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Fifth Circuit Upholds $14 Million Award Against Louisiana DA’s Office in Wrongful Conviction Suit; Affirmed by En Banc Ruling
by Matt Clarke
On December 19, 2008, the Fifth Circuit Court of Appeals upheld a federal jury award of $14 million in a case involving the wrongful conviction of a Louisiana man for attempted armed robbery and first-degree murder, in which the prosecutors withheld an exculpatory blood test report and other evidence. That decision was narrowly affirmed in an en banc ruling by the Fifth Circuit in April 2009.
John Thompson spent eighteen years in prison, including fourteen on Louisiana’s death row, after he was convicted of separate charges of attempted armed robbery and capital murder for crimes he did not commit. To achieve the convictions, the prosecutors manipulated the legal system and withheld evidence.
After being exonerated or acquitted in both cases, Thompson filed a civil rights suit pursuant to 42 U.S.C. § 1983 in U.S. District Court against the Orleans Parish District Attorney (DA) and individual assistant district attorneys for violating his rights by withholding exculpatory evidence. A jury found that while the violation was not the result of an official policy by the DA’s office of suppressing exculpatory evidence, it was deliberate indifference for the DA not to have established “policies and practices to protect one accused of a crime from these constitutional violations.”
Thompson and Kelvin Freeman were arrested for the capital murder of robbery victim Raymond T. Liuzza, Jr., who was shot five times on December 6, 1984. Victims who fought off an armed robber about two weeks after Liuzza’s murder saw Thompson’s picture in the newspaper and told police he was their assailant. During that attempted armed robbery some of the robber’s blood ended up on one of the victim’s pants, and the police took a cloth swatch of the pants for evidence. Thompson was also found with the gun used in Liuzza’s murder as well as Liuzza’s gold ring – items he said he obtained through trade as part of his drug dealing activities.
The prosecutor decided to try the attempted armed robbery case first because he believed that a conviction in that case would prevent Thompson from testifying at the subsequent capital murder trial, which would make it easier to convince the jury to give him the death penalty. Shortly before trial a blood test was run on the cloth swatch, which showed it to be type B. Several prosecutors and the DA were aware of the test results but no one told the defense attorneys representing Thompson. Additionally, one prosecutor intentionally withheld the cloth swatch from the defense by removing it from the forensic evidence file; he confessed his actions to another assistant DA after being diagnosed with terminal cancer in 1994.
Thompson was first convicted of attempted armed robbery, and later convicted of capital murder in a separate trial. As intended, the first conviction prevented him from testifying at the capital murder trial; had he testified, the jury in that trial would have learned about the robbery conviction, which would have hurt his defense. Freeman cut a deal with prosecutors and received a five-year sentence in exchange for testifying against Thompson. Freeman was later shot to death by a security guard in 1995.
Thompson spent 14 years on death row and was within weeks of execution, which his lawyers told him could not be prevented, when a defense investigator came across a copy of the blood test results in a microfiche file. Thompson’s blood type was type O. The execution was stayed and an investigation ensued which revealed the prosecutor’s 1994 confession that he had withheld evidence. Other exculpatory evidence that had not been turned over to the defense was discovered in both the armed robbery and murder cases, including eyewitness descriptions of the murderer that did not match Thompson and the fact that an acquaintance of Thompson had received a monetary reward for identifying him as Liuzza’s killer.
The DA moved to vacate the armed robbery conviction and did not retry that case. A grand jury began an investigation into the suppression of the blood type evidence, but the investigation was dismissed by the DA’s office. A state appeals court held that the unconstitutional suppression of evidence in the attempted armed robbery case had contributed to Thompson’s conviction in the capital murder case, and overturned that conviction.
The DA retried the murder case in 2003, and the jury acquitted Thompson after just 35 minutes of deliberation. Thompson then filed his federal civil rights lawsuit; he was awarded $14 million following a jury trial in February 2007. [See: PLN, Oct. 2007, p.22]. The defendants appealed.
The Fifth Circuit held that liability had been proven on the basis of the DA’s failure to train, monitor and supervise prosecutors regarding their duty to share exculpatory evidence with the defense. The statute of limitations did not begin to run until the capital murder case was overturned, because the suppression of the blood type evidence in the attempted armed robbery case called the validity of the capital murder conviction into question. Thus, the appellate court found Thompson’s lawsuit was timely filed.
