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A USA TODAY investigation:

Misconduct at the Justice Department

Prosecuting offices' immunity tested

Updated 10h 59m ago | Comments 282 | Recommend
Enlarge By Jennifer S. Altman for USA
TODAY
John Thompson was sentenced to death for a 1984
killing. A month before his scheduled execution, an
investigator found a police lab report that upended
the case. The New Orleans district attorney's office
had the evidence during Thompson's trial but never
disclosed it.
56 E-mail | Save | Print | Reprints & Permissions |
By Brad Heath and Kevin McCoy,
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USA TODAY
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WASHINGTON — Americans can sue
almost anyone for almost anything. Add to Mixx
But they can't sue prosecutors.
Facebook
Not when prosecutors hide evidence
that could prove someone's Twitter
innocence. Not when they violate
basic rules designed to make sure More
trials are fair. Not even when those Subscribe
abuses put innocent people in prison.
myYahoo
Nearly 35 years ago, the U.S.
Supreme Court ruled that prosecutors iGoogle
cannot face civil lawsuits over how
More
they handle criminal cases in court, no
matter how serious or obvious the abuses. Since then,
courts have further limited the circumstances under which
prosecutors — or their bosses — can be sued for civil
rights violations.

Today, in a case involving a New Orleans man who

came within a month of being executed for a murder he
didn't commit, the Supreme Court is scheduled to
consider another aspect of prosecutorial immunity:
whether people who were wrongly convicted can take
local prosecutors' offices to court. The court's answer
could determine the extent to which prosecutors'
employers are also shielded if they fail to make sure
attorneys comply with their constitutional responsibilities.

"Prosecutorial misconduct is a serious problem, and

Enlarge 1995 photo by Burt Steel
Former New Orleans District Attorney Harry
Connick Sr. and his office were sued for failing to
train the prosecutors who covered up evidence.
nothing is being done to adequately address it," said
Kathleen Ridolfi, director of the Northern California
Innocence Project, which released a study Monday that
found hundreds of instances of misconduct by state and
federal attorneys. "Prosecutors know. .. they can commit
misconduct with impunity."
IMMUNITY: Cases in which prosecutors were immune
from civil suits
EXPLORE CASES: Investigate the misconduct cases we
ID'd
JUSTICE IN BALANCE: Prosecutors' conduct can tip the
scales
FULL COVERAGE: Federal prosecutors series

A USA TODAY investigation documented 201 cases

"The importance of since 1997 in which judges determined that federal
(Thompson's) case is prosecutors had violated laws or ethics rules. Although
prosecutorial accountability
-- whether or not violations those cases represent a small fraction of the tens of
of constitutional rights thousands that are filed in the nation's federal courts
make a difference, or every year, judges found that the violations were so
whether the prosecutor serious that they overturned convictions or rebuked the
can just walk away without
any accountability, any prosecutors for misconduct. Some of the abuses put
liability, any punishment for breaking the law." innocent people in jail.

Not one resulted in a successful lawsuit against a

-Bennett Gershman, prosecutor.
Pace University law professor
The latest test of the extent of prosecutors' immunity
began with a December 1984 murder and a separate
carjacking three weeks later in New Orleans. John
Thompson was convicted of both crimes and sentenced
to die for the murder. A month before his execution date,
his lawyers discovered that prosecutors had deliberately
covered up a police lab report that showed he could not
have committed the carjacking. Then they uncovered still
more evidence that undermined his murder conviction.

Thompson was freed in 2003. He sued New Orleans

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District Attorney Harry Connick Sr. and his office for

Enlarge
John Thompson is escorted through the Criminal
Courts building in New Orleans in May 1999. He
had been scheduled for execution for the day
before his son was to graduate from high school
that year. In 2003 -- after 18 years in prison, 14
of them on death row -- Thompson walked out of
Lousiana's Angola penitentiary a free man.
failing to train the prosecutors who covered up that
evidence. Four years after Thompson got out of prison, a
jury awarded him $14 million; now the Supreme Court
must decide whether he can keep it.
"The importance of (Thompson's) case is prosecutorial
accountability — whether or not violations of
constitutional rights make a difference, or whether the
prosecutors can just walk away without any
accountability, any liability, any punishment, for breaking
the law," said Pace University law professor Bennett
Gershman, an expert on misconduct by prosecutors.

