The New Yorker Radio Hour - John Thompson vs. American Justice

Episode Date: January 29, 2019

When police showed up to question John Thompson, he was worried that it was because he had sold drugs to an undercover cop.  When he realized they were investigating a murder, he could only laugh: ��Shit, for real? Murder?”Thompson was insistent on his innocence, but New Orleans prosecutors wanted a conviction for a high-profile murder, and they were not scrupulous about how they got it. Thompson quickly found himself on death row. Eighteen years later, just weeks before Thompson was due to be executed, his lawyers discovered that a prosecutor had hidden exculpatory evidence from the defense. Thompson had been set up. This was a violation of the Brady Rule, established by the Supreme Court, in 1963, to ensure fair trials. Ultimately, he was exonerated of both crimes, but his attempts to get a settlement from the district attorney’s office—compensation for his time in prison—were thwarted. Though an appeals court had upheld a fourteen-million-dollar settlement, the Supreme Court reversed the decision, declining to punish the D.A. for violating the Court's own ruling. Thompson’s case revealed fundamental imbalances that undermine the very notion of a fair trial.  Under the Brady Rule, prosecutors must share with the defense any evidence that could be favorable to the defendant.  But there is essentially no practical enforcement of this rule. In most states, prosecutors are the ones who hold the evidence and choose what to share, and disclosing exculpatory evidence makes their cases harder to win. We have absolutely no idea how many criminal trials are flawed by these violations.The staff writer Andrew Marantz, his wife, Sarah Lustbader, of the Fair Punishment Project, and the producer Katherine Wells reported on John Thompson’s story and its implications. They spoke with the late John Thompson (who died in 2017), with his lawyers, and with Harry Connick, Sr., the retired New Orleans D.A. who, despite having tried very hard to have Thompson killed, remains unrepentant. This episode contains explicit language and may not be suitable for children. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

I'm David Remnick. This is the New Yorker Radio Hour. The United States is a country founded on the rule of law, where we're innocent until proven guilty, where we have the right to a trial with a judge acting as a referee to make sure that everyone's playing fair. Now, none of us are stupid. We all know that it doesn't always happen that way, but by and large, most of us feel like the system works or should work in a certain way. But what if not everyone is playing fair? What if the way we define fair turns out of out to be not fair at all. What if the deck is stacked on every hand? Today on the New Yorker radio hour, we're going to spend the entire show on one story, a story of crime and punishment

that will make you think very hard about how we do justice in this country. It comes to us by way of our staff writer Andrew Morrance, and for Andrew, it starts right at home. So my wife, Sarah Lustbader, she's a lawyer and for a long time she was a public defender in the Bronx. And, you know, you often hear about public defenders. They're overworked. Their job is so difficult. And that is all true. But another thing that she often said, you know, at the dinner table is not only is the job hard,

it's like I feel like I'm fighting with one hand tied behind my back, basically. Like this does not feel like a fair fight. Actually, what I think I said to you was I have to fight my cases with one hand tied behind my back and blindfolded. I think you forgot that. Yeah. Okay. Objection sustained. Yes, this is true.

And I think it takes even defense attorneys by surprise sometimes just how imbalance the system is. If you watch Law and Order or any other crime show, you imagine the two sides walk into the courtroom with the defense and the prosecution, each having the same set of facts. And they make their best case with the evidence. Is that right? Sort of? No, it's not. So let's just walk you through it, right? Let's say, for example, you, Andrew, you're charged with robbery.

Someone says he came up to me, he had a weapon, he robbed me. Maybe there's evidence against you. Maybe there isn't. Maybe there's a surveillance video. The prosecution doesn't have to show you that surveillance video. Maybe they'll give you an offer at that point, drop it down to trespassing. You'd plead guilty, maybe do a couple days of community service. You're certainly not facing an armed robbery charge.

Would you take that deal? But I didn't do it. I wasn't even there. Would you go to trial and face 15 years in prison for armed robbery? But I'm telling you I didn't do it. Like, do I have to? What do they have on me? So in theory, if the video looks really good for you, like you didn't rob anybody.

