- The Washington Times - Wednesday, October 6, 2010

An attorney for a man only a month away from being executed for a murder he didn’t commit had a difficult time explaining Wednesday before the Supreme Court what additional training prosecutors should have received to have prevented the injustice.

The issue is of no small matter as the justices determine whether to let stand a $14 million judgment for former inmate John Thompson on the basis that the New Orleans district attorney, Harry F. Connick Sr., was “deliberately indifferent” to whether his prosecutors received proper training regarding evidence they were required to provide to the defense.

At root, the case questions how corrupt prosecutors should be held accountable. But if Wednesday’s argument was any indicator, the Supreme Court may rule that lawsuits based on training issues are not the answer to that question.

“Could you please state in simple terms to me what exactly they failed to train these prosecutors to do, that the prosecutors didn’t do?” Justice Sonia Sotomayor asked J. Gordon Cooney Jr., an attorney for Mr. Thompson. “What specifically would the training have said or done that would have avoided this violation?”

Several other justices asked or alluded to the same question, which was never clearly answered.

Mr. Cooney did say that if he were a prosecutor conducting such training he would not have started with Mr. Connick’s rule, which he said was “turn over what the law required and nothing more.”

“Why wouldn’t you start with that rule?” Justice Antonin Scalia said. “The rule is perfectly lawful, my goodness.”

Mr. Cooney said at another point that taken in the worst light, Mr. Connick’s office provided no training about what evidence must be provided to the defense.

“So what would have been enough?” Justice Elena Kagan asked. “I mean, is an hour a year enough? Is an hour a month enough?”

“I think that would have been dependent on what its content was, your honor, and the other circumstances of the office,” Mr. Cooney said.

The justices also stressed that if the failure to turn over the evidence was the result of intentional misconduct, or even an accidental oversight, a lack of training would not be to blame.

Mr. Thompson’s case stems from his 1984 arrest in the shooting death of a New Orleans businessman. He also was charged with trying to rob three siblings near the New Orleans Superdome. The siblings came forward and identified Mr. Thompson as their attacker after seeing media reports about his arrest in the businessman’s death.

According to court records, prosecutors sought to gain a tactical advantage by prosecuting the robbery first. The strategy was successful: Mr. Thompson was convicted, preventing him from testifying at his murder trial three weeks later because the prosecution could have used his testimony to introduce evidence of the robbery conviction. That detail might have helped turn the jury against him.

Without his testimony, the jury convicted Mr. Thompson of murder.

Court records show that prosecutors argued that because Mr. Thompson already had been sentenced to nearly 50 years in prison for the robbery conviction, the only way to truly punish him for the murder would be to impose the death penalty.

The jury did so, unaware that prosecutors had withheld evidence proving Mr. Thompson could not have committed the robbery. The blood evidence found on the pant leg of one of the robbery victims came from the perpetrator and was of a different blood type than Mr. Thompson’s. That evidence remained a secret until Mr. Thompson’s attorneys discovered it mere weeks before his 1999 execution date.

It later was revealed that one of the prosecutors, while dying of cancer, told another prosecutor about the evidence that would have exonerated Mr. Thompson, but the second prosecutor told no one.

As a result of the revelation about the blood evidence, Mr. Thompson’s robbery conviction was thrown out. Mr. Thompson testified at a 2003 retrial on the murder charge and was acquitted. He subsequently sued and won the $14 million judgment.

Attorneys for Mr. Connick, who served as district attorney for nearly 30 years and is the father of entertainer Harry F. Connick Jr., appealed the judgment, which had been upheld by an appeals court, to the Supreme Court.

• Ben Conery can be reached at bconery@washingtontimes.com.

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