Time to Confess Error on the Death Penalty

Yesterday at the Supreme Court, a New Orleans prosecutor defended the conviction of a man despite the admitted failure of her office to turn over evidence they were required to provide to his defense team. This fraudulently obtained conviction was then used to help send Juan Smith to death row. The prosecutorial misconduct was so severe — and the shameful history of New Orleans prosecutors so blatant — that Supreme Court Justice Elena Kagan asked the hapless prosecutor: “Did your office ever consider just confessing error in this case?”

That’s a pretty bad question for a lawyer to hear. Maybe the worst, in these circumstances. But I’ve heard a more brutal question, from my clients on death row when they receive a warrant of execution: “How should I tell my children that I will be executed next month?”

Last Thursday, at the launch of a speaking tour addressing the need for prosecutorial accountability, sponsored by the Innocence Project and coordinated with ACLU affiliates across the country, former death row inmate John Thompson talked about the moment he had that discussion with his lawyers. It was 1999 and his execution was only weeks away. “Can we help break the news?” they asked him. His younger son was set to graduate from high school the day after the execution.

As Barry Scheck, co-Director of the Innocence Project, noted in his keynote speech, it was prosecutorial misconduct — not eyewitness fallibility, not false confession, but deliberate bad acts by the prosecuting attorneys — that wrongly put Thompson on death row. And prosecutorial misdeeds have led to a number of the wrongful convictions ultimately reversed through the work of the Innocence Project.

At the moment Thompson’s Philadelphia lawyers were having the discussion that no law school prepares you for, an investigator in New Orleans was looking at a report revealing the blood type found on a pair of blue jeans at the crime scene, which had been hidden from Thompson’s attorneys for 14 years. The report excluded Thompson as the perpetrator. But, to insure the exonerating evidence didn’t surface, an assistant district attorney had taken the jeans from the police evidence locker and thrown them away.

Thompson was ultimately exonerated, freed and awarded $14 million by a jury in compensation. Then, in what has been called “one of the meanest Supreme Court decisions ever,” the $14 million award was overturned. We don’t yet know what will happen in Smith’s case, although indications from yesterday’s oral argument are unusually strong that justice will prevail.

Juan Smith and John Thompson are not the only death row defendants whose convictions and sentences were tainted by prosecutorial misconduct. In fact, it was likely the history of bad behavior by New Orleans prosecutors that got the Smith case in front of the high court yesterday.

Cases like this underscore the importance of the Innocence Project speaking tour, which is far more than a recitation of the awful circumstances that kept Thompson in prison for 18 years for a crime he did not commit. If last week’s event at Loyola Law School is any indication, the tour will spur in-depth academic discussions about civil rights law, monetary damages, immunity for prosecutors and the likelihood of disciplinary action against prosecutors who hide evidence and permit false testimony. Throughout the tour, solutions will be proposed that will deserve careful consideration.

I was asked to speak last Thursday about the defense lawyer’s perspective, how the human cost of this work affects the team and the client. But sitting in that room with John Thompson — the man we call JT, the man I first met on death row in 1989, the innocent man who almost died at the hands of the state — I had only one suggestion: abolish the death penalty.

Check back here for updates on the tour and more discussion about prosecutorial misconduct. And in the meantime, take action now to end the death penalty in your state.

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