Hey, It's Not Like We Actually Executed Him

I haven't written about the Supreme Court's opinion in Connick v. Thompson because, frankly, I don't have anything much to add to what others, perhaps especially Dahlia Lithwick, have said.  Prosecutors hid the evidence that John Thompson was innocent and got him sent to death row.

Did they believe he was innocent?  I don't know.  Probably not.  Mostly when they cheat the reason is to make a weak case stronger, not to frame an innocent man.  Sometimes though, and this was one of those times, the effect is the same.

Anyhow it was chance, not a sudden burst of remorse or a new-found honesty that saved Thompson from being killed.  An investigator, in a last ditch effort to save Thompson's life, turned up the hidden evidence.  And so it goes.  Thompson's out on the street.

The numerous prosecutors who, over the years, concealed the evidence of innocence were investigate.  They could have been criminally charged.  They could have had their licenses to practice law revoked.  They could have been fired. 

Sure, those things could have happened.  Instead, well, here's how Thompson tells it in an op-ed in today's NY Times.

The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.

Why weren’t they punished for what they did? When the hidden evidence first surfaced, Mr. Connick announced that his office would hold a grand jury investigation. But once it became clear how many people had been involved, he called it off.

In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.”

The jury knew misconduct when they saw it.  Thompson spent 14 years on death row for a crime he didn't commit.  So they gave him $14 million.  A million dollars for each year.

The verdict was actually against Connick's office rather than against him or any of his line prosecutors.  That's because prosecutors themselves have absolute immunity from having to pay damages.  Why?  so that they won't be second guessing themselves when they lie cheat frame the innocent uprightly pursue the bad guys without fear or favoritism in the noble pursuit of justice.
The Supreme Court adopted that rule (taking it from the common law where it developed as an outgrowth of the principle that the King can do no wrong) in 1976 in Imbler v. Pachtman.  

We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system. Moreover, it often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice.

Anyhow, Connick (that's Harry Senior, the singer's dad) convinced the Supreme Court to hear the case.  Why should the DA's office have to pay?  Just because they cheated?  Pshaw.  That's the way we do business.  Besides, Thompson didn't show that we do it all the time or that we train people to do it, so we're immune anyway.
Which is basically what a 5-4 majority of the Court said, misrepresenting the record to ensure that the conclusion had some grounding in what looked like something other than

Who gives a fuck about Thompson?  He didn't get executed did he?  What more does he want?

Except, again, they didn't want to say that.
But let me go back.  I said that I haven't written about Thompson before because I didn't really have anything to add.  But then the Times published his op-ed.
Now let's, for just a second, focus on the fact that this guy spent 14 years on death row (18 in prison all together) for crimes he didn't commit and for which he wouldn't have been convicted had the prosecutors obeyed the law.

I was arrested in January 1985 in New Orleans. I remember the police coming to my grandmother’s house — we all knew it was the cops because of how hard they banged on the door before kicking it in. My grandmother and my mom were there, along with my little brother and sister, my two sons — John Jr., 4, and Dedric, 6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess they thought they were coming for a murderer. All the children were scared and crying. I was 22.

Thompson says it's not about the money.  It is, he says, about justice.  
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.
That's an ugly statement.  Not the part about how he wasn't in it for the money.  The part about how there's nothing that can be done to those guys.

See, it's precisely because criminal charges and ethics charges and job consequences are available that the Court said that screwing Imbler wouldn't give dishonest prosecutors a bye.

We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U. S. C. § 242, the criminal analog of § 1983. O'Shea v. Littleton, 414 U. S. 488, 503 (1974); cf. Gravel v. United States, 408 U. S. 606, 627 (1972). The prosecutor would fare no better for his willful acts. Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.

(Footnotes omitted.)

Except, as Thompson points out, it doesn't work that way.  Those checks are theory.  Doing it again, that's reality. 

Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

And after Thompson?

Because of that, prosecutors are free to do the same thing to someone else today.

Not just free to.  It's a moral certainty that they will.

Why wouldn't they?  They've demonstrated that it's the way to get convictions and that they don't much care about convicting the wrong guys.  They've demonstrated that it isn't just a one-off, that it's the way they do business.  And they've learned, if they ever really doubted it, that there's no consequence to them.

Part of the reason I write this blawg is the fantasy that I can have some impact, however slight, on public understanding and opinion and that, ultimately it's the public that matters in our system.

The courts are not our saviors.  Despite some great rulings now and then and a few terrific verdicts, the courts are part of a political and economic system that protects entrenched power.  Sometimes that's more obvious than others.  Thompson demonstrates that this is one of those times.

And it calls the question, or it should.  Just what kind of prosecutors do the people of Orleans Parish want? What kind of justice?

John Thompson says he was the victim of a crime.

A crime was definitely committed in this case, but not by me

He's right.  Really, more than just one crime.  And more than one criminal. All paid with tax dollars.