Although his story is far removed from what English criminal barristers would encounter in this country, his case is only one where we have been - and can be deployed - to save other innocent men from execution.
In 1985 Mr Thompson was 22 years old when the police kicked down his door and arrested him for the murder of Raymond Liuzza. At the police station he was played a recording of a fellow suspect called Kevin Freeman accusing him of shooting the victim. A few weeks earlier Mr Thompson had bought a ring and a gun from Mr Freeman. It transpired that the ring belonged to the victim and the gun was the murder weapon.
It was a high profile case. The victim was a wealthy hotelier and there was extensive media coverage. As it happened, a member of the public saw Mr Thompson’s photograph and thought he looked like the culprit in an unrelated attempted armed robbery of his children. Based on this purported identification, Mr Thompson was charged with that further offence.
The robbery charge was highly significant for two reasons. First, if Mr Thompson was convicted of a violent offence such as the robbery, he would by virtue of that conviction be eligible for the death penalty if found guilty of murder. Secondly, in order to avoid his bad character being put before the jury, the robbery conviction would deter Mr Thompson from giving evidence in his murder trial. There was public hunger for the death penalty in the case and a silent defendant would increase the odds of a conviction.
Non-disclosure of evidence
What was not known to the defence at the robbery trial was that one week prior to its commencement blood-staining from the robber on the victim’s trousers was analysed. Two days before the trial assistant district attorney Bruce Whittaker received the analyst’s report which determined that the robber had type B blood. No steps were taken to test the defendant’s blood. Mr Whittaker would later claim that he placed this report on the desk of assistant district attorney James Williams, one of the prosecutors at the robbery trial. Mr Williams would later deny having seen it.
On the day of the robbery trial Mr Williams’ co-prosecutor, Gerry Deegan, removed all of the exhibits from the police store, including the blood stained fabric. However when he booked the exhibits into the court’s property store the fabric was not included. Neither its existence nor the analyst’s report was made known to the defence or the court. Mr Thompson was found guilty.
The murder trial followed soon after and, as expected, Mr Thompson did not give evidence. A conviction duly followed. Almost before he knew it, Mr Thompson was in a recently vacated death row cell surrounded by a dead man’s belongings. He knew he should not have been there. So, it would seem, did the prosecutors.
The end of the road?
As the years passed and appeal after appeal failed Mr Thompson prepared himself to be killed by the State for a crime he had not committed. The 20 May 1999 execution date was his seventh, but it was to be his last. His lawyers of 11 years flew down from Philadelphia to explain that it was the end of the road. Mr Thompson’s younger son, John Jr, learnt of the execution date from his school teacher, who read an article to his class about the forthcoming execution and the consequences of bad choices.
As a last roll of the dice a private investigator employed by his lawyers visited the police station and was provided with a file from the police laboratory. Within it was the analyst’s report. Mr Thompson’s blood was immediately tested and found to be type O. He was not the robber. The district attorney was confronted with the discovery and the prosecution immediately sought a stay of execution and for Mr Thompson’s robbery conviction to be quashed. The Louisiana Court of Appeal in 2002 went on to quash the murder conviction on the basis that Mr Thompson had been deprived of his constitutional right to give evidence in his own defence.
The next year, however, there was a re-trial for the murder, notwithstanding that it was further discovered that disclosure had not been made of the existence of witnesses and police reports from 1985. This time the jury acquitted Mr Thompson in 35 minutes. After 18 years in prison, 14 of them spent waiting for death, Mr Thompson was set free with his bus fare to get him back to New Orleans. He received not a dollar in compensation.
Resurrection after Exoneration
Many who return to freedom in such circumstances would find the transition intolerable; it being one thing to have served their debt to society but quite another to be owed such a debt. Upon release Mr Thompson was fortunate enough to be taken under the wing of his New Orleans based attorney, Nick Trenticosta, who employed him at his law office, the Center for Equal Justice. I worked with him in 2004 while on an internship arranged by Amicus. Reprieve arrange similar placements. More important though than the support of his wife and lawyer in the months following his release, was Mr Thompson’s determination that he would not be defined or consumed by the injustice that had been wrought upon him.
As Mr Thompson worked on the office’s caseload he also busied himself by studying for the qualifications he had missed when at school. His principal urge, however, was to reach out to those who like him had been exonerated and returned to a society indifferent to their future prospects. Accordingly in 2007 he founded a charity, Resurrection after Exoneration, focused on helping exonerated prisoners reintegrate into society.
A second taste of injustice
To further the work of the charity and to seek redress for what had been done to him, Mr Thompson instructed his lawyers to issue proceedings against the Orleans Parish District Attorney, Harry Connick Sr. In 2005 a jury awarded him $14 million in damages, $1 million for every year spent on death row. The basis of the award was that his right to disclosure of exculpatory material, enshrined by Brady v Maryland, 373 US 83, had been infringed. The award was predicated on a finding that the District Attorney’s Office had incurred liability through its failure to train properly its prosecutors as to their disclosure duties.
The Fifth Circuit Court of Appeal upheld the finding. The district attorney appealed to the United States Supreme Court which held 5-4 on 29 March 2011 that the district attorney could not be held liable for his failure to train his subordinates as to their duties on the basis of a solitary incident of non-disclosure: Connick v Thompson 563 US 2011. In giving judgment for the majority, Justice Thomas said that Mr Thompson had failed to prove that Connick was “deliberately indifferent to a need for more or different training” but had only shown that additional training would have been helpful in making “difficult decisions”, which falls short of establishing “municipal liability”. Mr Thompson was entitled to nothing.
Fighting the corner for condemned men
To his credit Mr Thompson remains undaunted by this second taste of injustice at the hands of the American State. The work of his charity goes on, as does that of both Amicus and Reprieve which continue to deploy English trained lawyers to the many American States that retain capital punishment. Indeed at a time when the English Criminal Justice System seems to borrow more and more from American practices it is heartening that there are many who are prepared to relocate to the USA to fight the corner for condemned men and perhaps, in the process, help demonstrate that abolition of capital punishment might be something that America can learn from the old country. And maybe it should be a source of pride for us that whatever injustices are occasionally done in England, it has been a long time since our courts have sent an innocent man to his death.
The charity - Resurrection after Exoneration
The charity is working to transform the experience of exonerated men and returning long-term prisoners, creating social leaders where there is currently a cycle of recidivism, desperation and poverty. It has renovated a transitional housing facility that can house up to three exonerees. It will be run by exonerees for exonerees.
RAE’s exonerees now have access to individual counseling, educational opportunities, and financial and computer literacy training.
For further information visit www.r-a-e.org/
For information on Amicus and Reprive visit http://www.amicus-alj.org/ and http://www.reprieve.org.uk/
Max Hardy 9 Bedford Row