Holding Prosecutors Accountable

A recent Supreme Court decision begs the question of what, if anything, prosecutors can be held accountable for.

In 1985, John Thompson, a 22-year-old father of two, was wrongfully convicted of murder and sent to death row at Angola State Penitentiary in Louisiana. While facing his seventh execution date, a private investigator hired by his appellate attorneys discovered scientific evidence of Thompson’s innocence that had been concealed for 15 years by the New Orleans Parish District Attorney’s Office.

Thompson was released and exonerated in 2003 after 18 years in prison, 14 of them isolated on death row. The state of Louisiana gave him $10 and a bus ticket upon his release. He sued the District Attorney’s Office. A jury awarded him $14 million, one for each year on death row. When Louisiana appealed, the case went to the U.S. Supreme Court. This spring, Justice Clarence Thomas issued the

majority 5-4 decision

in


Connick v. Thompson


that the prosecutor’s office could not be held liable.

The controversial and divided decision leaves Thompson with no choice but to get on with his life, which, incredibly, he already has. He is the founder and director of

Resurrection after Exoneration

, an organization that provides transitional housing to exonerees in the New Orleans area. Thompson’s fortitude notwithstanding, his story has become a kind of cautionary tale of unchecked prosecutorial power. If prosecutors cannot be held accountable in this case, when can they be held accountable?

In

an op-ed for The New York Times

, Thompson writes, “I don’t care about the money. 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.”

Deliberate Indifference



The prosecutorial misconduct in Thompson’s case was no anomaly. According to a report by the Innocence Project of New Orleans, District Attorney Harry F. Connick’s office withheld evidence favorable to the defense in at least nine death row cases. Four death row convictions were overturned because of the misconduct.

In spite of this legacy, the Supreme Court ruled that the violation in the Thompson case was “a single incident,” and that no pattern of misconduct could be established. The majority opinion acknowledges the four other overturned convictions but argues that they don’t count because different types of evidence were withheld in those cases. In her

dissent

, Justice Ginsburg writes, “the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.” She cites ten items of evidence that were withheld from Thompson’s defense, including police reports, audiotapes and blood evidence that would have seriously undermined Thompson’s conviction.

Such violations have led to an incalculable number of wrongful convictions. Because of the often covert nature of prosecutorial misconduct, it is impossible to estimate how many innocent people have been affected. Furthermore, the vast majority of felony cases are resolved through plea bargaining and never go to trial. Prosecutors may have engaged in misconduct in those cases as well.

In at least 63 of the wrongful convictions later overturned through DNA testing, innocent defendants alleged prosecutorial misconduct in their appeals or civil trials. Examples of misconduct include elicting perjured testimony; destroying, concealing or fabricating evidence; making improper and inflammatory statements and more.

Recent studies of these and other cases have shown that prosecutors are rarely found at fault, and even when they are, they are very rarely disciplined for it. A USA Today investigation found that only one federal prosecutor has been disbarred, even temporarily, for misconduct in the past 12 years despite 201 documented cases of violated laws or ethics rules. The federal prosecutor in that one case was suspended from practicing law for just one year. A study conducted by the Northern California Innocence Project supports these findings. In that study, over 700 California prosecutors engaged in misconduct from 1997 to 2009 and only seven of them

were disciplined.

In response to the misguided ruling in

Connick v. Thompson

,

the Innocence Network sent a letter

to Attorney General Eric Holder, the Presidents of the National District Attorneys Association and the National Association of Attorneys General calling for solutions to the problem of prosecutorial misconduct. Nineteen wrongfully convicted victims of prosecutorial misconduct signed the letter: “Now that the wrongfully convicted have virtually no meaningful access to the courts to hold prosecutors liable for their misdeeds, we demand to know what you intend to do to put a check on the otherwise unchecked and enormous power that prosecutors wield over the justice system.”

The 19 exoneree signatories included five people who served time on death row. Kirk Bloodsworth, who spent two years on Maryland’s death row, remarked on the Thompson decision: “It’s sad for America that we allow court officers to inflict the most harmful of all errors upon us with glib and cavalier intent to only win. Justice in that event always loses.”

This article originally appeared in

The Innocence Project in Print — Summer 2011

.