It's Time To Send Cheating Prosecutors To Jail

Silhouette of weight scales
Silhouette of weight scales

John Thompson, a 22-year-old black man in New Orleans, was convicted in 1985 -- in two separate trials -- of carjacking and murder and sentenced to 49 years on the carjacking charge and to death for the murder. He spent the next 18 years at the Louisiana State Penitentiary, 14 of them on death row. He was 30 days away from execution when his attorneys finally found the evidence that cleared him. The New Orleans DA's office, then headed by Harry Connick, Sr., had known all along that a blood stain found on one of the carjacking victims, did not match Thompson and concealed that fact from Thompson's attorney in the carjacking case. In the murder case, they made a plea deal with a second man -- who was the likely killer -- to testify against Thompson. The informant got five years; Thompson was sentenced to death.

Most importantly, by winning a false victory on the carjacking charge, Connick and his henchmen effectively deprived Thompson of the right to testify in his own defense in the murder trial -- a flagrant bit of Constitutional misconduct. The carjacking charge was dropped in 1999 and Thompson -- now free to tell his side of the story -- was retried in the murder case in 2002. He was acquitted in 35 minutes.
None of the DAs involved in Thompson's case were ever disciplined or held accountable in any way. They almost never are.

As Brandon Buskey, a staff attorney for the ACLU's Criminal Law Reform Project, wrote in NY Times op ed: "In privileging the discretion of prosecutors and judges to enforce the law, we have come perilously close to placing these officials above the law."

Added Buskey: "...advocates across the country continue to expose judges who unlawfully deprive defendants of lawyers or throw people in jail simply because they are too poor to pay small amounts of money. We are constantly confronted with wrongful convictions rooted in a prosecutor's belief that winning a case is more important than seeking justice. These experiences compel us to recognize that sometimes the criminals our justice system most needs to confront are actually running it."

Under American law, prosecuting attorneys are among the most powerful of public officials. They can choose whether or not to bring criminal charges, what charges to bring, what evidence justifies charges, and they hold the power to plea bargain. Their power is nearly absolute and unreviewable, with absolute immunity from civil liability. At its best, this means prosecutors have significant opportunity to show leniency and mercy in a system that is frequently marked by broad and harsh criminal laws. At its worst, it leads to many wrongful convictions.

There are a number of ways for a prosecutor to commit misconduct. He could make inappropriate comments to jurors, or coax witnesses into giving false or misleading testimony. But one of the most pervasive misdeeds is the failure to turn over favorable evidence to the defendant, as required by the landmark Brady v. Maryland case of 1963, in the which the Supreme Court ruled that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment." It's the most common form of misconduct cited by courts in overturning convictions.
In 2015 alone, a record 149 people in 29 states, the District of Columbia, federal courts and Guam -- were exonerated of crimes they didn't commit. These 149 innocent defendants had spent on average about 14-and-a-half years of their lives in prison. Official misconduct was a factor in 65 exonerations in 2015, a record number. Three-quarters (44/58) or 75% of the homicide exonerations in 2015 included known official misconduct.

There was a time when the American public believed that innocent people didn't go to prison. If you were arrested and convicted by a jury of peers, you were guilty. Most people had faith that prosecutors and police and judges conducted investigations and trials with total integrity with goal of fairness and equal justice for all.

That faith is clearly misguided. Since the first DNA exoneration in 1989, 336 people have been exonerated and released on the basis of DNA testing alone. At least 20 of those spent time on death row. In fact, the total number of exonerations since 1989 -- based on all factors, not just DNA -- is 1,740, according to the National Registry of Exonerations at the University of Michigan Law School.

There is no aspect of the criminal justice system in greater need of reform. Of the many ways innocent people wind up in jail for crimes they didn't commit -- eyewitness misidentification, false confessions, tainted forensic science, incompetent legal representation, false testimony by dubious informants -- none is more grave and destructive to the American criminal justice system than official misconduct. Public faith in the integrity and fairness of the investigatory and prosecutorial process is the fundamental tenet of the justice system.

Prosecutors have been literally getting away with murder for years and it is past time for the free ride to end.

The Supreme Court missed a chance to swing the pendulum back in the right direction in 2011 when, in a 5-4 opinion written by Clarence Thomas, they threw out John Thompson's $14 million jury award for wrongful conviction on the grounds that he had shown a violation only in his own case, and not a pattern of misconduct.

"I don't care about the money, says Thompson, who founded and runs an organization called Resurrection After Exoneration to promote and sustain a network of support among formerly wrongfully incarcerated individuals in the South and to reconnect exonerees to their communities. "I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn't do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued... Because of that, prosecutors are free to do the same thing to someone else today."