In 1976, the Supreme Court decided, in a case called

Imbler v. Pachtman, that prosecutors have absolute immunity from civil rights lawsuits for their work in the
courtroom. The court acknowledged that its ruling "does leave the genuinely wronged defendant without
civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty," but said the
alternative was worse: leaving prosecutors to fear a lawsuit, or even bankruptcy, every time they lose a
trial.

Without immunity, prosecutors "would be gun-shy" about taking on difficult cases, former U.S. attorney
general John Ashcroft said.

The Supreme Court has said that, instead of being sued, prosecutors who break the rules could be kicked
out of the legal profession or even charged with a crime. Those outcomes are rare. Although USA
TODAY's investigation documented misconduct in 201 cases, it did not find a single federal prosecutor who
was disbarred. Only one, Richard Convertino, was prosecuted. He was acquitted.

"Short of pointing a gun at a prisoner and pulling the trigger, the prosecutor can get away with just about
anything," said Patrick Regan, an attorney for two Washington, D.C., men who spent decades in prison
before a court overturned their convictions because prosecutors never turned over evidence that pointed to
other suspects. The men sued, but a court ruled the prosecutors had immunity and threw out their case.

John Thompson was a 22-year-old high school dropout and self-described "small-time weed dealer" when
he was arrested in 1985 for the slaying of a New Orleans businessman. Days later, prosecutors also
charged that he was responsible for an armed carjacking of three teenagers outside the Superdome.

Thompson went on trial twice. Prosecutors tried Thompson for the carjacking first, and a jury convicted him.
That set the stage for his murder trial several weeks later: Thompson decided not to testify because doing
so would have opened the door for prosecutors to tell the jury that he had just been convicted of
thecarjacking. The jury found him guilty. When it was time to decide his punishment, jurors did hear about
the carjacking, his first felony conviction, which enabled prosecutors to seek the death penalty. Jurors
sentenced him to death.

Authorities scheduled Thompson's execution for the day before his son was to graduate from high school in
1999. Two Philadelphia corporate attorneys, Michael Banks and Gordon Cooney, had by then had taken
on his case.

A month before his execution, an investigator working for them found a copy of a police lab report that
upended the case. The report, based on blood found on the clothing of one of the carjacking victims,
showed conclusively that Thompson had not committed that crime; the sample was blood type B, and
Thompson's blood was type O.

That was enough for a court to throw out Thompson's carjacking conviction, and to overturn his death
sentence. And it led to a series of discoveries — including inconsistent witness statements — that
ultimately undermined Thompson's murder conviction as well. The district attorney's office in New Orleans
had all that evidence when Thompson went on trial, but never disclosed it to his lawyers, as the law
requires.

"It was a crazy, crazy feeling that you could be killed for something you didn't do," Thompson said last
week.

He was retried in the murder case and acquitted. In 2003 — after 18 years in prison, 14 of them on death
row — Thompson walked out of Louisiana's Angola penitentiary a free man.

Conduct 'grossly illegal'

Almost no one defends the way New Orleans prosecutors handled his case. Graymond Martin, now second
in command of the district attorney's office, said the prosecutor who hid the lab report, Gerald Deegan,
"violated every moral, ethical and legal obligation that he had," and said the violation was "grossly illegal."
Deegan, who died before the defense attorneys learned of the lab report, had admitted to another lawyer
what he'd done.

Kyle Duncan, the chief of appeals for Louisiana's attorney general, said it's "unquestionable that the
prosecutors on his case did do wrong."

It's also unquestionable that Thompson can never sue the individual prosecutors for what they did during
his trial. Two prosecutors who worked on his case still practice law but are immune from lawsuits.

