Thompson v. Connick; Jury Awards 14 Million Dollars to Man Who Served 18 Years in Prison for Crime he Did Not Commit After Prosecutors Hid Favorable Evidence


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last year the U.S. Supreme Court in Van de Kamp v. Goldstein effectively reinforced a longstanding constitutional rule of law that prosecutors who engaged in unethical and criminal misconduct to secure criminal convictions are immunized from civil liability. They are protected by the doctrine of absolute immunity which insulates public officials from civil liability when performing their official duties, even if their conduct is unethical and criminal so long as the conduct is carried out within the scope of the official’s duties.


The Supreme Court will again this Term entertain a case, Connick v. Thompson, concerning prosecutorial misconduct and civil liability attached to that misconduct. This time under a different rule of law. The sole question before the court in Thompson is whether the failure of a District Attorney to train his assistant prosecutors about the requirements of Brady v. Maryland is sufficient to trigger the rigorous culpability and causation standards associated in municipality liability cases. The Thompson case involves prosecutors deliberately withholding exculpatory evidence which led to the capital murder conviction of John Thompson and causing him to spend 18 years in prison, most on death row. There is no dispute about this fact. The Orleans Parish District Attorney’s Office concedes as much. A jury subsequently awarded Thompson $14 million dollars in damages, one million dollars for each year he was wrongfully held in solitary confinement on death row.  The District Attorney’s Office has appealed this award all the way up to the U. S. Supreme Court.


Thompson’s horrific saga in the criminal justice system began in December 1984 when prominent New Orleans businessman Raymond T. Liuzza, Jr. was killed outside his home. The Orleans Parish District Attorney’s office, then headed by Harry Connick, Sr., was under considerable pressure to see the crime solved and its perpetrator(s) prosecuted. In the heat of the Liuzza investigation, Jay LaGarde and his two siblings faced an attempted armed robbery/carjacking outside the city’s Superdome. Shortly after the LaGarde attempted robbery (January 1985) Thompson and a co-defendant named Kevin Freeman were arrested for the Liuzza murder.


The Thompson/Freeman arrest set in motion a sequence of events that would lead to gross prosecutorial misconduct by Connick’s office. LaGarde’s father saw Thompson and Freeman’s photographs in the local newspaper and figured they were probably the individuals who had tried to rob his children. He contacted Connick’s office about his suspicions which led to Thompson and Freeman being charged with armed robbery.


The armed robbery charge proved to be a tactical godsend to prosecutors handling the Liuzza murder case. They decided to try Thompson first on the robbery charge which would allow them to use that conviction to help secure a death penalty verdict in the Liuzza case. Thompson was convicted of the attempted robbery based solely on the identification of LaGrade and the two siblings. He was sentenced to the maximum 49 ½ years. His defense attorney was not aware that prosecutors had in their possession evidence that would have exonerated Thompson on the robbery charge—and prosecutors deliberately withheld, and concealed, that evidence from the defense.


Three weeks after the LaGarde robbery trial Thompson was put to trial for Liuzza’s murder. Kevin Freeman, who was Liuzza’s actual killer, testified for the prosecution, lying to the jury by saying he saw Thompson shoot Liuzza. Thompson was found guilty as charged. At the penalty phase, the LaGarde robbery victims testified with one victim telling the jury she believed Thompson would have killed the three siblings had her brother not wrestled the gun away from him. Prosecutors told jurors that since Thompson was already serving a “near-life sentence” on the robbery charge, the death penalty was the only appropriate verdict to protect society. The jury agreed. Thompson was carted off to death row to await his lethal fate.


After many years of post-conviction efforts to overturn the death penalty verdict, highlighted by multiple requests for any Brady material, Thompson faced imminent execution in 1999. One month before his execution, Thompson’s appellate attorneys independently, without any assistance from the District Attorney’s office, discovered a crime lab report concerning blood evidence found on LaGarde’s pants leg. Prosecutors knew the blood belonged to the robber—and they also knew it did not belong to Thompson. The report was irrefutable evidence that they had wrongfully convicted Thompson for the LaGarde robbery and they were not about to disclose this evidence to his defense counsel.


With this belated discovery, the courts ordered Connick’s office to make all its files available to Thompson’s appellate counsel. They found a treasure trove of exculpatory evidence, including evidence that matched Freeman to the LaGarde robbery. This newly discovered evidence resulted in a new trial for Thompson in 2003 at which he was acquitted following only 35 minutes of deliberation. Thompson, through new attorneys, filed a 42 U.S.C. § 1983 lawsuit against Connick and his prosecutors, alleging that the district attorney’s office failure to train his staff in Brady-related matters triggered liability under the U.S. Supreme Court precedent City of Canton v. Harris which held that a municipality may be held liable for failure to train its employees. The jury awarded Thompson $14 million in damages and the Fifth Circuit Court of Appeals upheld that judgment.


Prosecutorial misconduct has long been a fixture in state criminal prosecutions. But the unholy phenomenon has crossed into federal territory, particularly in the wake of the 9/11 terror attacks which created a climate among the nation’s U.S. Attorneys that they could, and should, convict at any costs. Just last month USA Today reported the findings of its six month investigation dealing with misconduct by federal prosecutors. The newspaper documented 201 cases since 1997 in which federal judges have determined that U.S. attorneys, “the nation’s most elite and powerful law enforcement officials,” either violated the law or ethical rules in the prosecution of cases. One case concerned Orlando, Florida businessman Nino Lyons who spent three years in prison because federal prosecutors withheld exculpatory evidence from the defense.


