Last week, a majority in the U. S. Supreme Court rubbed salt in a decades-old wound. It denied John Thompson, a man who spent 18 years in prison – 14 on death row – for crimes he did not commit, $14 million in damages awarded him after he was exonerated. Thompson’s case sounds like something that took place in the 1920’s and 30’s, not the 1990s.
In 1984, Thompson was arrested in the murder of a man from a prominent New Orleans family. According to NPR, another man, Kevin Freeman, also was arrested for the murder, but he made a plea deal in exchange for testimony that he saw Thompson commit the crime. Prosecutors in the Orleans Parish District Attorney’s Office, then run by Harry Connick Sr. (Yes, the singer’s dad) needed more ammunition to seek the death penalty against Thompson, who had no violent felonies on his record. So they trumped up a carjacking charge against him and railroaded that case through. Once Thompson had a violent felony on his record, the carjacking conviction, prosecutors were able to convict him of the murder and send him to death row.
A team of lawyers from the law firm Morgan Lewis, took on his case. They thought they had exhausted every one of his appeals. (A date for Thompson’s execution was set seven times.) He was just weeks away from execution when a legal team investigator found evidence (on microfiche!) that ultimately resulted in Thompson’s exoneration, not only for the murder but in the carjacking case as well.
Here’s the legal background on the case described by Dahlia Lithwick in Slate: “In 1963, in Brady v. Maryland, the Supreme Court held that prosecutors must turn over to the defense any evidence that would tend to prove a defendant’s innocence. Failure to do so is a violation of the defendant’s constitutional rights. Yet the four prosecutors in Thompson’s case managed to keep secret the fact that they had hidden exculpatory evidence for 20 years. Were it not for Thompson’s investigators, he would have been executed for a murder he did not commit.”
Once exonerated, Thompson sued the district attorney’s office arguing that it was liable for failing to properly train its employees on the requirements of Brady. A jury awarded him $14 million, which was upheld by federal district and appeals courts. Connick, Sr. was among the petitioners who challenged the lower court rulings in the Supreme Court.
In writing the majority opinion, Justice Clarence Thomas acknowledged that prosecutors have an obligation to see that justice is done, and agreed that in the case of John Thompson they fell short. However, Thomas, who once portrayed himself as a victim of high-tech lynching, said prosecutors should not be held responsible for training – and thus the corrupt conduct – of the attorneys under their authority.
Thompson is coming out the better man in all of this. He says what bothers him most is that the Supreme Court decision opens the door for district attorneys to turn a blind eye to misconduct on their staffs.
“My life was spared despite the efforts of many prosecutors from Harry Connick’s office who sought my conviction and execution over 18 years. They’re the criminals they made people believe I was,” Thompson told the Associated Press.
“If I’d spilled hot coffee on myself, I could have sued the person who served me the coffee,” he told The New York Times. “But I can’t sue the prosecutors who nearly murdered me.”
Justices Ruth Bader Ginsburg, left, and Elena Kagan with President Obama. What would my father have made of this photo?
My father, Ebenezer Ray, would have inveighed against Justice Thomas’ cruel and convoluted decision. He would, however, have stood with the female justices on the court, particularly Justice Ruth Bader Ginsburg, who, in an unusual move, read her dissent aloud:
“From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady‘s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.
“What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of one lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady‘s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility . . . “
Ginsburg was joined in her dissent by fellow justices Elena Kagan, Sonia Sotomayor and Stephen Breyer, (Who also took the lead in the discussion of the merits of the gender discrimination class-action suit against Walmart this week.)
When my father was writing his columns and covering the courts in New York, the idea of female justices serving on the highest court in the land would have been a fantasy. In fact, he wrote a column published Feb. 22, 1936, in support of women serving as jurors in New York:
“Women’s fight for equal suffrage was a desperate and historical one. She won it,” he wrote. He credited Jane Todd, a Westchester County assemblywoman, with securing passage of a bill in the state assembly that would enable women to serve on juries in New York state.
“Negroes are not barred from jury duty in New York, yet there is almost total absence of men of color in jury panels. Should Assemblywoman Todd’s bills become law colored women might exhibit a different tendency. We could well appreciate a few colored faces in the present all-white atmosphere of the criminal courts jury box,” Ebenezer wrote.
Unfortunately, having “a few colored” faces in the jury box or even on the highest court of the land guarantees nothing.
In 1991, after Thomas was nominated to the Supreme Court, I wrote an editorial for the Boston Globe titled “A question of compassion.” I had written extensively about the sexual harassment charges made by Anita Hill, however, this editorial was about how he had publicly and dishonestly, castigated his own sister and her children for their “dependence” on public assistance.
“As the Senate Judiciary Committee conducts hearing on Thomas’ confirmation, questions regarding his dishonest portrayal of his sister will not come up,” I wrote. “But his failure to appreciate the difficulties of overcoming racism, poverty and male privilege – difficulties he has witnessed firsthand – suggests that he will have even less compassion on the bench for strangers who appear before him.”
Almost 20 years later, Connick v. Thompson stands as a reminder that Justice Thomas has not changed.