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Last Sunday, I had the privilege of being asked to talk to a group of exonerees from death row at the end of a conference held here in Chicago by an organization called Witness to Innocence . I spoke about the state of the death penalty here in Illinois and around the country and about the stacked deck that a death-qualified jury poses for someone accused of murder — something that I have written about before.
In my book about my experiences as a capital defense lawyer, I tell the stories of some my clients over the years, both the innocent and guilty, to show their human faces and tell their (and my) all-too-human stories. But being in a room full of stories of triumph and near-misses, was, to say the least, awe-inspiring.
Ironically I ended talking to someone I had been speaking about two days previously at the Chicago chapter of the American Constitution Society’s Supreme Court Preview Program. The United States Supreme Court is about to decide a case called Connick v. Thompson, to answer the question about when someone who is wrongfully convicted can sue a prosecutor’s office when he can prove that a prosecutor in that office deliberately withheld physical evidence which proved him innocent. The facts are complex, but here is a brief overview: John Thompson was charged in a robbery and separately with a murder. The robbery was tried first. At the center of the case was a swatch from the defendant’s pants with the blood of the robber on it: Type B blood. Mr. Thompson’s blood is Type O. The prosecutor intentionally withheld this information, revealing it only when he had terminal cancer to a friend, who was also a lawyer. That lawyer was later sanctioned by the bar for not reporting it at the time.
After Mr. Thompson was convicted of the robbery, he was tried for murder, sentenced to death and was only a month or so away from getting executed when this was revealed. The robbery conviction was thrown out and Thompson got a new trial on the murder. He was acquitted in thirty-five minutes. Thompson then sued and received a fourteen-million-dollar verdict from a jury.
The prosecutor’s office wants this verdict overturned because, they say, the basis of that judgment was not that an official policy had caused the evidence suppression, or that an official policymaker had ordered the suppression but rather that the suppression occurred because the district attorney, Harry F. Connick, had been “deliberately indifferent” to the need to train prosecutors to turn over evidence which is favorable to the defense. While the prosecutor’s office acknowledges that liability may be based on a single constitutional violation only “in a narrow range of circumstances,” they say that these are not those circumstances.
As I was telling my audience the story of this case, a hand came up. It was the hand of John Thompson.
One of the reasons this story is so moving — and frightening — is how much luck had to do with Mr. Thompson’s exoneration: A post-conviction investigator found some old microfiche, saw that in fact there had been a report, and everything grew from there. In an exoneration case of mine, we found an exculpatory fingerprint report largely because the usual clerk was on vacation when our subpoena arrived, and the substitute didn’t understand how the game was played.
I told this gathering that I became very upset when my client in that case was ultimately freed — after sixteen years in prison, thirteen and a half of them on death row — when people would say to me “the system worked.” No, it didn’t, or those sixteen years would not have happened. No, it didn’t, or Mr. Thompson wouldn’t have come within a month of execution before this suppressed proof of innocence was revealed. These men — and many others — were saved in spite of the system, not because of it. To say otherwise is not only inaccurate, it is cruel.