Author: Sarah Lambert

[Prosecutor] Jim Williams tortured me and tried to kill me. By plain definition, I am a victim of torture and attempted murder. My mother, my sons, my grandmother were all victims of that torture. They hurt every day that I was locked in a cell on death row and the State was trying to kill me. Now everyone acts as if nothing happened to us. Is it because our lives don’t matter? No-one has been brought to justice for what happened to me, to the scores of others in Louisiana like me and to the thousands of people around the country who have been exonerated. We are victims, we want the perpetrators held to account and no one is doing it.

–John Thompson[1]

John Thompson spent eighteen years in prison—fourteen years on death row—for crimes he did not commit.[2] He was eventually exonerated and released.[3] To date, no one has been held accountable for Thompson’s wrongful imprisonment. His first attempt to hold the prosecutor’s office who wrongfully imprisoned him accountable for withholding exculpatory evidence was eventually denied by the U.S. Supreme Court.[4] Thompson, however, is not giving up hope that prosecutors, including one of the prosecutors in his own case, will be held accountable for unethical—what Thompson calls “arguably criminal”—actions.[5]

On August 2, 2016, Thompson filed a complaint to the Civil Rights Division of the U.S. Department of Justice (“DOJ”) against former Prosecutor Jim Williams and the Orleans Parish District Attorney’s Office, requesting an investigation.[6] This article provides a brief background of Thompson’s Supreme Court case (Connick v. Thompson) and the existing mechanisms of prosecutorial oversight, details Thompson’s complaint to the DOJ, and discusses possible future implications.

Connick v. Thompson: Prosecutorial Oversight and Accountability

Death-seeking prosecutors in Louisiana have been the subject of nationwide media attention on numerous occasions. Reports have ranged from the hosting of parties to allegedly celebrate death sentences to the wearing of neck ties with images of a noose and the Grim Reaper,[7] and at least one prosecutor openly admitting that there was “no thrill” for him unless the death penalty was a possible outcome of the case.[8] One has to wonder what mechanisms are in place to monitor prosecutorial discretion in a criminal justice system which allows punishment by death.[9] Interestingly, it seems a prosecutor is the only type of lawyer that cannot be sued for malpractice. In fact, prosecutors enjoy absolute immunity from civil liability under 42 U.S.C. § 1983 when acting within the scope of their prosecutorial duties.[10] Even judges are reportedly disciplined at a higher rate than prosecutors.[11] So what measures are in place to ensure ethical compliance of prosecuting attorneys? Connick v. Thompson purports to answer this very question.

In Connick v. Thompson, the U.S. Supreme Court opined that the state procedures in place—legal education and continuing education requirements along with attorney training and state disciplinary systems—were sufficient to teach prosecutors proper procedures and to ensure they abide by ethical guidelines.[12] With this in mind, the Court held that a single Brady violation did not establish “deliberate indifference” on the part of the District Attorney for failing to train his employees. A single violation was held not to be enough to establish the “obvious” need for additional Brady training; a pattern of similar violations was needed to prove “deliberate indifference” and hold the District Attorney’s Office civilly liable. This high “deliberate indifference” standard, in addition to the immunity enjoyed by prosecutors, makes a civil damage award highly unlikely for a victim of prosecutorial misconduct.

The U.S. Supreme Court placed its belief in the effectiveness of the attorney disciplinary system.[13] At least one local criminal defense attorney, Sam Dalton, tested the high Court’s theory in Louisiana by filing eight complaints of prosecutorial misconduct in one month.[14] Three and a half years later, the Office of Disciplinary Counsel (“ODC”), the entity charged with reviewing complaints of attorney misconduct in Louisiana, had only responded that Dalton’s complaints had been received.[15] Even when attorney disciplinary actions are initiated against prosecutors in Louisiana, it seems the penalty is minimal to non-existent. Take for example, the case of former Orleans Parish prosecutor Roger Jordan, in which the Louisiana Supreme Court found that Jordan knowingly withheld Brady information in a capital case. Jordan’s punishment: a three-month suspension deferred in its entirety.[16]

