Brady Violations: Failure To Turn Over Exculpatory Evidence

by Alex Clark –

In 1985, the office of Louisiana’s District Attorney for the Orleans Parish, the head of which was District Attorney Harry Connick Sr., charged John Thompson with murder.  After seeing Thompson’s picture in the newspaper, as a result of the murder arrest and charge, he was fingered by the victim of a recent armed robbery as their assailant.

Roughly one week before the robbery trial, the DA’s Office had tested the blood sample taken from the robbery victim’s pants and found that the blood was type B.  However, prosecutors neither disclosed the blood test results to Thompson nor introduced them at trial, where Thompson was ultimately found guilty of armed robbery.

Come time for his murder trial, Thompson, fearing impeachment due to his robbery conviction and following the advice of his representation, declined to testify on his own behalf.  Thompson was convicted by a jury and received a sentence of death, which was in part based on the “aggravating factor” of his armed robbery conviction.

It is reported by Slate that 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 did not have a violent criminal record, so convicting Thompson of the armed robbery charge was vital to the DA’s murder case against him and possibly DA Connick’s political livelihood.

Thompson spent 18 years in prison, 14 of them in isolation.  During his incarceration, Thompson had his execution planned and scheduled by the state of Louisiana seven times.  In 1999, with all his appeals exhausted and within weeks of being executed, a private investigator working with his defense attorneys discovered a report on the blood type of the armed robbery assailant, which had apparently been hidden by prosecutors.

The report indicated that the robbery assailant’s blood type, B, differed from Thompson’s as he has type O blood.  As investigators for Thompson’s defense team delved deeper, they discovered that prosecutors had intentionally withheld not only the blood report, but other key pieces of evidence as well.

Moreover, according to another article by Slate, the “evidence included the fact that the main informant against him had received a reward from the victim’s family, that the eyewitness identification done at the time described someone who looked nothing like him…”

Mother Jones reported that after “learning of the attorneys’ discovery, another former New Orleans prosecutor, Mike Riehlmann, came forward with an astounding tale: Five years earlier, he said, his colleague Gerry Deegan, who was a junior assistant DA on the Thompson case, had told him that he’d hidden the test results and taken the pants from the evidence room. Riehlmann signed an affidavit, and JT’s convictions began to unravel.”

Following these revelations, Thompson’s attorneys moved for a stay of execution, which their client was granted.  The Louisiana Supreme Court then vacated the robbery conviction, thereby removing the aggravating factor, for which his death sentence was in part based, and gave him a sentence of life in prison.

Four years later, in 2003, Thompson was acquitted of the 1984 murder, the victim of which Slate reports (http://www.slate.com/id/2269765/) was the son of a well-connected New Orleans businessman that likely resulted in pressure falling on the DA’s Office to quickly resolve the case, after a retrial.  The jury took 35 minutes to find him innocent of the charges.

Orleans Parish District Attorney’s Office

In 1995, Esquire Magazine photographed former Orleans Parish prosecutor Jim Williams, who tried Thompson’s armed robbery case and assisted in his murder trial.  Displayed prominently in that photo was a desk ornament believed to be symbolic of the mindset DA Connick Sr. had fostered and even encouraged during his time at that post, as some advocates have suggested.  The photograph was part of the magazine’s story on the death penalty.

Williams had a model electric chair on his desk and “seated” in the chair were the photos of five African-Americans who had been successfully prosecuted by the DA’s Office and sentenced to death.  According to a 2007 article posted on the National Association of Criminal Defense Lawyers (NACDL), all five of the men have since been either exonerated (at least two of them) or had their death sentenced commuted to life as a result of procedural problems that occurred at trial. Thompson is one of the exonerated whose photograph was “seated” in the toy electric chair.

At the time of Thompson’s acquittal, DA Connick Sr. claimed that his office follows the rules.  According to a Mother Jones article (http://motherjones.com/politics/2010/09/connick-v-thompson), he continued, “we have an ongoing and continuing obligation to turn over exculpatory evidence and we do.”

However, Nick Trenticosta, who worked on Thompson’s case and was the director of the Louisiana Capital Defense Project (now known as the Center for Equal Justice), that’s just not the case. He is quoted in the Mother Jones article as stating that they “all try to portray it as a rogue prosecutor; a fluke.” Moreover, he stated that DA Connick Sr. awards those prosecutors in his office who are adept at obtaining convictions, which he believes creates a win at any cost mentality.

Many advocates believe this mentality can result in miscarriages of justice, as prosecutors will sometimes feel pressured to “win” and go so far as to hide evidence that could prove defendants’ innocence.

Trenticosta’s claims appear to be supported by the 2008 findings of the Innocence Project New Orleans’ examination, which focuses on DA Connick Sr.’s 28-year tenure.

