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?

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

On April 19, 1999, Michael Banks and Gordon Cooney traveled from Philadelphia to Louisiana's death row at the State Penitentiary at Angola to meet with their client, John Thompson. Banks and Cooney had represented Thompson since 1988, and his appeal for capital murder was rapidly reaching an inexorable conclusion. Despite the lawyers' best efforts, they had failed. The U.S. Supreme Court had rejected their final petition. Thompson's eighth—and final—death warrant had been signed by the judge. John Thompson was scheduled to be executed by lethal injection on May 20, 1999.

Banks and Cooney had a brief and emotionally wrenching meeting with Thompson, made worse by the fact that Thompson was more concerned about them than he was about himself. Exhausted and demoralized, they began the long drive back to New Orleans, where they would have to tell Thompson's mother that they had been unable to save her son's life. During the drive, Cooney checked his voice mail. What he found was a message from a private investigator with surprising new evidence in the case—the first pull on a thread that would take John Thompson off death row, then out of prison entirely, and this week to the United States Supreme Court.

Stories of wrongful imprisonment are so frequent these days that we barely notice them. A man was released today after [two, 10, 27 years] in prison for a [murder, rape, robbery] he didn't commit. Newly unearthed evidence shows [he, she, they] couldn't have committed the crime. The descriptions drone on as our minds wander elsewhere. Another DNA case, we think, with the defense lawyers reaching back, CSI-style, for a piece of hair or a new test of decade-old semen.

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In fact, it's rarely that easy. Even today, DNA evidence is only available in about 10 percent of criminal cases. Thousands of people each year are convicted of crimes on the basis of eyewitness and circumstantial testimony, without any scientific evidence linking them to the crime. And in the few cases in which DNA evidence is available, challenges of collection, maintenance, and storage often create problems. So we know that lots of convictions are based on evidence with holes—and that the DNA evidence that is used to rebut it can be hard to come by. So as a practical matter, how do lawyers representing convicts on appeal find the evidence suggesting their clients are innocent? That question is the backdrop to next week's Supreme Court battle.

In John Thompson's case, there was no physical evidence linking him to the crime—the brutal robbery and murder of an unarmed New Orleans hotel executive in early December 1984. The shooting was outdoors, and no blood, fabric, or hair samples were collected at the scene. Ballistics confirmed that police had found the murder weapon, but Thompson's fingerprints weren't on it. Instead, Thompson's conviction was based entirely on the testimony of four witnesses. Kevin Freeman, also arrested for the murder, testified (in exchange for a plea bargain) that he had seen Thompson pull the trigger. Two other men (who received cash rewards for their testimony) stated that they had heard Thompson confess to the killing, and another man (whose rape charge had been dropped by prosecutors two days before) said that Thompson had sold him the gun.

The murder victim was the son of a well-connected New Orleans businessman. Solving the case was a priority for the district attorney, Harry Connick Sr., a dapper and charming politician with a deep love for the old standards, which he sang at a weekly gig in a New Orleans nightclub. Connick also was known for some aggressive theories of criminal law, including his resistance to "open file discovery," the theory that prosecutors should simply provide all evidence in their files to defense lawyers. Connick sent a message of the importance of the businessman's murder by appointing his third-in-command, Assistant DA Eric Dubelier, to it and adding his most experienced homicide prosecutor, Assistant DA Jim Williams.

After a six-week investigation, Thompson and Freeman were arrested on the basis of the accounts of Freeman and the other witnesses and the murder weapon. Freeman quickly rolled on Thompson in exchange for a plea, creating a neat bundle of evidence for the prosecutors. They charged Thompson with murder one, but they wanted more. Connick had been elected on a commitment to seek the death penalty for all first-degree murder cases, and Louisiana required an "aggravating factor" to be added to the murder before a jury could sentence Thompson to death. Thompson, who had no violent priors, did not readily provide one.

The prosecutors' problem was quickly solved. The day after Thompson's arrest, his picture ran on the front page of the New Orleans Times-Picayune. Stewart Lagarde, a father of three in the New Orleans suburbs, called police and said that his children could positively ID Thompson as the man who had carjacked them outside the Superdome in late December. Although the carjacking was committed three weeks after the murder, Dubelier and Williams tried the carjacking first.

As in the murder, police had a gun, but no prints. Even so, three white teenagers identifying Thompson in open court overwhelmed Thompson's alibi (he claimed he was at work). The jury convicted Thompson of armed robbery. One month later, Dubelier and Williams successfully convicted Thompson of murder, and using the carjacking as an aggravating factor, convinced the jury to sentence Thompson to death.

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