I didn't. You'd think it would be obvious. But there's actually a rule about this saying that you, prosecutor, you must turn over any evidence that's favorable to the defendant or even might show that the defendant is innocent. That rule is called Brady. It comes from a 1963 Supreme Court case. Under Brady, you should get that video. But in practice, prosecutors don't always turn over that evidence. And no judge, no jury, no one's there to force the prosecutors to turn the evidence over.

As a defender, you just don't know what you don't know. So plenty of people plead guilty without ever having any right to see what evidence is out there against them. So you're saying I either sit in jail waiting for a trial and go up against. odds that I don't know what they are, or I just plead guilty without ever knowing what evidence they have on me. Yes. Now, let's say you're one of the very few people that says, no, you know what, I didn't do anything wrong. I'm going to take my chances at trial. So you go to trial.

Even at trial, you don't get access to every single thing. And if you looked over the evidence that the prosecution didn't turn over, you might have a different opinion about whether they were supposed to turn it over or should have turned it over. But that's not an opportunity that you'll ever get. If you're a defense attorney, this is keeping you up at night, every night. You can't see what they have. You can't see over the wall between the prosecution and the defense. Sara became obsessed with one case, almost a one-and-a-million case, where the wall came down entirely. And what it revealed went all the way to the Supreme Court.

The case was called Connick v. Thompson. Now, one quick word. But this is an episode with a lot of cursing from a guy who's got plenty to curse about, and you're going to be hearing it all in the podcast. So heads up. Here's Andrew Morant's in Saralusbetter. So the story starts in 1984 in New Orleans with a guy named John Thompson. At the time, John was 22 years old.

He had two kids. I really loved it my sons. One lived it with me and the other one visited me every weekend. I kept them. I had a job, cleaning, jewelry, repairing. jury. But by time I reached maybe 21, 20, 21, I had and got to the point where I was making so much money on drugs that I didn't want to go to work. John told us he wasn't a violent guy. He did deal drugs. And he was also a fence, which meant he traded stuff, mostly stolen stuff. Offense is that's all he is. Someone that you can go find things that you wouldn't know that could find somewhere else.

He would trade drugs for guns, jewelry, things like that. And that became a way of life, which, you know, two years later became my destruction, too. In January, 1985, the police came and arrested John Thompson. So at first he assumed it was for a drug possession or a possession of stolen property or something, but then the cops told him it was for a murder charge. Really, it was a joke to me. I started laughing. It was like a relief.

You telling me about some fucking murder. For real? Murder? It felt like a relief to. It was a relief because I'm worrying about you saying that you got somebody that I didn't sold some fucking drugs. to undercover. I'm thinking you got me for something. We should just jump in and say,

John does not watch his language. He talks exactly the way he talks. So we're going to do our best, but you should just know if you're listening with kids or if you're sensitive. Anyway, John knows he's committed crimes, low-level crimes. What he's saying is nothing violent and murder, never.

You know, when you're telling me about some fucking murder, murder, man, please. I like, it was relief. Here's what had happened. A few weeks earlier, this young man named Ray Lausa got killed on the street. The attacker robbed him late at night, took his wallet, took a ring off his finger, and shot him and killed him. Ray Lausa was from a very prominent business family in New Orleans, well-connected, big donors to local politicians. So even though there were a lot of murders around this time, this particular murder was front-page news.

There was a lot of pressure to solve this murder quickly. So the family puts up a big reward. They ask anyone to come forward with information. And a lot of people called in. And most of the things they called in with were useless. But this one guy called in, he seemed to know a lot about the murder. What he told the cops was, I helped John Thompson sell the gun, the murder weapon.

I think John Thompson and this guy, Kevin Freeman, they're the ones who did it. So he and the cops went to the person's house, that he said he'd sold the gun to. And when he got there, the man he'd sold the gun to was wearing Ray Laiusa's ring. And when the cops asked him, hey, where'd you get that ring? He said, oh, John Thompson sold it to me.