Instead, Thompson sued the district attorney's office itself. His lawyers alleged that the office — which was
run at the time of his trial by Connick, father of singer Harry Connick Jr. — didn't train its attorneys about
their legal obligation to turn over evidence that could help defendants prove their innocence. As a result,
Thompson's lawyers argued, prosecutors didn't know what evidence they had to share, and, in Thompson's
case, kept it secret. A federal jury agreed.

That's when the real battle began. Prosecutors in Louisiana insist that unless the Supreme Court throws
out the jury's verdict, prosecutors' offices will have to worry about civil lawsuits every time one of their
attorneys makes a mistake, a prospect that could leave them reluctant to bring tough cases.

In a series of rulings, the Supreme Court has said that prosecutors — unlike police officers and most other
government employees — can face civil rights lawsuits only under narrow circumstances. They can be
sued when misconduct happens during an investigation but not in court proceedings. And the justices have

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suggested that prosecutors' offices — like other local governmentagencies — can be liable for not training
their employees.

"We can't sue the prosecutor, but we can sue the FBI agent. That's absurd," said Ben Gonek, an attorney
for Kamil Koubriti, one of the men Convertino prosecuted in the nation's first major terrorism case after
September 11. The Justice Department dismissed the terrorism charges when it concluded that Convertino
had concealed evidence. Nonetheless, courts ruled that Koubriti could not sue Convertino; the Supreme
Court on Monday declined to hear the case.

The Supreme Court is scheduled to hear arguments in Thompson's case this morning; a decision is
expected before the court adjourns next June.

After he was freed, Thompson opened a non-profit group in New Orleans to help others who were wrongly
convicted readjust to society. Some of the men who have come through his door spent decades in prison.
He helps them find housing and work.

In 2005, Louisiana set aside a pool of money for people who were wrongly convicted. The payments are
capped at $150,000. Thompson's attorney Banks said Louisiana officials fought Thompson's claim for four
years before finally sending him a check in September.

Questions of training

For years, some judges have faulted the Justice Department for doing too little to train and supervise its
prosecutors. Last year, for example, the chief federal judge in Massachusetts became so frustrated with
continuing violations of defendants' rights that he set up a training program for prosecutors and defense
attorneys there.

The move by U.S. District Judge Mark Wolf came after prosecutors failed to turn over evidence that
defense lawyers could have used to challenge a police officer's testimony in a routine gun possession
case. Wolf berated officials from the U.S. attorney's office in Boston for "a dismal history of violations" that
have a "powerful impact on individuals entitled to due process and a cancerous effect on the administration
of justice."

The Justice Department has recently overhauled its own training program, in response to the collapse of its
corruption case against former Alaska senator Ted Stevens; prosecutors had wrongly concealed evidence
about the government's star witness. As a result, every federal prosecutor must now get regular training
about his or her duty to turn over evidence to defendants.

The Justice Department has not taken a position on Thompson's case. The federal government cannot be
sued for failing to train its employees the way local governments can be.

Still, a group of former Justice Department officials has urged the Supreme Court to uphold the jury's $14
million verdict. In a brief by former solicitor general Paul Clement, they noted that "prosecutors face no
threat of legal consequences for depriving criminal defendants of their rights" in cases where they have
concealed evidence. Unless their offices face some form of liability, Clement said, "the question really does
become whether there's any deterrent for a violation."

Absolute immunity shields prosecutors from lawsuits

A sampling of cases in which federal courts ruled that prosecutors were immune from civil suits though they
had violated the rights of defendants or committed other transgressions:

