Fifth Circuit Upholds $14M Judgment Against N.O. Prosecutors’ Office For Brady Violation In Capital Case: A Million For Every Year In Prison, And A Deathbed Confession By The ADA Just Before Execution
Posted by Alan Childress
This eye-catching summary [and link to Friday’s opinion on the U.S. Fifth Circuit website] by Robert McKnight, appellate practitioner and publisher of the Fifth Circuit Civil News and its daily updates:
Thompson v. Connick, No. 07-30443 (5th Cir. Dec. 19, 2008) (King, Stewart and Prado): A jury awarded $14M in compensatory damages on finding, in a case under 42 U.S.C. § 1983, that the district attorney’s office in New Orleans precipitated, by deliberate indifference to its obligation to train employees on their obligations under Brady v. Maryland, a failure to provide exculpatory blood-typing evidence from an armed robbery for which the plaintiff was convicted in April 1985. The same prosecutors accurately predicted that the April 1985 conviction would dissuade Thompson from testifying on his own behalf (in order to avoid impeachment with the conviction) in his trial a month later for a different armed robbery that ended in a murder. Thompson was convicted in the second trial and was sentenced to death. “Eighteen years later — and one month before [Thompson’s] scheduled execution — Thompson’s investigators uncovered the exculpatory evidence that indisputably cleared [him] of the armed robbery charge.” The murder conviction was also set aside, on the ground that the prosecutors’ misconduct deprived Thompson of his right to testify at that trial. When retried for the murder, Thompson was acquitted. The district court added about $1M in attorney’s to the jury verdict, and denied the defendants’ post-judgment motions. Holding: Affirmed for the most part. Among other holdings in a 48-page opinion, the Court held that Thompson’s claim was not time-barred, that sufficient evidence supported the jury’s verdict, that the withholding of evidence was not the unanticipated action of a single rogue prosecutor, that the jury instructions (and an answer to a jury question) on deliberate indifference were adequate, that the damages were not excessive, and that the fee award (which was half of what Thompson’s counsel asked for) was not an abuse of discretion.
The only reversal was on the district court’s erroneously naming of several individual defendants in the judgment, including former DA Harry Connick (yes, the father of the crooner). One eye-popping fact repeated from page 2 of Judge Prado’s opinion is well worth adding to the list within Andy Perlman’s excellent summary of our faith in the death penalty system:
Eighteen years later—and one month before his scheduled
execution—Thompson’s investigators uncovered the exculpatory evidence that
indisputably cleared Thompson of the armed robbery charge. Thompson was
then retried for the murder and found not guilty.
One month.
The Times-Picayune news story on the case also reports that “Thompson’s defense team learned that the prosecutor, an assistant toformer District Attorney Harry Connick, confessed while dying of cancerthat he had suppressed the lab report.” Luckily, and before that, “a month before his last scheduled execution date, an investigator founda piece of microfiche containing a 1985 lab report that indicated hecould not have committed an attempted armed robbery for which he hadbeen convicted before his trial in Liuzza’s slaying.” After this research find, a friend of the deceased ADA reported to defense attorneys the ADA’s confession and executed an exculpatory affidavit, about five years late.
A month.
Update: The movie will reportedly star Matt Damon and Ben Affleck. If it were Bruce Willis in The Player, the month would be cut much closer: “The traffic’s a bitch.”
Update 2: McKnight tells me that the dying ADA’s friend and former coworker eventually received a public reprimand for his own failure to properly report the confession (he should have reported it timely to the court, not years later and just to the DA and defense counsel). Actually it was a barroom, not deathbed, confession. And the ADA had not himself properly reported the Brady violation at all before he died in 1994, so my characterization of it as a deathbed confession [as if he really fixed the situation he created] was unduly charitable. Here is the 2005 discipline opinion on the friend, by the Louisiana Supreme Court.