So at this point, the police started questioning John as a murder suspect. I'm like, man, I can't tell you all something I don't know nothing about. I wasn't there. How the fuck you want me to tell you about what happened? I wasn't there. I can't give you that. You got to deal with the person or the people whoever was there, but I wasn't none of it.

At this point, the police are questioning both John Thompson and Kevin Freeman, trying to get them each to flip on each other. John actually knew Kevin and had bought stolen stuff from him in the past, but all he said to the cops was, look, I don't know anything about a murder. Basically, he just stonewalled them and wouldn't give Kevin up. But while John was maintaining that silence with the cops, Kevin was talking. Once he realized that I wasn't testifying against him or I wasn't going to give him up,

he gave me up like, he heard. Hurry up and reverse the flip. So Kevin saw an opportunity here. He told the police that he'd been with John that night and that John was the murderer. He cut a deal with the prosecutors and offered to testify against John. And in exchange, they offered him a very lenient sentence. So now the prosecutors have what they wanted. They had an eyewitness identifying a murderer.

Then something else happened that was very, very bad for John. When he was arrested, his photo ran in the paper. And then the cops got another call saying, hey, That guy you have in custody for killing that executive son, he also did this carjacking. It turns out that a couple of weeks earlier, three white teenagers were leaving the Superdome when an African-American guy tried to carjack them. When John's photo ran in the paper, the father of those kids sees the paper and says to the kids, is this the guy that carjacked you?

And they said, yeah, I think it is. John got charged with the carjacking too. Here's what you need to know about the district attorney's office in New Orleans at the time. It was run by Harry Connick Sr., who, yes, is the father of Heraconic Jr. Herri Connick Sr. was known to have a win-at-all-cost kind of mentality. In fact, the lead prosecutor on John's case would later become notorious for keeping a mini-electric chair on his desk with the faces of all the people he'd sent to death row. So if they get a case like the murder of Ray Laiusa, this wealthy, well-connected white guy,

The DA's office wants a conviction, they want it fast, and they want the maximum sentence they can get. And that's the death penalty. So they did something unusual in this case. They scheduled the carjacking trial first, even though it happened after the murder and it was a less serious charge. But if John had a violent felony conviction on his record, then they could use that to go for the death penalty on the murder case. So at the beginning of the trial, John's attorneys asked the prosecutors to hand over any scientific evidence that they had. And the prosecutor said, absolutely.

But the defense never got anything. In fact, at the trial, the evidence against John was basically just the testimony, the eyewitness identification of these three teenagers. And based on that testimony, the jury convicted John of attempted robbery. For that, his first violent charge, John was sentenced to 49 years in prison

without the possibility of parole. Once I was convicted of the fucking robbery, that I didn't do. That was a done deal. I ain't had no faith in the system. So next came John's murder trial, and now John had a violent felony on his record. And at this point, John figured

the victim's father is this huge figure in New Orleans. I just don't think I'm going to get a fair trial. Like, I was zoned out. I was already feeling doomed. I had two white lawyers. I was accused of killing one of the richest white man in the New Orleans son. Both lawyers was high-profile lawyers, so they need no money.

They were scared to death of the fucking father. So those high-profile lawyers, John's lawyers, they told John that it would be a bad idea to testify in his own defense at trial because the prosecutors had said that if he did testify, they were going to ask him about that carjacking conviction. And it would look like he was this career criminal. So John didn't testify in his own defense. And the murder trial was actually pretty fast.

Kevin Freeman testified against him. He said he had been there that night and he had seen John commit the murder. In the end, the jury found John guilty of murder and he was sentenced to death. John was sent to Angola and he was put into a cell on death row. This death row where all of these guys has got the same fate,

we can kill all your ass if we can. To see our execution and this would really got me to be there on execution when someone was being executed. The level of I don't even know how to really explain that. The transitioning

that will go through them final 24 hours before execution. Man, it's remarkable. I'm sorry. To see these guys praying, I mean, this fucked me up.