Thompson was not required to prove a pattern of similar violations, as he had shown it was obvious that training on the issue of suppression of exculpatory evidence was necessary, and failure to provide such training would necessarily lead to violations of defendants’ civil rights. The DA couldn’t put all the blame on the prosecutor who concealed the blood evidence, because other prosecutors had seen the blood type report and failed to notify Thompson’s attorney; the prosecutor who hid the evidence wasn’t even involved in the capital murder trial; and other exculpatory evidence had been withheld. The Court of Appeals further determined the jury charge was adequate.
The defendants attempted to argue that Thompson had actually committed the murder, which was thus the proximate cause of his incarceration. They complained about not having been allowed to litigate the issue of guilt or innocence in the civil rights trial. The Fifth Circuit determined the question was whether Thompson could have been convicted in the murder trial but for the constitutional violation – not whether he had committed the crime. The matter of guilt was determined at the second murder trial when Thompson was acquitted, and the defendants were collaterally estopped from re-litigating the issue once he was found not guilty.
The Court of Appeals held that the jury award of $14 million – about $775,000 per year that Thompson was incarcerated – was not excessive. The attorney fees and costs of $1,166,177.45 awarded against the defendants were about half of what was requested, were reasonable, and did not even compensate Pennsylvania attorneys Michael L. Banks and John Gordon Cooney, Jr. for fourteen years of pro bono work in getting Thompson’s convictions overturned. Furthermore, Thompson’s attorneys did not seek compensation for local counsel Robert Glass of New Orleans, and the district court pronounced it was “genuinely impressed” with the attorneys’ presentation of an extremely difficult and complex case.
The judgment and jury award were upheld except that the case was returned to the district court with instructions to replace the defendants’ names with those of the current office holders. See: Thompson v. Connick, 553 F.3d 836 (5th Cir. 2008).
Following the appellate ruling, the DA’s office announced that it couldn’t afford to pay the judgment and asked for state authority to file for Chapter 9 bankruptcy. “I just want to have that option available if it is necessary for me to do that,” said current New Orleans District Attorney Leon Cannizzaro. Cannizzaro later backed off the bankruptcy plan, opting to first exhaust all appeals in the civil case.
On April 10, 2009, the Fifth Circuit, sitting en banc, affirmed the prior appellate decision in an equally divided opinion. Under the Court of Appeals’ rules, equally divided rulings uphold the district court’s judgment, usually without a written opinion. In this case, however, several appellate judges issued concurring and dissenting statements.
Chief Judge Edith Jones, joining Judges Clement, Jolly, Smith, Garza and Owen, would have overturned the jury award based partly on a finding of no municipal liability under Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). “Only under the most limited circumstances may a municipality be held liable for the individual constitutional torts of its employees,” Clement wrote.
Chief Judge Jones also cited “the troubling tension between this unprecedented multimillion dollar judgment against a major metropolitan District Attorney’s office and the policies that underlie the shield of absolute prosecutorial immunity.”
Five Fifth Circuit judges issued a concurring opinion that affirmed the panel decision, including Judges Prado, King, Wiener, Stewart and Elrod. They emphasized the importance of the jury’s findings and noted the dissenting opinion “overlooks much of the evidence the jury heard and ignores the standard of review that we apply to jury verdicts.
By reading the dissent, one would be hard pressed to even realize that a jury rendered the verdict in this case.” See: Thompson v. Connick, 2009 U.S. App. LEXIS 17728 (5th Cir. 2009)(en banc).
While the en banc ruling is a victory for Thompson in his ongoing efforts to hold the DA’s office accountable for his wrongful convictions and the many years he spent in prison for crimes he did not commit, it is a sad commentary that half of the Fifth Circuit judges who ruled in this case would have overturned the jury’s verdict.
Additional source: The Times-Picayune
On December 19, 2008, the Fifth Circuit Court of Appeals upheld a federal jury award of $14 million in a case involving the wrongful conviction of a Louisiana man for attempted armed robbery and first-degree murder, in which the prosecutors withheld an exculpatory blood test report and other evidence. That decision was narrowly affirmed in an en banc ruling by the Fifth Circuit in April 2009.