In addition to the apparent limited number of disciplinary actions brought against prosecutors (and when brought, the limited punishments), it seems the U.S. Supreme Court’s theory is flawed for another reason: the attorney disciplinary system relies on self-regulation.[17] The difficulties associated with reporting prosecutorial misconduct have long been recognized.[18] The first hurdle is knowledge of the misconduct. If the misdeed is withholding exculpatory evidence—like in John Thompson’s case—the wrongdoing may never even be discovered. The next issue is who reports the wrongdoing. Evidence suggests that prosecutors do not report each other or self-report, for that matter.[19] Defense attorneys (if they are aware of the misconduct) may fear retaliation against their clients,[20] while defendants may not have the resources or legal knowledge to file a complaint or even recognize that prosecutors are acting unethically. So who does that leave to report the misconduct of prosecutors? In 2013, Louisiana ODC chief counsel Charles Plattsmier reportedly expressed his opinion that judges were in the best position to report prosecutorial misconduct, and that “[they] are going to have to start reporting misconduct to the bar.”[21] Chief Judge Kozinski—of the U.S. Court of Appeals for the Ninth Circuit—apparently reached the same conclusion on a national scope when he wrote: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”[22]

In theory, prosecutorial training, rules of ethical conduct, and principles of professionalism in a self-governing system do exist to ensure that all attorneys, including prosecutors, act in a diligent, competent, honest, and professional manner. In practice, however, such mechanisms seem to have little effect on the prevention of prosecutorial wrongdoing and the promotion of prosecutorial accountability because, as the rules persist, so too does the misconduct.[23]

John Thompson’s Complaint to the U.S. Department of Justice

Although Thompson’s case was overturned by the U.S. Supreme Court, his fight for prosecutorial accountability continues. On August 2, 2016 Thompson filed a complaint against Jim Williams and the Orleans Parish District Attorney’s Office “for gross violations of civil rights” and requested an “investigation into the Orleans Parish District Attorney’s failure to address or remedy the rogue misconduct of Williams and other prosecutors in the Orleans Parish District Attorney’s Office.”

In his complaint, Thompson highlights the wrongdoings of former prosecutor Jim Williams and details Williams’s misconduct in six capital cases he prosecuted.[24] This misconduct reportedly included suppressing material evidence, making improper statements to juries, and exercising racial biases in jury selections. The complaint also expresses concern for the “over one hundred other individuals” Williams prosecuted, especially because the others were non-capital and therefore did not have as many procedural safeguards in place to protect innocence and ensure fairness.[25] The complaint asserts that the Orleans Parish District Attorney’s Office “has demonstrated indifference to the constitutional violations [within its office]” and demands that an investigation is warranted. Thompson requests a list of all convictions secured by Williams “to assess the integrity of those convictions.”

The authority that Thompson relied on for his claim and request of a federal investigation is 42 U.S.C. § 14141[26]—the statute which has recently been used to investigate civil rights violations by police departments across the nation, resulting in numerous consent decrees.[27] Although typically used to investigate police departments, the DOJ first used § 14141 as authority to investigate prosecutors in 2012—specifically investigating the Missoula County Attorney’s Office and its response to sexual assault allegations[28]—because of the prosecutors’ duties in enforcing the law.[29] The Ferguson complaint (filed by the DOJ after an investigation following the shooting of Michael Brown) also lends support to the idea that misconduct by prosecutors can be a violation of § 14141. [30] Specifically, the complaint states under a section asserting violations of § 14141 that “Defendant, its agents, and persons acting on its behalf have intentionally prosecuted and resolved municipal violations in the City of Ferguson in a manner that violates due process and equal protection requirements.”[31] The resulting consent decree similarly focused on prosecutorial actions with its inclusion of court reforming sections entitled “BIAS-FREE POLICE AND COURT PRACTICE,” and “MUNICPAL COURT REFORM.”[32] Under this line of authority, it is possible that the DOJ could begin to investigate district attorneys’ offices for violations of § 14141 in the same manner that it has investigated police departments and that more court-oriented consent decrees could result from such investigations.

Conclusion: Future Implications

It is unclear whether the DOJ will conduct the investigation of the Orleans Parish District Attorney’s Office requested by John Thompson. If it does, this could mean a new level of oversight and possible accountability for key players in the criminal justice system who currently seem to have little initiative to play by the rules. This could also mean a review of the cases of the reportedly “over one hundred other individuals” who were prosecuted by Jim Williams. And, this could finally bring a small sense of closure to John Thompson and others who wrongfully lost years of their lives at the hands of prosecutorial misconduct. In the meantime, Thompson will continue to educate the public on prosecutorial misconduct, the death penalty, and criminal justice reform.