Case: U.S. v. Wilson

Former CIA officer Edwin P. Wilson spent 20 years in prison for

smuggling tons of plastic explosives to Libya. At his 1983 trial, Wilson said
he was still working for the CIA when the shipments were made. The
government said that the CIA had no contacts with him at the time. Wilson
sought to vacate his conviction after his lawyers learned that CIA officials
and the prosecutors had misled the court and that, in fact, there were more
than 80 contacts between Wilson and the CIA.
Outcome: In 2003, a federal judge threw out Wilson's conviction and
blasted both the CIA and the Justice Department, writing that "in the
course of American justice, one would have to work hard to conceive of a
more fundamentally unfair process. .. than the fabrication of false data by
the government, under oath by a government official, presented knowingly
by the prosecutor in the courtroom with express approval of his superiors
in Washington." Wilson was released from prison in 2004 and now, at 82,
rents a room from his brother in Seattle. "Even McDonald's wouldn't hire
me," he said. He tried to sue the government, but the suit was dismissed
because of the prosecutors' immunity. "I lost my family, lost my property.
But more important, I lost my good name," Wilson said.

Case: U.S. v. Eastridge

Defendants Joseph Wayne Eastridge and Joseph Sousa, both members

of a white motorcycle gang, were convicted in the 1974 slaying of a black
man outside a Washington, D.C., bar. Eastridge served 29 years in prison,
Sousa 20 years. In 2005, a U.S. District Court threw out their convictions,
in part because prosecutors had failed to turn over evidence that could
have implicated other men in the crime.
Outcome: The federal court ultimately exonerated both Eastridge and

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Sousa, saying: "Based on the full record, no reasonable juror would now
find petitioners guilty beyond a reasonable doubt. The court finds that this
is the rare case in which petitioners can prove their 'actual innocence' of
the crime as well as violations of their constitutional rights." They sued the
prosecutors, but a court threw out their lawsuit because of the prosecutors'
absolute immunity. The only legal avenue left open is a pending U.S. Court
of Federal Claims lawsuit against the government. Filed in January, the
lawsuit seeks payment under a statute enacted by Congress 10 years ago
to compensate those who were wrongly imprisoned. The law pays up to
$50,000 per year of imprisonment. The case is scheduled for trial in
January 2011.

Case: U.S. v. Sterba

James Sterba, a bus driver, was charged with soliciting a minor online for
a sexual encounter. A U.S. District Court in Florida dismissed the charges
against him because prosecutor Karen Schmid Cox allowed a government
informant to lie about her identity in court, concealng her criminal history.
Defense attorneys discovered that the informant, who had pretended to be
a 13-year-old girl online, had been convicted earlier of filing a false police
report and making false statements in court. The trial judge said the
informant had "severe credibility problems" and that Cox "wanted the
defense to know none of this."
Outcome: Sterba attempted to sue Cox and others for violating his rights,
but the district court dismissed the case against her, finding she was
protected by absolute immunity. The U.S. Court of Appeals for the 11th
Circuit upheld the lower court. In 2001, the Florida Supreme Court ordered
that Cox's law license be suspended for a year because of misconduct.
Cox now works for a law firm in Florida.

Case: U.S. v. Koubriti

The Justice Department in 2004 asked a U.S. District Court in Michigan to

dismiss terrorism charges against Karim Koubriti and other defendants
who had been convicted in the nation's first terrorism case after 9/11. The
court did so, ruling that "at critical junctures and on critical issues" the
prosecution failed to turn over to the defense evidence that pointed to the
defendants' innocence. "The prosecution materially misled the court, the
jury and the defense as to the nature, character and complexion of critical
evidence."
Outcome: The chief prosecutor,Richard Convertino, was indicted in 2006
for concealing evidence and allowing witnesses to lie. A jury acquitted
Convertino, who remains a member in good standing of the Michigan bar.
Koubriti attempted to sue Convertino over the misconduct, but the U.S.
Court of Appeals ruled in February 2010 that the prosecutor was protected
by absolute immunity. On Monday, the U.S. Supreme Court declined to
consider the case.

Source: USA TODAY research

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Comments: (282) Showing: Newest first New: Most recommended!

