The New York Times editorial board sets its sights on the district attorney’s office in New Orleans:
How many constitutional violations will it take before the New Orleans district attorney’s office is held to account for the culture of negligence and outright dishonesty that has pervaded it for decades?
In dozens of cases over the years, the office — largely under the command of former District Attorney Harry Connick, Sr. — failed to turn over material to defense lawyers that would have helped their clients . . .
. . . prosecutors only last month disclosed a 19-year-old memo that undercuts their case against Robert Jones, who was sentenced to life without parole for a 1992 kidnapping, robbery and rape that he denies committing.
The case depended upon Mr. Jones’s connection to another man, Lester Jones, who was himself convicted of multiple crimes around the same time. Prosecutors at trial said the two men had been accomplices. But an internal memo written in 1996 makes it clear that prosecutors knew before trial that there was no evidence linking the men.
Despite their awareness of this key flaw, which the police had also alerted them to, the prosecutors did not reveal it to defense lawyers. Nor did the D.A.’s office turn over the memo when Robert Jones challenged his conviction a decade later, and Lester Jones reiterated in court that he did not know Robert Jones, and had told prosecutors this before trial.
The memo only came to light in late September, when a new prosecutor on the case found it and turned it over. By then, a state appeals court had already tossed out Robert Jones’s conviction because of other instances in which prosecutors withheld crucial evidence from the defense, including a statement from a witness describing someone who did not look like Mr. Jones.
The editorial takes aim at the Supreme Court’s decision in the 2011 case Connick v. Thompson, but also misstates the majority opinion. John Thompson was wrongly convicted of two separate crimes, including a murder that landed him on death row. He was ultimately released when investigators working for his attorneys found an old crime lab report that exonerated him. The Times editorial writes that Justice Clarence Thomas’s opinion “threw out Mr. Thompson’s $14 million jury award on the grounds that he had shown a violation only in his own case, and not a pattern of misconduct, as the justices have required.”
That isn’t quite what happened. The most common way to argue that a municipality should be held liable for the violation of a plaintiff’s rights is to show that the city has demonstrated a pattern and practice of unconstitutional policies, training and behavior. Given that the courts have turned over at least 36 convictions for prosecutor misconduct, including the convictions of nine death row inmates (four of whom were later exonerated), that would certainly seem to be the case in Orleans Parish. Indeed, the U.S. Supreme Court itself had rebuked the office in a 1995 opinion for “blatant and repeated violations” of the Brady rule, and a culture that had “descend[ed] to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of the truth.” Press accounts of the office dating to the 1990s (see a summary of them in this brief) describe judges in Louisiana growing increasingly frustrated with the office for failing to turn over exculpatory evidence, on occasion even ordering prosecutors to take classes to better learn the law.
That would certainly seem like a “pattern and practice” of misconduct. But Thompson didn’t make that argument. The reason: Another wrongly convicted man, Shareef Cousin, had previously made it in 2003. Incredibly, Cousin lost at the U.S. Court of Appeals for the Fifth Circuit. If you want to see just how absurd the protections for prosecutors have become, take a few minutes to read that opinion. In one passage, Cousin alleges that Connick’s office actually had his alibi witness arrested and detained on trumped-up charges, solely to prevent him from testifying for Cousin — an egregious and outrageous violation of both the witness’ rights and Cousin’s. The Fifth Circuit ruled that even if the allegation was true, the prosecutor responsible would still be protected by absolute immunity.
John Thompson filed his own lawsuit in 2005. It didn’t make much sense to try to make an argument the federal appeals court had just rejected just two years earlier. With the “pattern and practice” argument taken from him, and because the prosecutors who withheld the evidence in his case were personally protected by absolute immunity, Thompson’s only hope was another Supreme Court decision involving a police shooting which held that, on rare occasions, a single incident can be such an egregious violation of a defendant’s civil rights that it could only have been the result of official indifference to the Constitution. That’s the argument Thomas was considering, and that he ultimately rejected in Thompson’s case. I still don’t think it was the correct ruling. What happened to Thompson was really damned egregious. And the evidence that was withheld in his case was the product of a culture of indifference to ethical and constitutional obligations. The Supreme Court didn’t agree.
The particularly frustrating part about Thomas’s opinion is its complete disregard for the context in which Thompson filed his suit. Thomas notes that Thompson didn’t make the “pattern and practice” argument, so the court couldn’t rule on it. But he neglects to mention the Fifth Circuit decision that essentially made that argument impractical. Given that the wrongly convicted in New Orleans had been denied the ability to sue individual prosecutors (due to absolute immunity) and the government that employs them, Thomas argues that sanctions from the state bar are sufficient to deter prosecutors from committing misconduct.