John Thompson spent eighteen years in prison, including fourteen on Louisiana’s death row, after he was convicted of separate charges of attempted armed robbery and capital murder for crimes he did not commit. To achieve the convictions, the prosecutors manipulated the legal system and withheld evidence.
After being exonerated or acquitted in both cases, Thompson filed a civil rights suit pursuant to 42 U.S.C. § 1983 in U.S. District Court against the Orleans Parish District Attorney (DA) and individual assistant district attorneys for violating his rights by withholding exculpatory evidence. A jury found that while the violation was not the result of an official policy by the DA’s office of suppressing exculpatory evidence, it was deliberate indifference for the DA not to have established “policies and practices to protect one accused of a crime from these constitutional violations.”
Thompson and Kelvin Freeman were arrested for the capital murder of robbery victim Raymond T. Liuzza, Jr., who was shot five times on December 6, 1984. Victims who fought off an armed robber about two weeks after Liuzza’s murder saw Thompson’s picture in the newspaper and told police he was their assailant. During that attempted armed robbery some of the robber’s blood ended up on one of the victim’s pants, and the police took a cloth swatch of the pants for evidence. Thompson was also found with the gun used in Liuzza’s murder as well as Liuzza’s gold ring – items he said he obtained through trade as part of his drug dealing activities.
The prosecutor decided to try the attempted armed robbery case first because he believed that a conviction in that case would prevent Thompson from testifying at the subsequent capital murder trial, which would make it easier to convince the jury to give him the death penalty. Shortly before trial a blood test was run on the cloth swatch, which showed it to be type B. Several prosecutors and the DA were aware of the test results but no one told the defense attorneys representing Thompson. Additionally, one prosecutor intentionally withheld the cloth swatch from the defense by removing it from the forensic evidence file; he confessed his actions to another assistant DA after being diagnosed with terminal cancer in 1994.
Thompson was first convicted of attempted armed robbery, and later convicted of capital murder in a separate trial. As intended, the first conviction prevented him from testifying at the capital murder trial; had he testified, the jury in that trial would have learned about the robbery conviction, which would have hurt his defense. Freeman cut a deal with prosecutors and received a five-year sentence in exchange for testifying against Thompson. Freeman was later shot to death by a security guard in 1995.
Thompson spent 14 years on death row and was within weeks of execution, which his lawyers told him could not be prevented, when a defense investigator came across a copy of the blood test results in a microfiche file. Thompson’s blood type was type O. The execution was stayed and an investigation ensued which revealed the prosecutor’s 1994 confession that he had withheld evidence. Other exculpatory evidence that had not been turned over to the defense was discovered in both the armed robbery and murder cases, including eyewitness descriptions of the murderer that did not match Thompson and the fact that an acquaintance of Thompson had received a monetary reward for identifying him as Liuzza’s killer.
The DA moved to vacate the armed robbery conviction and did not retry that case. A grand jury began an investigation into the suppression of the blood type evidence, but the investigation was dismissed by the DA’s office. A state appeals court held that the unconstitutional suppression of evidence in the attempted armed robbery case had contributed to Thompson’s conviction in the capital murder case, and overturned that conviction.
The DA retried the murder case in 2003, and the jury acquitted Thompson after just 35 minutes of deliberation. Thompson then filed his federal civil rights lawsuit; he was awarded $14 million following a jury trial in February 2007. [See: PLN, Oct. 2007, p.22]. The defendants appealed.
The Fifth Circuit held that liability had been proven on the basis of the DA’s failure to train, monitor and supervise prosecutors regarding their duty to share exculpatory evidence with the defense. The statute of limitations did not begin to run until the capital murder case was overturned, because the suppression of the blood type evidence in the attempted armed robbery case called the validity of the capital murder conviction into question. Thus, the appellate court found Thompson’s lawsuit was timely filed.
Thompson was not required to prove a pattern of similar violations, as he had shown it was obvious that training on the issue of suppression of exculpatory evidence was necessary, and failure to provide such training would necessarily lead to violations of defendants’ civil rights. The DA couldn’t put all the blame on the prosecutor who concealed the blood evidence, because other prosecutors had seen the blood type report and failed to notify Thompson’s attorney; the prosecutor who hid the evidence wasn’t even involved in the capital murder trial; and other exculpatory evidence had been withheld. The Court of Appeals further determined the jury charge was adequate.
