The Watch | Opinion
October 4, 2017 at 3:23 PM
The first time I interviewed John Thompson, I was a little taken aback. Back in 2013, I traveled to New Orleans to interview him for a story on prosecutor misconduct. He was a victim of such misconduct. I began the interview by asking him whether anyone had ever apologized to him. He went off on a rant, at times just inches from my face.
“Tell me what the hell would they be sorry for. They tried to kill me. To apologize would mean they’re admitting the system is broken. That everyone around them is broken. It’s the same motherf–––––g system that’s protecting them,” he said, jabbing his finger into the air for emphasis. He added, “What would I do with their apology anyway? Sorry. Huh. Sorry you tried to kill me? Sorry you tried to commit premeditated murder? No. No thank you. I don’t need your apology.”
I hadn’t expected that. I had interviewed exonerees before, and I had always been struck by their grace and their unfathomable lack of bitterness. I still admire that about those particular exonerees. But there’s also something to be said for anger. We admire grace. Anger compels a reaction. Thompson’s anger was righteous. It was unimpeachable. And once you know the circumstances of his two convictions — of what happened before, during and after his incarceration — it’s really the only emotion that makes any sense.
Thompson served 18 years in prison, 14 of them on death row. In 1985, he was convicted of two separate crimes, a murder and an armed robbery. He was innocent of both. He was convicted of the armed robbery first. He had a solid alibi for the murder, but to give it, he would have had to take the stand. That would have opened the door for prosecutors to tell the jury about the armed-robbery conviction. So he didn’t. The jury convicted him and sentenced him to die.
By 1999, Thompson had outlasted seven death warrants. But he was running out of time. With his date in the execution chamber just a few weeks away, and his appeals exhausted, a defense investigator stumbled onto a piece of microfiche film while pouring through records at a city police station. The film contained records of a blood test that had been done on a piece of clothing from one of the victims of the armed robbery. The victim had said the blood was from the man who attacked them. The test results excluded Thompson as the source of the blood. The armed-robbery conviction was tossed, and Thompson’s execution was delayed. He was tried again for the murder and this time was able to tell the jury about his alibi. The jury took a little over a half hour to acquit him.
Orleans Parish (La.) District Attorney Harry Connick quickly convened a news conference and announced that he was appointing a grand jury and an investigator to look into Thompson’s conviction. That investigator resigned a week later. He’d later reveal that he believed the prosecutors in Thompson’s case had knowingly hid the blood test results, and he recommended that at least one of them be indicted. Instead, Connick closed down the grand jury and ended the investigation. One of the two prosecutors would later confess on his deathbed to another prosecutor that he and his colleague had hidden the blood evidence. The prosecutor who heard the confession then waited five years before revealing it. To his credit, he then helped work for Thompson’s release. To this day, he is the only prosecutor to receive any discipline for Thompson’s wrongful convictions.
Toward the end of his time on death row, Thompson befriended another condemned man named Shareef Cousin. The two became fast friends over long talks while playing chess through the bars between their cells. They discovered that prosecutors had pursued the same strategy against Cousin that they had against Thompson — they hit him with several armed-robbery charges at the same time they charged him for an unrelated murder. There was likely another reason for their fast friendship: Cousin was innocent, too. He had an alibi for the murder — he was playing basketball. He had video and several witnesses. The jury convicted him anyway. Cousin’s murder conviction was thrown out in 1998, but the robbery convictions remained.
For all of its lofty aims of exacting accountability for those who perpetrate crimes, the criminal-justice system is pretty lousy at holding itself accountable. It is nearly impossible for a wrongly convicted person to sue the prosecutors who convicted him, even when the prosecutors themselves break the law to get that conviction. They’re protected by absolute immunity. Anything they do in their role as prosecutors shields them from liability. The only way to sue them is if you can show they violated a suspect’s rights while acting as investigators, not as prosecutors. Even here, they’re still protected by qualified immunity.
There are two other ways one can try to hold the state accountable for a bad conviction. Under what’s known as a Monell claim, a defendant can hold a city or county liable if he or she can show a pattern or practice of abuse — that the training, policies and oversight of a city or county with respect to police and prosecutors were so deficient that constitutional violations were inevitable.
In 2000, Cousin filed a lawsuit against Orleans Parish that would have a direct bearing on Thompson’s own attempt to hold the state accountable. Cousin’s lawsuit made some shocking allegations, including that prosecutors arrested defense witnesses on fabricated charges and held them in jail specifically to prevent them from testifying — which would have been a violation of both Cousin’s rights and those of the witnesses. In 2003, his claims were denied by the U.S. Court of Appeals for the 5th Circuit. The judges first ruled against Cousin’s claim that the misconduct the prosecutors committed was done in their role as investigators. They then ruled that even if the most damning allegations in Cousin’s lawsuit were true, the prosecutors were protected by absolute immunity.