“Instead, the prosecutors covered up evidence that could have discredited many of Lyons’ accusers,” USA Today reported. “They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.”


U.S. District Court Judge Gregory Presnell was so incensed by the prosecutors’ misconduct that he not only overturned Lyons’ conviction but declared him actually innocent. And while this was a tremendous benefit to Lyons who regained a measure of his integrity and reputation, “neither the Justice Department nor the lead prosecutor in the Lyons case, Bruce Hinshelwood, would explain the events that cost Lyon his home, his businesses, and nearly three years of freedom,” the newspaper reported. “The department investigated Hinshelwood but refused to say whether he was punished; records obtained by USA Today show that the agency regulating Florida lawyers ordered him to attend a one-day ethics workshop …”


Hinshelwood was so cavalier about Judge Presnell’s exoneration that he was quoted in the media as saying: “It is of no concern to me.”


Judge Presnell was more than concerned. USA Today said the judge “savaged” the Justice Department in a written order, saying Hinshelwood and other prosecutors engaged in “a concerted campaign of prosecutorial abuse” which included covering up evidence and knowingly allowing “felons” to “lie to the jury.”


Federal prosecutors with Hinshelwood’s cavalier attitude about justice, who are driven to win regardless of the facts, are the reason why the Justice Department “internal ethics watchdogs” have seen a rise in complaints from judges about prosecutors, up from 42 in 2001 to 61 last year, according to USA Today. The newspaper spent six months “examining federal prosecutors’ work, reviewing legal databases, department records and tens of thousands of pages of court filings” and Pace University law professor Bennett Gershman, an expert on prosecutorial misconduct, said the investigation revealed a pattern of “serious, glaring misconduct”—one that is “systemic now, and … the system is not able to control this type of behavior … there is no accountability.”


The chief federal public defender in Albany, New York, Alexander Bunin, agreed, calling USA Today’s findings “the tip of the iceberg” because there are so many tainted cases being concealed by the prosecutorial system. Still, the newspaper documented 47 cases in which the defendants were either exonerated or set free because of prosecutorial misconduct. These findings are both shocking and scandalous. Former U.S. Attorney Dick Thornburgh agrees, telling the newspaper that “no civilized society should countenance such conduct or systems that failed to prevent it.”


Thornburgh is right. There is no way to excuse or justify a woman spending eight years in prison for a 2000 Arizona bank robbery because federal prosecutors did not reveal to her defense that another woman, “who matched her description almost exactly,” had also been charged with bank robberies in the same area. Or a Washington, D.C. case cited by USA Today in which two men spent two decades in prison before a court reversed their convictions after learning prosecutors had deliberately “hid evidence that two others could have committed the offense.”


We have lamented about tactics by federal prosecutors to overcharge defendants and then pump unlimited resources into convicting them for an array of offenses related to the same course of conduct. Last year the Seventh Circuit Court of Appeals threw out the conviction of an Illinois businessman, Charles Farinella, who was convicted in 2007 for changing “best when purchased by” dates on salad dressing bottles which was not a crime.  The Court called the prosecutor’s language in the indictment, which continued throughout trial, “false and misleading” because the dressing was “shelf stable” and had no expiration date. The appeals court chided lead prosecutor Juliet Sorensen for ethical violations in securing the wrongful conviction—a conviction that cost Farinella his business and his more than 20 employees their jobs.


“”It’s the United States government against one person,” Farinella told USA Today. “They beat you down because they are so powerful. They have trillions of dollars behind them. Even someone who’s innocent doesn’t have much of a chance.”

The systemic pattern of misconduct by U.S. attorneys has cost taxpayers millions of dollars as the Justice Department paid off defendants for wrongful convictions and encumbered the staggering costs for retrials in cases where convictions were reversed because of prosecutorial misconduct. But beyond the financial consequences, prosecutorial misconduct cost even more in both measurable and immeasurable ways as it erodes the integrity of the justice system.


“There are rogue prosecutors, often motivated by personal ambition or partisan reasons,” Thornburgh told USA Today. “Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office.” The former chief judge in northern district of Alabama, U.W. Clemon, agrees, telling the newspaper: “Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don’t care about the rules.”


These concerns by both Thornburgh and Clemon are why criminal defense attorneys nationwide are watching the Thompson case so closely. While the decision would have no direct bearing on prosecutorial misconduct by U.S. attorneys, a favorable ruling in Thompson would at least ensure that all major city governments in this country would make sure its prosecutors are not only trained in the rule of Brady but forced to comply with its mandate. And state prosecutors across the country are aware of Thompson’s potential: they are filing amicus curiae briefs urging the Supreme Court to brush aside this attempt to hold municipalities liable for the actions of rogue prosecutors.


And therein lies the root problem in prosecutorial misconduct cases: the system, whether at the state or federal level, does everything it can to cover up the misconduct. Prosecutors enjoy enormous power knowing they cannot be held personally liable for their misconduct, and that sense of unbridled power is enhanced by the knowledge that their superiors will not only condone their misconduct but protect them from any accountability for it. A favorable ruling in Thompson, holding district attorneys civilly liable for wrongful suppression of exculpatory evidence, would significantly curtail this unchecked sense of power by rogue prosecutors.  If their human conscience and reverence for Justice do not force them to do what is right, maybe a hit to their wallets will…


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair