson's case was at worst a single prosecutorial failure and does not satisfy the Supreme Court's requirement of a "pattern and practice" of indifference to the rules. They argue that prosecutors should have absolute immunity from suit—that there simply are no circumstances serious enough to allow private citizens to recover damages from the DA's office. This approach is being challenged not only by Thompson, but by a large stable of former prosecutors in amicus filings. The court will hear argument in the case, Connick v. Thompson, on Wednesday.

As John Thompson waits to find out whether his jury verdict will stand, the numbing parade of improper incarcerations marches past, with new cases in New Orleans being uncovered. Just last month, the Times-Picayune reported on the case of Booker Diggins, convicted in 1988 of armed robbery and rape. Two prosecutors in Connick's office in 1988 "knew that blood and semen had been collected from the victim, along with a blood type that didn't match the woman's." They failed to turn over this information to defense lawyers. Diggins was convicted of aggravated rape and received a sentence of life without parole.

John Hollway, an attorney and writer, recently published his first book, Killing Time: An 18-Year Odyssey From Death Row to Freedom, about this case.

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