It disaffected me so much because the reality hadn't really, really, really hit me that they're going to kill you. And that shit scared the fuck out of me. That's the real. That's John Thompson of New Orleans. Andrew Moran, a staff writer at The New Yorker, reported with Sara Lusbader of the Fair Punishment Project. Our story first aired in 2018, and it continues in a moment. This is the New Yorker Radio Hour. Stick around. Welcome back to the New Yorker Radio Hour. I'm David Remnick. We've been hearing the story of John Thompson, the murder case against him.

and his case against the people who prosecuted him. It's an extraordinary story, and we're spending all of today's program on Thompson and the system that put him in prison. John Thompson was a low-level criminal in New Orleans. He had no violent offenses on his record. But he was convicted in 1985 of a carjacking and then a murder that landed him on death row.

Sarr Lusbeder reported the story with her husband, Andrew Morance, a staff writer at the New Yorker. John decided to fight. He sent out dozens of letters to all these lawyers who he thought might be able to help with his appeals. And in 1988, his case ended up on the desk of these two corporate lawyers in Philadelphia. I'm Michael Banks. I'm an attorney and a partner at Morgan Lewis. I've been here for 35 years.

And I'm Gordon Cooney, an attorney and a partner at Morgan Lewis, and I've been here for 33 years. That makes me the senior statesman, right? I'm the junior rookie. He's kid. In the two. Kid. They really were rookies in 1988. They were just a few years into their careers, and they'd only done civil litigation defending big companies against lawsuits.

They had never done a criminal case before. I had never been in a prison, period. But they did have reservations about the death penalty, and they knew they wanted to take on a pro bono appeal. And the Thompson case found us at that point. Michael and Gordon flew down to meet with John at Angola. I'm sure he was dismayed by our youth. if you call central casting and say, send me a lawyer over who's going to save my life and exonerate me, I don't think we were what he had in mind. John was definitely skeptical. He was thinking, I'm in trouble. Here you go again.

So money, respect money. That's the bottom of fucking line. And so here I'm accused of killing the richest fucking man's son in New Orleans. And here come these high-power-ass lawyers. Got to be able to relate to this fucking father. Bottom line. You didn't trust them. Fuck no. Trust them for what? I'm like, where you're all from? Michael and them came from, both of my lawyers came from extended lawyers families. Their dad and those lawyers, you know, chip off the old blocks.

And so you come from old money. And so that means you're going to be able to relate to them more than you can relate to your own fucking client. Because at some point, you got to look at this and say, damn, that could have been me. Or down, that could be my son. So Michael and Gordon had to build up trust, slowly. And they had to learn how to do a death penalty appeal. as they went. So they started pouring over the details of the original trial and trying to find what

their strategy would be for the appeal. Based on the record they were looking at, it really seemed like John was guilty. What were the odds that he had been falsely accused and convicted of two separate crimes? But the truth is that they didn't know what they didn't know. So at the same time, John was learning the law. He was in prison and he was exchanging information with his friends on death row about their cases. In fact, John noticed that one of these friends had this amazing investigator who was handing over all these really detailed daily reports of her work. So I'm reading his report.

I said, damn, she's good. You know, because I'm looking at detail, detail, shit. I'm like, fuck, I ain't going to have none of my fucking reports. I'm reading his reports, and I'm realizing I got an investigator that I ain't never seen none of her fucking reports. I get on the phone and say, hey, hey, y'all, where is my investigative report? Do I have an investigator that's working on my case? So John called Michael and Gordon and said, guys, we need to hire this exact investigator. Her name was Elisa Abelafia.

They said, John, we already have an investigator on your case, but he said, no, this one. So they did. Michael and Gordon looked at the records from the original trial, and they found a lot of issues. All these issues dragged on in the courts for years. At one point, John's lawyers got a hold of some police files, indicating that the witnesses against John had been paid a reward. And they thought, hey, the defense definitely should have had this a long time ago. And this was because of the Brady rule, which, remember, is the Supreme Court ruling that the prosecution has to give over to the defense anything that could potentially be favorable to their client. Since the prosecution in John's case hadn't handed over those police files, Michael and Gordon suddenly wondered, well, what else are they hiding?