 

  1. John Thompson, Cover Letter attached to petition filed to the Civil Rights Division of the United States Department of Justice on August 2, 2016.
  2. Connick v. Thompson, 563 U.S. 51, 79 (2011).
  3. See John “JT” Thompson, IPNO (2011) http://ip-no.org/exonoree-profile/john-jt-thompson (last visited Sept. 30, 2016); see also Statement of Rachel King, States Strategies Coordinator, ACLU Capital Punishment Project and Heather Hall, Public Education Director, ACLU of Louisiana, ACLU (May 9, 2003), https://www.aclu.org/news/louisiana-man-becomes-108th-innocent-exonerated-death-row (last visited Sept. 30, 2016).
  4. See Connick v. Thompson, 563 U.S. 51 (2011).
  5. John Thompson, Petition entitled “CIVIL RIGHTS COMPLAINT OF VICTIM AND EXONOREE JOHN THOMPSON AGAINST FORMER ORLEANS PARISH ASSISTANT DISTRICT ATTORNEY JIM WILLIAMS AND THE ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE FOR GROSS VIOLATIONS OF CIVIL RIGHTS AND REQUEST FOR INVESTIGATION INTO THE ORLEANS PARISH DISTRICT ATTORNEY’S FAILURE TO ADDRESS OR REMEDY THE ROGUE MISCONDUCTOF WILLIAMS AND OTHER PROSECUTORS IN THE ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE,” filed to the Civil Rights Division of the United States Department of Justice on August 2, 2016. Prosecutorial misconduct encompasses a broad spectrum of behaviors which can include: overcharging a suspect, withholding/delaying the release of exculpatory evidence, purposefully mishandling or destroying evidence, allowing witness perjury, convincing witnesses not to testify, relying on fraudulent science, making improper/misleading statements to the jury, and other unethical conduct. See Center for Prosecutor Integrity, An Epidemic of Prosecutor Misconduct, CPI (last updated Dec. 2013), http://www.prosecutorintegrity.org/wp-content/uploads/EpidemicofProsecutorMisconduct.pdf (last visited Sept. 30, 2016). Brady violations, such as the one in Thompson’s case, are a form of prosecutorial misconduct where prosecutors fail to disclose material evidence favorable to the defendant. See Brady v. Maryland, 373 U.S. 83 (1963).
  6. The following sources offer additional information on John Thompson’s petition: Natasha Robin, Exonerated man seeks federal probe of prosecutor, WVUE (Aug. 2, 2016), http://www.fox8live.com/story/32602297/exonerated-man-seeks-federal-probe-of-prosecutor; Kevin McGill, Advocates want feds to probe wrongful convictions in Orleans, WTOP (Aug. 2, 2016), http://wtop.com/government/2016/08/advocates-want-us-to-probe-wrongful-convictions-in-orleans/; Jed Lipinski, Death row exoneree files request for federal investigation of Orleans DA’s office, The Times-Picayune (Aug. 2, 2016), http://www.nola.com/crime/index.ssf/2016/08/john_thompson_justice_departme.html#incart_river_home; Jacki Jing, Death row exoneree calls for federal investigation of Orleans Parish District Attorney, WGNO (Aug. 2, 2016), http://wgno.com/2016/08/02/death-row-exoneree-calls-for-federal-investigation-of-orleans-parish-district-attorney/; Man wrongfully convicted files formal complaint against Orleans Parish DA’s Office, WWL (Aug. 2, 2016), http://www.wwltv.com/news/man-wrongfully-convicted-files-formal-complaint-against-orleans-parish-das-office/286172113.
  7. See Jeffrey Gentlemen, Prosecutors’ Morbid Neckties Stir Criticism, N.Y. TIMES (Jan. 5, 2003), http://www.nytimes.com/2003/01/05/us/prosecutors-morbid-neckties-stir-criticism.html?_r=0 .
  8. Jim Williams, the prosecutor reported to have made this statement, is the subject of Thompson’s complaint. As a prosecutor, Williams had a miniature execution chair placed on his desk with pictures of the five individuals he had sent to death row (including Thompson) attached. Michael Banks, one of Thompson’s attorneys, reported that the chair “was hooked up to a battery, so you’d get a little jolt when you touched it.” Out of the five individuals whose pictures were attached to Williams’s chair, two—John Thompson and Curtis Kyles–were later exonerated and two more had their sentences commuted to life imprisonment and one was granted a new trial. See Radley Balko, The Untouchables: America’s Misbehaving Prosecutors, And The System That Protects Them, HUFFINGTON POST (Aug. 1, 2013), http://www.huffingtonpost.com/2013/08/01/prosecutorial-misconduct-new-orleans-louisiana_n_3529891.html; see also James Ridgeway and Jean Casella, 14 Years on Death Row. $14 Million in Damages?, MOTHER JONES (Oct. 6, 2010), http://www.motherjones.com/politics/2010/09/connick-v-thompson.
