Justice Delayed & Justice Denied

The Supreme Court protects prosecutor misconduct.

A recent article by David Savage in the LA Times reveals the shocking disposition of the court to protect prosecutors who willfully suppress evidence that could exonerate defendants.

Savage’s piece centers on John Thompson, a man who spent 14 years on Louisiana’s death row because prosecutors in the New Orleans district attorney’s office had intentionally hidden a blood test that would have set him free. After he was released, Thompson sued the office of now-retired District Attorney Harry Connick, and a New Orleans jury awarded him $14M dollars. However, oral arguments recently put forth from the Supreme Court suggest that he may never see a single cent.

One month before Thomson’s final execution date, he received an odd request from his lawyers: They sent him a stapled letter asking him to prick himself in the finger, drop blood on the letter, seal it and return it.

“I was cranky and disillusioned that day. I was preparing to tell my family that this execution date was final.” Thompson recalled. He had exhausted all of his appeals, and he was scheduled to die the day before his son’s high school graduation. “But when they asked for blood, I thought they must have found something.”

And did they ever. By sheer luck, a young investigator poring through crime lab files found a microfiche of the blood test concealed by the District Attorney’s office. Thompson’s blood type did not match that of the test, and this single piece of DNA evidence set him free.

Now courts are protecting the prosecutors who suppressed the evidence from civil suits by claiming that, as part of the judicial process, prosecutors must be protected from harassment that could deflect them from doing their duty. This begs the burning question:

What ‘duty’ was the Connick DA’s office doing by letting an innocent man rot on death row, living away from his family, with a ticking clock over his head announcing the hour of his death?

While there may be moral hazard in allowing prosecutor intimidation, to deny redress in this case is a horrible miscarriage of justice. As Chief Justice Warren Burger has noted,  “A sense of confidence in the courts is essential to maintain fabric of ordered liberty for a free people,” and nothing undermines public confidence like the judicial system who protects its own while letting innocents members of the public face prison or even death. At the very least, it is discouraging that the highest court in the land cannot avoid throwing the baby out with the bathwater.

“They [the Supreme Court] are closing off any meaningful remedy for the most serious misconduct,” said Bennett Gershman, professor at Pace Law School. “The Thompson case is a dramatic illustration of how an innocent person was nearly executed. If the court is insensitive to that, it tells you where we are with the criminal justice system.”

“Insensitive” is good characterization of the court system, but “broken” may be even better. Leading the crusade against Thompson is Justice Samuel A. Alito who questioned whether the whole district attorney’s office should be held responsible for the misdeeds of a few prosecutors.

In Thompson’s case, yes, it should, particularly if the high court is interested in sending the message that prosecutorial misconduct will not be tolerated. It seems that the DA’s office had no trouble letting an innocent man rot in prison to send a message to the community, so perhaps a sharp corrective is in order here.

Additionally, Brady vs. Maryland (1963) states that prosecutors must reveal evidence that could free a criminal defendant. With the advent of DNA technology, legal experts claim that more and more prosecutors are violating the Brady statute by hiding crucial resports and DNA samples that magically appear years after the trial.  This is simply inexcusable.

Lastly, while police officers and other public officials can be sued if they violate a person’s constitutional rights, prosecutors and judges are immune even if they deliberately violate the law. Otherwise, the court argues, “harassment from unfounded litigation” could prevent them from doing their duty, the court said. This begs another burning question:

What, exactly, is “unfounded” about a suit where prosecutors intentionally concealed evidence that could have set a man free from death row?

The Sixth Amendment guarantees the right to a fair trial, and in the Thompson case litigation acts as a corrective protecting that right. Moreover, one wonders how our democratic society is supposed to have “confidence in the court”  when there is no  litigation to check runaway judicial powers.

Despite all this, precedent shows dim prospects for Thompson and his ilk. The Supreme Court has heard three cases in the past three years, all to depressing results. In 2009, the Supreme Court threw out a suit in which prosecutors used jailhouse informers who they knew were lying to juries. The plaintiff in the case, Thomas Goldstein, spent 24 years behind bars for a murder he did not commit.

Last year, the court heard a case in which two Iowa prosecutors framed two teens for the murder of a security guard. In their defense, the prosecutors claimed, “there is no freestanding constitutional right not to be framed.” Scarily, the case may have racial overtones as the two teens were black, the prosecutors were white and witnesses in the case had pointed to a white suspect. The case was thrown out before justices issued a decision.

Thompson’s case is scheduled to be decided early this year. It will be a landmark case setting a strong precedent for the legal system. We can only hope that the court does the right thing and awards Thompson his settlement. Though it may do little to compensate the 14 years Thompson spent behind bars, it will bring the justice system one step closer to preventing the other falsely accused citizens from enduring what he did. Dolan Legal will continue to follow this case as it unfolds.

–Steven Flores

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