They showed this to the judge, and the judge ordered the prosecutors to hand over, quote, every scrap of paper related to the case. but the prosecutors just refused. They just didn't do it. Michael and Gordon press on. They appeal on all of these issues. But they lost. They lost at the lower court and the higher court. They lost in state court.

They lost in federal court. And the Supreme Court refused to hear their case. The agonizing sense of frustration and fear at some level about what that meant, I think, For both of us, it was pretty consuming. After 11 years, in April of 1999, Michael and Gordon exhausted all the possible options for appeals.

We flew down to Angola on a Monday morning in April to tell John about the final writ of execution. We had to tell him he needed to get himself emotionally prepared for the likelihood that he was going to die in a month. So we walked into the prison and as soon as he saw us, he hugged us and said, what's the date? Meaning what's the execution date that I have? And we said, John, it's May 20th. And he hung his head and he looked back up at us and he said, do you think we might be able to get that changed? John Jr., my youngest son, is the first person in my family to graduate from high school and his graduation dates the next day. And we said we would try, but we thought it was highly unlikely. He then spent the next 15 minutes asking us to assure him that we would look after

his sons after he was gone. At that meeting, Michael and Gordon told John that there was one last recourse, one thing they could try. And that would be for them to file a motion for ineffective of assistance of counsel, that John should basically claim that they had botched his case. I'm like, what? I was so fucked up about that. I said, man, y'all crazy motherfucker. No. They were like, what you mean? No. I'm like, no, man. No. That's what it's going to take to save my life. I must don't be deserved to be here. Because at that point, I realized that y'all was doing everything in your power. Everything that it was for y'all to be able to do, y'all did. Y'all didn't hesitate, y'all didn't ask the coach for no money, none of that shit.

Y'all was like, y'all was 100% in. And when I told them that, it really fucked them up in the head that I didn't want them to do that. And it was like, this could save your life. I'm like, no it can't. Just because you're doing that, that ain't no fucking guarantee. No, it can't save my life. I say, well, it will destroy my life if they still killed me. And I know y'all did this shit and it ain't right.

because y'all was effective. Y'all did do with everything y'all could do and your power to save my life. So if this is the route you're going to go, I'm not going to be a part of it. And the rest of the time he spent consoling us. It was without a hint of emotion for him. You guys did a great job.

Don't take this as a failure. You've done more for me than I ever could have expected. It was unreal. I can remember, but when he leaving, I can remember, like, you know, just putting my head down and, like, saying, wow. Wow, that's how this shit going in. Michael and Gordon left Angola for the long drive back to New Orleans.

That hour was the quietest time that Gordon and I ever spent together. We could not muster up a word. We were probably an hour into the drive, and I just decided I can't stay in this anymore. At least I'll distract myself by seeing what voicemails I have. and probably the second voicemail in my voicemail box was a message from our investigator, who basically said, you know, Gordon, this is Elisa. I found something really important. Please call me right away.

I know you're in New Orleans. Here's my number. Call me right away. And there was a lot of excitement in her voice. So this sounds like something that would happen in a movie, but this is actually what happened. It's almost unbelievable. I mean, they're really driving away. They've just told John that he's going to die in a month. And after 11 years, they've failed. And in that moment, they turn on their phone and get this message. So they called the investigator, and here's what

she told them. She made this last ditch Hail Mary effort. She went to this old police evidence room. They did not want her to come in. She talked her way in. She found this box of evidence from the carjacking trial. The prosecution had never handed that over to the defense. She looked in the evidence. She saw this old lab report, and the lab report revealed that the perpetrator of the carjacking definitely had type B blood. This was huge, and it was totally new information. Only about 10% of people have type B blood. If John didn't have type B blood, then it would prove that John didn't commit the carjacking. And if he didn't commit the carjacking, then a death sentence on the murder case would have been much less likely.