The defendants attempted to argue that Thompson had actually committed the murder, which was thus the proximate cause of his incarceration. They complained about not having been allowed to litigate the issue of guilt or innocence in the civil rights trial. The Fifth Circuit determined the question was whether Thompson could have been convicted in the murder trial but for the constitutional violation – not whether he had committed the crime. The matter of guilt was determined at the second murder trial when Thompson was acquitted, and the defendants were collaterally estopped from re-litigating the issue once he was found not guilty.
The Court of Appeals held that the jury award of $14 million – about $775,000 per year that Thompson was incarcerated – was not excessive. The attorney fees and costs of $1,166,177.45 awarded against the defendants were about half of what was requested, were reasonable, and did not even compensate Pennsylvania attorneys Michael L. Banks and John Gordon Cooney, Jr. for fourteen years of pro bono work in getting Thompson’s convictions overturned. Furthermore, Thompson’s attorneys did not seek compensation for local counsel Robert Glass of New Orleans, and the district court pronounced it was “genuinely impressed” with the attorneys’ presentation of an extremely difficult and complex case.
The judgment and jury award were upheld except that the case was returned to the district court with instructions to replace the defendants’ names with those of the current office holders. See: Thompson v. Connick, 553 F.3d 836 (5th Cir. 2008).
Following the appellate ruling, the DA’s office announced that it couldn’t afford to pay the judgment and asked for state authority to file for Chapter 9 bankruptcy. “I just want to have that option available if it is necessary for me to do that,” said current New Orleans District Attorney Leon Cannizzaro. Cannizzaro later backed off the bankruptcy plan, opting to first exhaust all appeals in the civil case.
On April 10, 2009, the Fifth Circuit, sitting en banc, affirmed the prior appellate decision in an equally divided opinion. Under the Court of Appeals’ rules, equally divided rulings uphold the district court’s judgment, usually without a written opinion. In this case, however, several appellate judges issued concurring and dissenting statements.
Chief Judge Edith Jones, joining Judges Clement, Jolly, Smith, Garza and Owen, would have overturned the jury award based partly on a finding of no municipal liability under Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). “Only under the most limited circumstances may a municipality be held liable for the individual constitutional torts of its employees,” Clement wrote.
Chief Judge Jones also cited “the troubling tension between this unprecedented multimillion dollar judgment against a major metropolitan District Attorney’s office and the policies that underlie the shield of absolute prosecutorial immunity.”
Five Fifth Circuit judges issued a concurring opinion that affirmed the panel decision, including Judges Prado, King, Wiener, Stewart and Elrod. They emphasized the importance of the jury’s findings and noted the dissenting opinion “overlooks much of the evidence the jury heard and ignores the standard of review that we apply to jury verdicts.
By reading the dissent, one would be hard pressed to even realize that a jury rendered the verdict in this case.” See: Thompson v. Connick, 2009 U.S. App. LEXIS 17728 (5th Cir. 2009)(en banc).
While the en banc ruling is a victory for Thompson in his ongoing efforts to hold the DA’s office accountable for his wrongful convictions and the many years he spent in prison for crimes he did not commit, it is a sad commentary that half of the Fifth Circuit judges who ruled in this case would have overturned the jury’s verdict.
Additional source: The Times-Picayune
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Related legal cases
Thompson v. Connick
| Year | 2009 |
|---|---|
| Cite | 2009 U.S. App. LEXIS 17728 (5th Cir. 2009) (en banc) |
| Level | Court of Appeals |
| Conclusion | Jury Verdict |
| Attorney Fees | 1,166,177.45 |
| Damages | 14,000,000.00 |
| Injunction Status | N/A |
Thompson v. Connick
| Year | 2008 |
|---|---|
| Cite | 553 F.3d 836 (5th Cir. 2008) |
| Level | Court of Appeals |
| Conclusion | Jury Verdict |
| Attorney Fees | 1,166,177.45 |
| Damages | 14,000,000.00 |
| Injunction Status | N/A |