  9. As of September 2016, the National Registry of Exonerations reports that out of over 1,884 exonerated persons who were listed in the registry, official misconduct was a contributing factor to their wrongful convictions in 51% of the cases. The National Registry of Exonerations, Basic Patterns, http://www.law.umich.edu/special/exoneration/Pages/Basic-Patterns.aspx (last visited Sept. 30, 2016). A study published by the registry analyzing all exonerations posted from January 1989 to May 18, 2015, ranked Orleans Parish as number one in the nation with the highest exoneration rate per capita (for counties with populations over 300,000). The National Registry of Exonerations, The First 1,600 Exonerations, http://www.law.umich.edu/special/exoneration/Documents/1600_Exonerations.pdf (last visited Sept. 30, 2016).
  10. Imbler v. Pachtman, 424 U.S. 409 (1976).
  11. See Michelle Ghetti & Paul Killebrew, With Impunity: The Lack of Accountability of A Criminal Prosecutor, 13 Loy. J. Pub. Int. L.349,363 (2012).
  12. Prosecutors can also be criminally sanctioned under 18 U.S.C. § 242 if the conduct can be proven “willful.” It seems, however, that criminal charges are rarely (if ever) pursued for prosecutorial misconduct. See Geoffrey S. Corn & Adam M. Gershowitz, Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct, 14 Berkeley J. Crim. L. 395, 405 (2009).
  13. Connick v. Thompson, 563 U.S. 51 (2011).
  14. See Balko, The Untouchables, supra note 8. See also Radley Balko, In Louisiana prosecutor offices, a toxic culture of death and invincibility, WASHINGTON POST (April 6, 2015), https://www.washingtonpost.com/news/the-watch/wp/2015/04/06/in-louisiana-prosecutor-offices-a-toxic-culture-of-death-and-invincibility/?utm_term=.48ab120ddd35#comments.
  15. Id. In 2013, after 17 years on the job, ODC chief counsel Charles Plattsmier could only remember three instances where prosecutors were disciplined for misconduct. Id.
  16. Emphasis added. The deferment was subject to the condition that Jordan engage in no further misconduct for a one-year period. In re Jordan, 2004-2397 (La. 6/29/05), 913 So. 2d 775, 784.
  17. See MODEL RULES OF PROF’L CONDUCT r. 8.3 (AM. BAR ASS’N 2016).
  18. See Balko, The Untouchables, supra note 8 (explaining issues with reporting prosecutorial misconduct including self-regulation and the fact that lawyers do not want to report other lawyers, the hesitancy of judges to report prosecutors, and the possible risks that defense attorneys would be taking in filing such complaints).
  19. Id.
  20. Id. “A complaint could make an aggrieved prosecutor and his colleagues less likely to cut deals or to ask judges for leniency for an attorney’s other clients.”
  21. See Balko, The Untouchables, supra note 8.
  22. United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013).
  23. See Ghetti & Killebrew, supra note 11 at 375-88. Appendices I, II, and III list Louisiana cases in which prosecutors were found to have engaged in misconduct; listed violations include Brady violations, Batson violations, and improper arguments.
  24. The cases detailed in the petition are that of John Thompson, Curtis Kyles, Norvell Smith, Saul Johnson, Allen Snyder, and Glenn Seals.
  25. See Thompson, Petition, supra note 5 at 23-25.
  26. 42 U.S.C. § 14141, entitled “Cause of action,” reads as follows: (a) Unlawful conduct It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. (b) Civil action by Attorney General Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1)1 has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
  27. See Ali Winston, American Police Reform and Consent Decrees, TRUTHOUT (Aug. 31, 2013) http://www.truth-out.org/news/item/18455-american-police-reform-and-consent-decrees.
  28. The U.S. Department of Justice, Justice Department Announces Investigations of the Handling of Sexual Assault Allegations by the University of Montana, the Missoula, Mont., Police Department and the Missoula County Attorney’s Office, DOJ (May 1, 2012), https://www.justice.gov/opa/pr/justice-department-announces-investigations-handling-sexual-assault-allegations-university.
  29. Amy Knight Burns, Improving Prosecution of Sexual Assault Cases: Can the Justice Department Use 42 U.S.C. § 14141 to Investigate Prosecutors’ Offices?, SLR (July 2014), https://www.stanfordlawreview.org/online/improving-prosecution-of-sexual-assault-cases/.
  30. United States v. City of Ferguson, Civil Complaint 4:16-cv-00180, (Feb. 10, 2016), https://www.justice.gov/opa/file/823486/download.
  31. Emphasis Added. The named defendant in the complaint is “[t]he City of Ferguson, through the Ferguson Police Department (“FPD”), the Ferguson Municipal Court, and the office of the City Prosecuting Attorney…” See id. at 1.
  32. United States v. City of Ferguson, Consent Decree NO. 4:16-cv-000180-CDP, (Mar. 17, 2016), https://www.justice.gov/crt/file/833701/download.