The following is an excerpt from the report:  “According to available records, favorable evidence was withheld from 9 of the 36 (25%) men sentenced to death in Orleans Parish from 1973-2002. Four of those men were eventually exonerated, having been released only after serving a collective 43 years on death row. In other words, one in every four men sent to death row by the New Orleans District Attorney’s office from 1973-2002 was convicted after evidence that could have cast doubt on their guilt was withheld from them at trial. Four men, about 11%, were completely innocent.”

Frustrating many justice advocates-not to mention those who’ve been wrongfully convicted-is a lack of accountability. Many of them find that prosecutors, whose conduct resulted in the incarceration of innocent men and women, get off relatively easy given their instrumental role in obtaining guilty verdicts in such cases.

In the case of Jim Williams, the former Orleans Parish prosecutor with the toy electric chair, he has received no punishment for his role in convicting Thompson and is currently in private practice.

Orleans Parish Assistant DA Gerry Deegan, who confessed on his deathbed that he had hid evidence that later exonerated Thompson, is no longer alive.  The former prosecutor Mike Riehlmann, to whom Deegan confessed five years prior to Thompson’s private investigator uncovering the blood report, was “briefly” suspended before going on to practice as a defense attorney, according to a Mother Jones article. (http://motherjones.com/politics/2010/09/connick-v-thompson).

One of the four innocent men mentioned in the 2008 Innocence Project report, who had been wrongfully convicted and sent to death row, was 16 year old Shareef Cousin.  In 1995, Cousin became one of the youngest individuals to be sent to death row in the United States.

According to Mother Jones’ reporting, the prosecutor “in the case was shown to have both encouraged witnesses to lie on the stand and withheld a videotape that proved Cousin was playing basketball at the time of the murder.”

In 2005, “a prosecutor in the Cousin case was found guilty of withholding evidence; the Louisiana State Supreme Court gave him a three month suspension, then suspended that sentence,” according to Mother Jones.

After his exoneration, Thompson’s frustrations regarding the absence of prosecutorial accountability were voiced, “nobody in the prosecutor’s office ever faces charges, nobody has to pay.” He concluded, “A slap on the wrist for ‘malfeasance’ and then they’re back at work doing the same old thing.”

His attorney, Trenticosta, concurred, stating that nothing deters prosecutors from operating as they did in Thompson’s case and if “they get caught withholding evidence so what? Nothing happens to them.”

Legal Recourse

In 2003 (or 2005), Thompson sued the Orleans Parish District Attorney’s Office, Connick, Williams and current DA Leon Cinnizzaro.  Further, Thompson “brought suit pursuant to 42 U.S.C. § 1983 alleging that the district attorney’s office is liable for failing to properly train its employees on the requirements of Brady,” according to the Legal Information Institute at Cornell Law School.

Before we continue, it would be prudent to first touch on the legal components of the case.  In 1978, the Supreme Court ruled in Monnell v. Department of Social Services of New York that municipalities and bodies of local government could be held liable under Section 1983 if the “their policies or customs inflict a Constitutional injury,” according to the SCOTUSblog.

Moreover, in 1989, in “City of Canton v. Harris, the Court made clear that a governmental entity can be held liable under Section 1983 for its failure to train employees only if the plaintiff can prove ‘deliberate indifference’ to an obvious risk that constitutional violations will directly result from the policy or custom.”

In their ruling, “the Court discussed two hypothetical scenarios that might meet this standard: (1) cases in which the policymaker has been alerted to a training problem by a series of prior violations; and (2) cases involving single incidents, in which the need for training is so glaringly obvious that constitutional violations are inevitable.”

In 1963, in Brady v. Maryland, the Supreme Court ruled that failure to disclose exculpatory evidence that is material to a defendant’s innocence violates the defendant’s right to due process.   Furthermore, evidence that may reduce the defendant’s sentence must also be disclosed to the defense.

Based on the premise that the DA’s Office was liable for its failure to train prosecutors on Brady violations, a jury awarded Thompson $14 million in damages, a record for the state, and an additional $1 million in attorney’s fees.

The State then appealed the verdict, claiming it would bankrupt the DA’s Office if the verdict were to stand, all the way up to the Fifth Court of Appeals.  In their review of the case, the “panel’s view, because Brady violations are ‘a highly predictable consequence’ of failure to train, a pattern of similar violations is not required to show the ‘deliberate indifference’ required by Canton.”

The SCOTUSblog also reported that “the panel found that Thompson had demonstrated Connick’s deliberate indifference to the obvious need to train prosecutors on Brady by proving that the prosecutors were indeed inadequately trained and that Connick knew that failure to train would result in violations.”  Therefore, under Section 1983, the panel held that Thompson could recover damages.

Subsequently, the State appealed the case one last time, to the US Supreme Court, which heard oral arguments from both sides last fall.

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