Prosecutorial Accountability

Killing Time
An 18-Year Odyssey from Death Row to Freedom
John Hollway and Ronald M. Gauthier
February 10, 2011

By John Hollway, an attorney, writer, and health care entrepreneur.

Can prosecutors with a history of misconduct ever be held accountable for Brady violations? We'll know when Connick v. Thompson is decided this spring.

The most frightening thing about John Thompson's story isn't the eighteen years he spent in prison in Louisiana, or the fourteen of those years he spent on Death Row in the State Penitentiary at Angola. It isn't that he lost the years from 22 to 40, or that he missed every night of his two sons' childhood.

The most frightening thing about John's unjust incarceration is that it was constructed by the deliberate actions of the New Orleans DA's Office. And unless the U.S. Supreme Court does the right thing in the recently argued case of Connick v. Thompson, they just might get away with it.

Thompson was arrested in 1985 and charged with the murder of a well-connected New Orleans businessman. Harry Connick, Sr. (the father of the singer) was the DA in New Orleans, and he made solving Liuzza's murder a priority. His handpicked prosecutors, Eric Dubelier and Jim Williams, built a case against Thompson based entirely on biased witness testimony and circumstantial evidence: two confidential informants who received reward money, a third who said he had purchased the murder weapon from Thompson, and a co-defendant who got a plea bargain for his testimony.

Connick's office policy required Dubelier and Williams to seek the death penalty for any first-degree murder case, and the case's political overtones and publicity only raised the stakes. Still, this created a problem, since Thompson, who had no violent prior felonies, lacked any "aggravating factor" required by Louisiana law to raise murder one to a crime of capital significance.

Dubelier and Williams solved that problem quickly. The day after Thompson's arrest, his mug shot made the front page of the Times-Picayune; later that day, the NOPD received a phone call from a man who believed that Thompson had carjacked his three children.

The prosecutors pounced on this development. They charged Thompson with armed robbery for the carjacking and then, despite the fact that the carjacking had occurred after the murder, they brought Thompson to trial first on the armed robbery. With positive IDs from three white teenagers and a flimsy alibi (Thompson claimed to have been working but had no documentation or support for that), Thompson was quickly found guilty of attempted armed robbery. Sentence: 49 years.

One month later, Thompson stood trial for murder. His recent armed robbery conviction was a double whammy: it kept him from taking the stand in his own defense in the "guilt" phase of his trial, and it provided the aggravating factor and proof of bad character necessary for Dubelier and Williams to seek the death penalty. In 1985, John Thompson, age 22, father of two boys ages 5 and 3, was sent to Angola Penitentiary to await his death by electrocution.

It would take fourteen years, right up until five weeks before his execution, for anyone to learn what had really happened. That was when Thompson's attorneys found a blood test in the NOPD Crime Lab - a test requested by and received by the DAs but never revealed to Thompson's attorneys despite repeated requests - that conclusively exonerated John Thompson in the carjacking case that had been the predicate for his death sentence.

It took four more years for the rest of the picture to be revealed: not only had Dubelier and Williams failed to turn over the blood test in the carjacking, they had withheld police interviews with a number of witnesses to the murder of Ray Liuzza. In 2003, John Thompson was retried for the murder of Ray Liuzza Jr., and this time he was acquitted after only 35 minutes of jury deliberation.

In May, 2003, a forty-year old John Thompson, father of two sons, ages 21 and 23, walked out of Orleans Parish Prison with nothing more than the clothes he had been arrested in in 1985. When efforts to receive even a minimal settlement from the DA's Office were unproductive, he filed suit.

For good reason, prosecutors acting within the direct scope of their prosecutorial roles have absolute immunity from prosecution. But Thompson's argument is different. During the thirty years that Harry Connick, Sr. was DA of New Orleans, his office was a consistent violator of Brady v. Maryland, the 1963 Supreme Court decision requiring prosecutors to turn over exculpatory evidence to defense attorneys. In fact, no fewer than nine allegations of Brady violations against Connick's office have been upheld by courts, and five men on Death Row have had their sentences overturned or reduced as a result.

Thompson's argument, then, was one of municipal liability. Jim Williams himself was a Brady machine, putting no fewer than five men on Death Row, only to have all five be either exonerated or receive reduced sentences due to improprieties in their trials. And new Brady violations from Connick's office are still being discovered, as in the case of Booker Diggins, sentenced to life imprisonment for rape and armed robbery in 1988. Only three weeks before Connick v. Thompson was heard by the Supreme Court, Diggins' attorneys found, you guessed it, a blood test commissioned by the DA's Office and never revealed to the defense.

Connick, Sr. knew that his ADAs weren't following the rule of Brady - nine judicial opinions should make that quite clear. Despite that, Connick testified in Thompson's civil case that for many years, his office conducted no training that would educate his prosecutors on how to satisfy their obligations under Brady. When such training was finally implemented (several years after Thompson's conviction), the instructions it provided about Brady were wrong.

The Supreme Court decision in City of Canton v. Harris articulates a theory of municipal liability: municipalities can be held liable under §1983 if the key policymaker shows deliberate indifference to a requirement to train employees and the lack of training creates an obvious risk of direct injury. Here, Thompson argues that any reasonable person could see that failure to train prosecutors about Brady would lead to an innocent man being convicted and sent to prison - which is exactly what happened. (The fact that Booker Diggins' virtually identical facts were committed by a completely different prosecutorial team in Connick's office makes Connick's deliberate indifference to training, and its resulting injury, that much more apparent.)

Thompson won in the Eastern District of Louisiana, and he won again in the 5th Circuit Court of Appeals. After a split decision by the 5th Circuit en banc, however, the case was heard by the U.S. Supreme Court in October.

The case has been overshadowed by some other cases in the recent term that have more glitz, but its importance should not be ignored. What is at stake is nothing less than the ability of our citizenry to hold government officials accountable for their actions. If the Supreme Court holds that Thompson's theory of municipal liability cannot apply to prosecutors, they will in effect confer absolute immunity to prosecutors who systematically ignored the requirements of the constitution.

There is no doubt that prosecutors have difficult and important jobs. But far too many in Harry Connick's office, including those involved with John Thompson's case, did the wrong thing when presented with exculpatory evidence. For the record, Dubelier and Williams deny any wrongdoing, and though an internal investigator in the Orleans Parish DA's Office wanted to indict Williams, Connick quashed the investigation before charges could be filed. As a result, we'll never know whether Dubelier and Williams were evil (guilty of deliberately framing a man they knew was innocent), or merely inept (careless with the facts of a case on their docket where a man's life was on the line). But we know that Harry Connick, acting as the New Orleans District Attorney, did nothing to avoid the mistakes that took 18 years of John Thompson's life away from him, and we know that neither Connick, nor Dubelier, nor Williams has suffered any professional, ethical, or other sanction or punishment for the repeated violations of Brady that caused Thompson to miss his adulthood and his children's formative years. It simply cannot be the case that such actions are beyond the law.