Two New Bills in Louisiana Attempt to Rein in Prosecutors Who Made it America’s Most Carceral State
John Thompson was convicted of murder in Louisiana in 1985 and exonerated in 2003. When he walked free, he had survived 14 years on death row and seven execution dates. His story illuminates how difficult it is to hold prosecutors accountable for their misdeeds, and the need for new legislation that would provide concrete ways for the public to monitor and control prosecutorial discretion run amuck.
Just 30 days before Thompson’s seventh scheduled execution and his son’s high school graduation day, a defense investigator found the results of a blood test that pointed to another perpetrator buried in the police files. An assistant district attorney admitted that his colleague in the Orleans Parish district attorney’s office had hidden the blood test results in violation of the doctrine established by the 1963 U.S. Supreme Court case Brady v. Maryland, which requires prosecutors to disclose evidence that might be favorable to the defense. Without the Brady doctrine, defense attorneys have no way of knowing what evidence even exists in the state’s files. It is a rule intended to ensure that criminal trials reach just results.
Thompson successfully sued the Orleans Parish district attorney’s office for its failure to turn over evidence that was covered under Brady and won $14 million in damages at a jury trial. The prosecutor, Harry Connick Sr., the elected district attorney of Orleans Parish, admitted during the civil trial that the office had concealed material information under Brady.
But Thompson’s case was appealed all the way up to the Supreme Court, and in 2011 in a narrow 5–4 decision written by Justice Clarence Thomas, the court held that prosecutors had absolute immunity from lawsuits. It didn’t matter that the DA’s office admitted it had not trained its prosecutors on Brady requirements, that Louisiana courts had previously overturned cases from Connick’s office for failure to adhere to Brady, nor that working prosecutors under Connick’s supervision were happy to boast that they had not bothered to read about any developments in the law over the decades they spent in office. As a result of the decision Connick v. Thompson, prosecutors have enjoyed immunity for their errors, intentional or not. And, since then, there’s been a debate over how to hold prosecutors responsible for their misdeeds.
I met Thompson — JT to his friends –before he died last year, and he described the prosecutor’s acts as “attempted murder.” He spent the rest of his life striving to hold prosecutors accountable for the actions. His case has become one of the cautionary tales of the widespread abuse of prosecutorial discretion and the dangers of immunity.
Thompson’s case was not the only one where prosecutors who committed misconduct never suffered any consequences. Studies have found that prosecutorial misconduct is a leading cause of exonerations, including a report last week from the National Registry of Exonerations, which found that 84 out of 139 exonerations in 2017 were from police or prosecutorial misconduct. When I met Thompson, I also saw a room at his nonprofit Resurrection After Exoneration covered with the portraits of men who had been exonerated in Louisiana. There was, for example, Glenn Ford, convicted of murder in 1984 by a prosecutor who admittedly relied on junk science and ignored evidence pointing to other suspects to win, spent nearly 30 years on Angola’s death row, and was released in 2014, dying of late-stage lung cancer. He was never compensated for his time in prison.
And since then, there have been more people affected by prosecutorial misconduct. Consider Rodricus Crawford, a man who was sentenced to death after being prosecuted by the avowedly bloodthirsty prosecutor Dale Cox in Caddo Parish. Brady material showed that there wasn’t even a crime; Crawford’s child had died of pneumonia and sepsis, not suffocation, as Cox had argued. Rather than take some time to consider what the scientific evidence showed, Cox’s office rushed to judgment. That the defendant was a young Black man simply made it easier to railroad him in a county where there’s still a Confederate monument in front of the courthouse. It’s easy to say there’s a problem with criminal justice in Louisiana, but when you visit, it’s all you can see.
This legislative session, two bills aimed at prosecutorial accountability are being introduced in Louisiana. The first bill, known as the Prosecutorial Transparency Bill, establishes an oversight commission that would collect data from each district attorney’s office and make the information available to the public. The second, called the John Thompson Prosecutorial Accountability and Professional Standards Bill, would set up an 11-member commission with the power to investigate the acts of prosecutors, including calling witnesses, issuing subpoenas, and making findings of fact. The commission would also be able to issue reports and recommend impeachment proceedings against specific prosecutors for cause.
In a state with the highest incarceration rate and the second-highest exoneration rate per capita, it’s a welcome push by reformers who would like to see prosecutors held accountable for the actions. But for the elected Louisiana district attorneys, men who have long held power in the state and maintained it through considerable lobbying efforts, it’s an unwelcome encroachment on their impunity.
E. Pete Adams, the Executive Director of the Louisiana District Attorneys Association (LDAA), said over the phone that the initiatives were “not well thought out” and “blatantly unconstitutional.” “It sounds like someone is trying to make some kind of a point,” he added before telling me he “really didn’t have time” to talk about it.