NJEddd (0 friends, send message) wrote: 4h 35m ago

GoldDust (0 friends, send message) wrote: 4h 7m ago
darko714 (94 friends, send message) wrote:33m ago
They COULD mention Daniel Nifong and that whole shameful mess with the hooker falsely
accusing the Duke LaCross team of rape, but NOOOOO! That would run counter to the leftist
narrative in which only blacks can be victims and only whites can be responsible.
---------
Well actually that turned out to be a win for the left. Remember conservatives are the ones
who tend to be law an order fanatics. Add to that its the ACLU that fights for individual rights
in cases like this and the ACLU is hated by conservatives. Forget the spin, this is one that you
guys own.
-----------
Wrong. The ACLU was nowhere to be found when needed by the Duke boys. The ACLU
"fights for individual rights" only when the individual meets the liberal plantation's definition of
a "victim". The Duke boys weren't poor enough, black enough, gay enough, nor female
enough, to get the ACLU's support. Instead they chimed in to support the hooker, even when
it was obvious she was lying. The ACLU, like all leftists, can't see people as individuals-
everyone is a member of a group. And this group identity is all that determines guilt or
innocence (not the actual acts of the people involved).
--------------
GoldDust is also way off-base in the response to darko714: "There is no law that says
Congress can't stimulate the economy." Try this; "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people." The 10th amendment - it may not be getting enforced, but it
does, in fact, exist.

AND: FDR's spending programs did NOT "cure" the depression- it took World War 2 to do that.
I doubt you can find ANY economic text that would argue otherwise. Further, Reagan did not
use debt to cure the recession of the early eighties - he used lower marginal tax rates
("supply-side economics") instead. The Reagan recovery didn't happen because of
congresses increased spending, it happened despite that spending. In fact, the bulk of the
spending increases did not preceed the recovery, they followed it. Even a country cannot
spend its way to prosperity.

I don't see how you can say "... conservative economics creates a recession or even
depression every time its tried" without laughing. It should be obvious that the exact opposite
case is true. If you don't believe me, call up the economists advising the USSR and ask them.
What exactly would be the definition of "liberal economics"? Is it using the power of the
government to be sure there are no wealthy? Maybe it's a program designed to distribute the
benefits of prosperity equally among the people, without regard to their role in actually
bringing about that prosperity?

Recommend | Report Abuse

Retired Blue (0 friends, send message) wrote: 4h 46m ago

Paraphrasing an old adage I would ask; does absolute immunity corrupt absolutely? Having
worked with and around prosecutors and defense attorneys, as well as spending hundreds of
days in court rooms over the last three decades, my answer is; not absolutely.

The majority of attorneys at both tables in the courtroom are well educated, highly skilled,
professional men and women of unquestionable integrity.

Having said that; every organization or profession has its bad apples. Citizens are required to
reasonably comply with the law. There are consequences if we don’t. Law enforcement
officers, from Mayberry to Federal officers at the top of the food chain, must comply with even
more stringent laws and rules. If they don’t, consequences can be severe. No one hates a
bad cop more than rank and file cops with personal integrity and a sense of honor. When a
bad cop goes down, the landing is usually quite harsh. These are good things. Without
reasonable laws that citizens must comply with and well trained/disciplined law enforcement
officers to reasonably enforce those laws, the result is anarchy, dictatorship, or factionalism.

A defense attorney has no immunity if he or she violates the law while preparing and
presenting a defense. That is also a good thing.

A prosecutor has absolute immunity when prosecuting a case. This is not a good thing. It
minimizes our collective expectation of fairness and justice and morphs it into a win-loose

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game. “Can I win” becomes the focus, and a high win ratio certainly looks good on a resume’.
Absolute immunity for prosecutors allows bad apples to seed, grow and flourish, choking out
justice for anyone unfortunate enough to fall under its rank shadow.

There is a good argument for conditional immunity, but no supportable rationale for absolute
immunity. Immunity for error, negligence and perhaps even gross negligence would provide
prosecutors reasonable protection from abusive lawsuits but there is no reason under the sun
for granting prosecutorial immunity when one knowingly, intentionally or otherwise commits an
act so outrageous that it “shocks the conscience,” (Eighth amendment cruel and unusual
standard), of the court and reasonable people as well.