Cousin also made a Monell claim. Here, there was ample evidence of a pattern and practice of abuse in Connick’s office. In 1995, the office had even been rebuked by the U.S. Supreme Court. Justice David Souter wrote that the Orleans Parish DA’s office had “descend[ed] to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of the truth.” The office had also been rebuked by state courts — in some cases, judges had ordered prosecutors to take classes on their obligations to turn over evidence. Of the 36 men Connick’s office had sent to death row, 11 later had their convictions overturned due to misconduct, and four had been exonerated. Inexplicably, the 5th Circuit also ruled that none of this mattered. The court found that overturned convictions were enough to deter the office from committing misconduct, and “the imposition of additional sanctions … is unnecessary.”
By the time Thompson filed his suit in 2005, then, just two years had passed since the 5th Circuit had dismissed Cousin’s. Making the same arguments meant he’d likely lose, too. But in a 1989 ruling, the Supreme Court suggested that in some cases, a single constitutional violation might be so egregious and wanton that it could have occurred only under a regime with inherently flawed training, policies and practices. Thompson’s case involved prosecutors intentionally and illegally hiding the evidence that vindicated him. That would seem to be as good an example as any. At trial, Thompson showed that even since the 1995 rebuke, and even since the Cousin case, Connick’s office continued to withhold exculpatory evidence, almost as a matter of policy. A jury awarded him $14 million.
Orleans Parish appealed, and Thompson’s case eventually went before the Supreme Court in 2011. He lost in a 5-4 vote. In his majority opinion, Clarence Thomas wrote that instead of municipal liability for a single incidence of misconduct, there were methods for holding Thompson’s prosecutors accountable. What Thomas’s opinion didn’t note is that the 5th Circuit had already rejected those methods in Cousin’s case. Thomas also suggested that state bars were available to sanction bad prosecutors. But again, in Thompson’s own case, the only prosecutor who was punished was the one who exposed the misconduct. That was in 2005. Until then, the Louisiana Bar hadn’t punished any prosecutor. It has sanctioned two since then. After the decision, several attorneys tested Thomas’s theory by filing complaints against several prosecutors in the state. It took several years before they could even get confirmation that the bar had received their complaints.
This is why Thompson was so angry. You can hardly blame him. He believed — with some justification — that the men who conspired to send him to death row had engaged in a premeditated attempted murder. The criminal justice system sends all the other people who commit that crime to prison. The men who committed it against him only got more powerful. “This isn’t about bad men, though they were most assuredly bad men,” Thompson told me in 2013. “It’s about a system that is void of integrity. Mistakes can happen. But if you don’t do anything to stop them from happening again, you can’t keep calling them mistakes.”
Thompson never stifled his anger, but he did harness it. He became an outspoken advocate for reform and a champion for the wrongly convicted. He wrote about his case in the New York Times, telling one particularly poignant story about his son learning of his father’s pending execution when a teacher unknowingly read an article about it aloud to the class as a lesson in making good choices. In 2015, he lashed out at Bill and Hillary Clinton for donning the role of reformers without ever really owning up to their contribution to mass incarceration. (Bill Clinton fought for and signed into law the Antiterrorism and Effective Death Penalty Act, which makes it much more difficult for death row inmates to have their cases heard in federal court.)
But Thompson also worked to help others who had endured a wrongful conviction. When he was released in 2003, he bounced back quickly. Within just a couple years he was married, owned a house and ran a sandwich shop with his wife. They then lost everything to Hurricane Katrina. That made Thompson realize that other exonerees may not have made the transition as well as he had. “Men come home and the system has nothing in place to help them put their lives back together,” he told Prison Legal News last year. “They need to be reprogrammed because the survival tactics they learned in prison don’t work in the outside world.” In fact, in many states, exonerees aren’t even eligible for job training or integration programs offered to parolees — because exonerees aren’t on parole.
So Thompson started Resurrection After Exoneration, headquartered in the Treme neighborhood in New Orleans. The organization helps recently released exonerees build a support network among family and friends. It also provides housing and counseling and offers job training in fields such as screen printing and barbering. When I was there in 2013, portraits of the people the organization has helped lined the walls, serving as both a record of the success of Thompson’s vision and a moving indictment of the system he was fighting. Cousin joined the organization a couple of years after his release. When Glenn Ford’s conviction was overturned and he was released from a Louisiana prison after 30 years on death row, he was battling advanced-stage lung cancer. He had nowhere to go. Thompson’s group took him in. Ford told Al-Jazeera a couple of years ago that without Thompson, he’d “probably be under a bridge somewhere.”
And yet here, too, Thompson had to endure adversity. The organization was burglarized last summer. The thieves took almost everything. “When you enter the RAE House you see art, computers, small businesses, and the smiles of those who call it home,” Thompson wrote in a crowdfunding appeal. “When I walked in one morning, it was all gone. Thousands of dollars worth of electronics, including computers and laptops that are used for job searches and resume building, were stolen. All the barbershop equipment for our mentorship program for young aspiring barbers was stolen.” Resurrection After Exoneration raised about $8,000 to replace the equipment.
Thompson died of a heart attack yesterday at age 55. The headline for that New York Times op-ed he wrote in 2011 read: “The prosecution rests, but I can’t.” I hope Thompson has now finally found some rest. But the system that took 18 years of his life and nearly executed him is no better at holding its own accountable now than it was when he was convicted.
We need more people to be as angry as John Thompson was.