But that clearly wasn’t the case in Connick’s office. And as I reported in a 2013 investigation for the Huffington Post, it also hasn’t been the case since. After the Supreme Court’s ruling in Thompson, defense attorneys in Louisiana filed a series of ethics complaints with the Office of Disciplinary Counsel, which handles such complaints for the Louisiana Bar. It took more than two years for them to even get notice of receipt for those complaints. They finally received notice of receipt shortly after my article ran, but at least as of April, the office still hadn’t acted on the complaints.
All of this means that not only do the wrongly convicted in Louisiana not get a day in court against the people whose mistakes put them in prison, but there’s also no accountability for those mistakes at all. The prosecutor’s job is loaded with incentives to seek convictions at any cost and void of any sanction for going too far. It should be of no surprise, then, that Louisiana DA’s offices have long been ruled with a bloodthirsty, tunnel-visioned culture of conviction — where prosecutors hang nooses on their walls, decorate their desks with miniature electric chairs (complete with photos of the men they’ve personally sent to death row) and give one another plaques engraved with hypodermic needles upon winning death sentences.
The current DA in New Orleans, Leon Cannizzaro, is no exception. As the Times editorial points out, Cannizzaro is still planning to re-try Robert Jones. Cannizzaro himself has a troubled history since taking over the office in 2009. In one case, Cannizzaro personally called an attorney in Lafayette Parish to ask for leniency in an armed robbery case because the defendant was a witness in a case in Orleans Parish. None of this was revealed to the New Orleans defendant’s attorneys. That case was the basis of one series of those ethics complaints filed against Louisiana prosecutors shortly after the Supreme Court decision in Thompson. The other case that produced ethics complaints against Cannizzaro and his office was the conviction of Michael Anderson. From my 2013 report:
Anderson was convicted in 2009 of gunning down five men in an S.U.V. in the New Orleans neighborhood of Central City three years earlier. He was sentenced to death. It was the first capital case won by Cannizzaro, who at the time was new to his job as district attorney.
Anderson was awarded a new trial in 2010 when a judge found that prosecutors had failed to turn over exculpatory evidence. That evidence included a recorded interview in which the state’s main eyewitness made statements that undermined both her story and her credibility, and a deal the state had cut with a jailhouse informant who claimed Anderson had confessed to him. The informant, Ronnie Morgan, was facing his own charges for several armed robberies. Prosecutors let him testify in Anderson’s trial that he was getting no favors for his testimony, even though he was later allowed to plead to charges in what another judge would call “the deal of the century.”
The main prosecutor in that case, John Alford, was later suspended, but not because he withheld evidence in a murder case. He was suspended after he was arrested in Wyoming for drunkenly stealing a taxi cab and driving it from a bar to the hotel where he was staying. He was eventually rehired by Cannizzaro, then took a job in St. Tammany Parish, where he recently won the “St. Slammany Award” for his skill at sending nonviolent offenders to prison.
Cannizzaro has tried to position himself as a reformer, but those gestures keep bumping up against actions that suggest the Connick culture is still alive and well. Like many DAs, Cannizzaro has set up a “conviction integrity unit,” ostensibly to look for previous wrongful convictions. But he has done that even as his office continues to fight for convictions thrown out by appeals courts, often due to prosecutor misconduct. In fact, his office is still actively covering for misconduct from the Connick era. In March, Cannizzaro’s office indicted a defense investigator for allegedly impersonating a law enforcement official shortly after she exposed another instance in which one of Cannizzaro’s prosecutors failed to disclose exculpatory evidence.
Back in 2011, Cannizzaro was asked by a local reporter why his prosecutors failed to turn over exculpatory evidence in yet another murder case — in this case, another deal the state had made with an important witness. He replied that the defendant had never asked for it, and added, “If he doesn’t, we’re not obligated to give it to him.” That’s a complete and utter misunderstanding of a prosecutor’s obligation under Brady. But it’s pretty consistent with the approach taken by Cannizzaro’s predecessors.
All of which is to say that for all the revelations to come out about the Connick era, very little has changed in Louisiana. Clarence Thomas was fine with shielding Orleans Parish and its prosecutors from liability because of the state bar’s ability to sanction wayward prosecutors. He couldn’t have been more wrong. Unfortunately, the Supreme Court doesn’t generally revisit cases when it gets its facts wrong.
The Times-Picayune recently reported that billionaire activist George Soros is spending $256,000 on a DA’s race in Caddo Parish, Louisiana. Soros is hoping to change the leadership in a parish that has recently led the country in death penalty cases. In Louisiana, it seems clear that the courts and the bar have little interested in disciplining misbehaving prosecutors. The fact that Connick continued to get reelected for decades, and that Cannizzaro coasts along with fawning press profiles and high approval ratings, suggests that trying to hold them accountable at the polls may prove difficult, too.
But at this point, it’s really the only option left.