New Orleans District Attorney Leon Cannizzaro has enough on his plate trying to put today's criminals in jail with scant resources, but now he also has to clean up a mess left by some of his predecessors.
For starters, the DA's office may have to pay a $15 million civil judgment awarded after a prosecutor under former DA Harry Connick Sr. admitted he withheld evidence in a murder trial more than 20 years ago. In that case, John Thompson spent 14 years on death row at Angola and was later acquitted of the murder after a second trial. The case could have been settled long ago for substantially less, but former DA Eddie Jordan refused to negotiate. Now Cannizzaro has to figure out how to pay for those mistakes.
Financially, the Thompson case is the largest of its kind in New Orleans history and could lead to taxpayers paying for more prosecutorial misconduct. Last month, a three-judge panel of the U.S. Fifth Circuit Court of Appeals upheld a jury decision awarding Thompson $14 million in damages and $1 million in attorney fees because the DA's office failed to properly train, monitor and supervise its attorneys on evidence disclosure.
Last week, Cannizzaro reportedly began exploring the possibility of asking the state to let his office declare bankruptcy. The only other alternative is to ask taxpayers to pick up the tab.
The Thompson case is a cautionary tale of prosecutorial misconduct.
On Jan. 17, 1985, Thompson was charged with the murder of hotel executive Ray Liuzza, who was robbed and killed a month earlier. Before that case went to trial, Connick's office convicted Thompson of armed robbery in an unrelated case. Thompson's attorneys in the murder case, knowing that prosecutors would use the armed robbery conviction against him if he testified in his own defense, advised him not to take the stand in the murder trial, which lasted three days. Thompson, who had 4-year-old and 6-year-old sons at the time, was convicted and sentenced to death.
Fourteen years later — just one month before he was scheduled to be executed by lethal injection — investigators working for Thompson discovered the DA's office had withheld blood evidence that would have exonerated him of the armed robbery. It took another four years for Thompson to win a new trial on the murder charge, on grounds he was deprived of his constitutional right to testify in his own defense. Thompson testified in the second trial, and his attorneys presented other DA-withheld evidence — including police and incident reports, witness statements, and eyewitnesses to the crime. This time, a jury deliberated 35 minutes before acquitting Thompson.
In July 2003, Thompson filed a civil suit against the Orleans DA's office, seeking damages for the time he spent in prison. His attorney, Michael Banks, who has worked on the case with Gordon Cooney since 1988, says their goal wasn't to win a big check for Thompson. All the two attorneys hoped for was enough money to get Thompson back on his feet with a place to live, education and some job training.
"One of the things about death row, as you can imagine, there's no vocational training," Banks says. "What are you going to train for? To die? You're trained to have a needle stuck in your arm and injected with fatal chemicals."
Before filing the suit, Banks says he and Cooney contacted Jordan's office and made it very clear they were willing to negotiate. Jordan's office rebuffed them repeatedly.
"Not $10,000 ... $100,000 ... $1 million — not anything," Banks says.
In early 2007, jurors in the civil suit deemed the DA's office under Connick had shown "deliberate indifference" to training attorneys in policies and procedures with regard to "Brady material" — a legal reference to the U.S. Supreme Court decision in the case of Brady v. Maryland, which requires prosecutors to turn over evidence favorable to a defendant when it is material to the defendant's guilt or punishment.
During Thompson's trial for the unrelated armed robbery, assistant DA Gerry Deegan knowingly withheld evidence — a pant leg that had the perpetrator's blood on it. The blood on the pant leg was type B, but Thompson is blood type O. Years later, on his deathbed in 1994, Deegan admitted his misconduct to another attorney. He died shortly thereafter of cancer.
Cannizzaro has asked the appellate court for a rehearing, but he admits Thompson was wronged. He maintains, however, that Connick did provide training with regard to Brady material and that the office shouldn't be held liable. Cannizzaro spent the early part of his career as a prosecutor in Connick's office; he was elected judge at Criminal District Court several years before the Thompson case.
"This is the most egregious of circumstances," Cannizzaro says. "I don't know if training would necessarily have helped anyone here, because someone opted to go out and literally break the law."
Thompson, who now directs the nonprofit Resurrection After Exoneration, which helps wrongfully convicted people adjust to life outside of prison, disagrees with Cannizzaro. He says the DA's office was more concerned with convictions than making sure the right person was incarcerated.
"This is what we hired Harry Connick to do as a prosecutor," Thompson says. "We asked him to train his people to make sure they protect our rights. I don't care if [Connick had a problem with murders] — I don't want him to send an innocent man to jail."
So far, the courts have agreed with Thompson. In addition to asking for a rehearing before the three-judge appellate panel that unanimously ruled against the DA's office, Cannizzaro will request all the Fifth Circuit judges to hear the case. Banks says such an "en banc" hearing is rare and that Cannizzaro's chances of prevailing are slim.
"When you get a unanimous opinion like this, it is much less likely," Banks says.
As for individual responsibility for prosecutorial misconduct, federal and state courts traditionally have accorded prosecutors wide-ranging immunity from civil lawsuits. In 2005, however, the Louisiana Supreme Court suspended former Orleans Parish assistant DA Roger Jordan for withholding testimony from the defense in the 1995 murder trial of Shareef Cousin. In that trial, Cousin was convicted of first-degree murder and sentenced to death. After the evidence was produced two years later, Cousin's conviction was overturned and he was removed from death row. The court gave Roger Jordan a three-month suspended sentence for his misconduct.
Dane Ciolino, a Loyola University law professor, notes that Brady cases take a long time to develop, so it is possible more will surface from the Connick era. Innocence Project New Orleans, a nonprofit group, recently released a damning report on Connick's 29-year tenure that claimed four innocent men were sentenced to death because prosecutors withheld evidence. Still, Ciolino says the Thompson case doesn't set a legal precedent. The fiscal ramifications, however, are substantial.
"Fourteen million (dollars) is huge," Ciolino says. "Keep in mind these weren't the actions of a few rogue prosecutors; rather they were a pattern of practice in the DA's office at the time.
If the Thompson judgment is upheld, it will be the largest — but not the only — civil judgment hanging over Cannizzaro's office, which has an annual budget of about $11 million. In 2005, 40 former DA employees were awarded $1.9 million in a federal racial discrimination suit against Eddie Jordan for firing them after he took office. The DA dragged out the appeals process, and the $1.9 million grew with interest to $3.7 million by late 2007. The state and the city agreed to lend the DA's office $2.7 million for the judgment — $1.7 million from the state and $1 million from the city — but the office must pay both the city and state $100,000 a year until the loan is repaid. The first payment to the state is due in 2010; the city's repayment process starts in December of this year.
Cannizzaro says he has a legal obligation to try to overturn the Thompson decision, adding he will appeal the case all the way to the Supreme Court if necessary. Once the appeal process is exhausted, Cannizzaro says he would consider negotiating a settlement with Thompson. Cannizzaro filed a request with the state for permission to file for Chapter 9 bankruptcy, but as of Friday he had withdrawn that request. Banks says he sympathizes with Cannizzaro and is willing to negotiate a settlement, but time is running out.
"[Cannizzaro] is cleaning up a mess that was created in part by predecessors, but now he's the guy with the broom," Banks says. "You can sit around and complain all you want that there's a mess on the floor of your kitchen, but if it's your kitchen, you have to clean it."