Intentionally withholding mitigating evidence in order to score another “win,” regardless of the
permanent damage inflicted on an innocent person is unconscionable. Just like the bad cop,
prosecuting attorneys at any level who engage in such acts should be held accountable and
have a very hard landing.

For some unfortunate U.S. citizens, unless the playing field is leveled at every corner, Justitia,
(Lady Justice), is not blindfolded but rather; for the unfortunates she is gagged and bound.

Note: Justitia is non-partisan

Recommend 1 | Report Abuse

GoldDust (0 friends, send message) wrote: 9h 17m ago

darko714 (94 friends, send message) wrote:33m ago
They COULD mention Daniel Nifong and that whole shameful mess with the hooker falsely
accusing the Duke LaCross team of rape, but NOOOOO! That would run counter to the leftist
narrative in which only blacks can be victims and only whites can be responsible.
---------
Well actually that turned out to be a win for the left. Remember conservatives are the ones
who tend to be law an order fanatics. Add to that its the ACLU that fights for individual rights
in cases like this and the ACLU is hated by conservatives. Forget the spin, this is one that you
guys own.

Recommend | Report Abuse

GoldDust (0 friends, send message) wrote: 9h 20m ago

darko714 (94 friends, send message) wrote:42m ago
If you could sue prosecutors, or any government employee personally for actions within the
scope of employment, every taxpayer in America would have an $800 billion lawsuit against
President Obama and the Democrat members of Congress for the "Stimulus" fraud.
----------
Well actually no you wouldn't. There is no law that says Congress can't stimulate the
economy. The fact that both FDR and Ronald Reagan used massive deficits to cure the two
worst recessions of the 20th century actually establishes a precedent for deficit spending.
However you might have a point in that conservative economics creates a recession or even
depression every time its tried. We wouldn't want to see all those Republicans getting locked
up. Our jails and prisons are crowded enough as it is.

Recommend 3 | Report Abuse

janeqpublicca (32 friends, send message) wrote: 9h 22m ago

I somewhat understand limits on individual/personal immunity - but the employing office and
the supervising DA must be held accountable and liable.

If a prosecutor commits sexual harrassment, the supervisor and the entity are automatically
liable if the employee wasn't trained - why not the same standard here....when far much more
is at stake.

Recommend 1 | Report Abuse

angry.veteran (223 friends, send message) wrote: 9h 27m ago

Teddy-o (0 friends, send message) wrote: 29m ago
How about the juries--they are the people who made the wrong decisions.
---------------------------

When evidence is withheld, juries are blindfolded.

Recommend 2 | Report Abuse

angry.veteran (223 friends, send message) wrote: 9h 28m ago

darko714 (94 friends, send message) wrote: 8m ago
They COULD mention Daniel Nifong and that whole shameful mess with the hooker falsely
accusing the Duke LaCross team of rape, but NOOOOO! That would run counter to the leftist
narrative in which only blacks can be victims and only whites can be responsible.
--------------------------

Actually, I am glad you brought this case up. It helps show it's in everyone's interest to hold
prosecutors responsible - it's not just a race or class thing.

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Several years ago there was a San Diego case of a non-commissioned officer falsely accused
of raping a girl, whom I recall was under 12. The case went on and on with him pursued as
suspect until it was finally decided - many months after evidence had been offered - that the
rapist had been someone else.

So there are two non-white examples, yours and mine. Thank you for your help.

Recommend | Report Abuse

Jaydeez (25 friends, send message) wrote: 9h 33m ago

Who's at fault? We are.

We create the environment for prosecutors to hurry their cases and focus on convections
rather than justice. After all, while defense lawyers end up in private firms or work pro-bono,
prosecutors most likely apply for political positions. How would a resume for a potential
political appointee look to the voting public if he/she were a former prosecutor and didn't
convict many "criminals", but hey "they were really thorough in their prosecution though".

We demand "swift justice" don't we? And any prosecutor that doesn't "prosecute" is, as we the
public mob like to put it, "weak on crime". And any defense lawyer is just a patsy bleeding-
heart liberal sellout anyway, right?

Recommend 3 | Report Abuse

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