Law professor and the author of Locked In, John Pfaff has lectured and tweeted diligently about the need for more data to explain why incarceration has gone up even as crime has gone down. Pfaff wants to bring rigor to prosecutorial discretion, which, in the words of Samantha Bee, allows them to “do basically whatever the f*ck they want!” And, through lobbying efforts in state capitals across the country, prosecutors strive as a whole to consolidate their power and keep their discretions as broad and sweeping as they can.
But the past year has seen reform-minded prosecutors win elections in other districts, bringing with them a popular push to move toward some kind of transparency. This year, some prosecutors initiated procedures to track basic data like plea bargains and charging patterns. While these measures seem simple, they have previously been elusive, and many DAs have fought to keep the information secret. For example, Kim Foxx in Chicago has agreed to make public six years of felony prosecution data. And in Florida, State Attorney Melissa Nelson, who ousted Angela Corey in 2016, is working with academics and nonprofits to assemble meaningful data to track prosecutions with the goal of improving the office’s policies.
The reforms in Louisiana would mimic some of these same efforts. It’s actually a conservative move and one the prosecutors should welcome as a way to insulate themselves against concerns of systemic racism and waste. They might even learn from the data and try to make their offices run more efficiently, thereby reducing the massive costs the Louisiana prison system imposes on taxpayers.
These efforts are admirable and will hopefully do some good, but what about the wrongs committed in the past, the prosecutors who imprisoned the men I saw framed on Thompson’s wall?
Voices of the Experienced (VOTE), the primary organization behind the second bill, which creates a commission to investigate misconduct, says that the board is necessary in order to “give teeth” to the requirement that prosecutors are accountable to the public. “It’s an idea whose time has come,” Will Harrell, the senior public policy counsel of VOTE, told me over the phone. The accountability board’s composition is specifically to include lawyers and non-lawyers as well as people who have been recently incarcerated in order to emphasize the importance of lived experience and the voices of people like Thompson in addition to legal experts.
The legislation is intended to fill a gaping void that is especially noticeable in Louisiana. There are limited ways in which prosecutors can be held accountable. After the Supreme Court ruling in Thompson’s case, prosecutors have enjoyed immunity from the sorts of civil lawsuits that are filed against the police, even in cases where prosecutors deliberately withhold information or falsify evidence or testimony.
Justice Thomas and the other justices who voted against Thompson envisioned that the state bar, which is empowered to investigate and punish attorneys for violating ethical standard, would pick up the slack and deter misconduct. But, in fact, they have largely been unable to enforce any rules against district attorneys. First, in some states, only clients can file complaints about their lawyer, usually for lapses like overbilling. This prevents any individual from filing against a prosecutor because the prosecutor’s client is “the state.” And, as a Yale Law Journal piece states, most people who can report prosecutorial misconduct simply don’t.
Even when they do, there’s often no result. Ben Cohen, a NOLA defense attorney with The Promise of Justice Initiative, filed one such bar complaint with the Louisiana Attorney Disciplinary Board against the prosecutor’s office in the case of Jamaal Tucker, who was charged with second-degree murder by Leon Cannizzaro’s office, the current elected district attorney of Orleans Parish who has, of late, been under attack for using fake subpoenas and jailing victims. In this case, two men — Morris Greene and Joseph Allen — testified against Tucker, who was sentenced to life in prison at a third trial, after two mistrials. Cohen later learned that both witnesses has received lighter sentences for their testimony and one of them demanded Crime Stopper money as a reward for testifying.
A judge ordered Cannizzaro and the prosecutor who tried Tucker, Eusi Phillips, to explain themselves and, rather than doing so, Cannizzaro dismissed charges against Tucker. So, Tucker went free, but no prosecutor was punished. Cohen’s bar complaint has thus far not generated any results. In response, Cannizzaro wrote a letter to the editor of the Times-Picayune saying that his office has “railroaded no one.”
State complaint boards similarly lack teeth. In Tennessee, Shelby County (Memphis) prosecutor Amy Weirich was brought before the state disciplinary board for her misconduct in the murder trial of Noura Jackson. In a rare opinion, the Tennessee Supreme Court recited numerous instances of misconduct. Yet, Weirich was given a private reprimand, and there was no further action taken.
In Louisiana, Thompson’s story stands a reminder that reform is desperately needed. Louisiana has the second-most wrongful convictions per capita and the highest prison rate. A recent lawsuit filed in the Eastern District of Louisiana by Robert Jones, another man wrongly imprisoned by New Orleans prosecutors, cites at least 45 cases where evidence was concealed from the defense. Nine were overturned by appellate courts. In an exceptionally punitive state system, the grossly disproportionate punishment of Black people stands out, as does the overuse of the death penalty and harsh sentences, like long prison terms or life without parole. Thompson died without ever seeing the kind of accountability he dreamed about. This bill provides a chance that others in Louisiana might.