But Michael and Gordon didn't know John's blood type, so they called him. That's what they say. We got good news. We found some blood. We just trying to make sure it ain't your blood. What's your blood type? I don't know. John didn't know, but time was really of the essence. They needed to find a doctor or a hospital, someone who had a record of John's blood type. They made all these calls. They also came up with this really weird plan to get an actual blood sample from John. The FedEx Mia envelope that had a small Ziplock bag attached to a fake-ass, a letter with nothing on it. And I was supposed to take the stapler that they had to staple a plastic bag into the

thing with it. They would hold in my finger and squeeze some blood out. Let it go in that plastic bag and zip it back up. Put it back in another envelope that they had inside of it and mail it back out to them right away. So John sends back the envelope, but by then Michael and Gordon didn't need it. They had gotten a call from a city hospital, and the city hospital told them that John's blood type was O. John couldn't have been the carjacker.

When John heard that news, he realized exactly what it meant. She, I'm going to live. I'm going to live. This is a pretty textbook example of a Brady violation. This is a nightmare for defense lawyers that there's something that definitively proves that their client is innocent. The prosecutors had it. didn't turn it over, and their client was sent to death row. Just to be clear, this blood evidence is sitting on a prosecutor's desk.

There's no one who can, like, ask for it or demand that they hand it over? No, because nobody knows it exists except the prosecutors. And this is exactly the kind of behavior that this rule was intended to prevent. There's no way to know the full extent of how often this type of violation happens. But hundreds of exonerations have come about because of breederations. have come about because of Brady violations. And the fact that we don't have a number, a sense of the extent of the problem, that is the problem, because it's usually hidden.

It's amazing that in this case they actually found it. So when this hidden blood evidence finally came to light, this was the first break John had caught in a long time. He was still in prison, but he didn't have an execution date. He didn't know what was going to happen next exactly, and it was still totally unclear how this evidence was hidden in the first place. Then, a few days later, he caught another break.

A man named Mike Realman stepped forward and said he had some new information about John's case. Mike Realman was once a prosecutor in the New Orleans DA's office, and one of his friends in that office had been the junior prosecutor on John's carjacking trial. His name was Jerry Deegan. I was crazy about him. I loved him. I gave his eulogy at his funeral.

We were really close. When Jerry got sick, he had this conversation with Mike Realman. The conversation was about the doctorate told him that he had had colon cancer, was in remission, and then he told me that it had recurred or whatever, and it returned, and that the prognosis was real bad. But in that same conversation, Jerry had told him something else. He told him he had this one big regret about this case he'd worked on.

He had hidden blood evidence in a case one time. He'd made it disappear. I was surprised, and as I recall, I just told him he had to do something about it. Jerry wasn't on his deathbed yet, but this was pretty much a deathbed confession. I didn't know. I don't remember that I knew that it was a guy still in prison or on death row or anything like that. I just, he, you know, told me of that regret, and that's all I've really recalled. When Mike Realman heard about John's case through the local lawyer grapevine, he put two and two together. He went to John's lawyers and told them what Jerry Deegan had said about hiding the evidence.

And the investigator on John's appeal discovered that before the trial, Deegan had checked out seven items of physical evidence from a police evidence room. He'd only returned five, everything except the two blood samples. So now John's lawyers clearly knew that the prosecutors hid the evidence on purpose so that the defense would never see it. Now, why would Deegan do that? Well, Mike Realman didn't know, and I don't know that any of us are really going to know. But from what we do know about the case, it does seem difficult to believe that Jerry would do this all on his own without the knowledge of the senior prosecutors on the case. I have my suspicions about what happened in this case, but I would never reveal them.

I mean, I just don't want to do that. He was very junior. I mean, it must have been one of his first trials. Oh, absolutely. Absolutely. It had to be. And he obviously felt guilty, though, about this. They had recalled it and mentioned it to me many years later. I would say you're right, yeah.

Based on these new revelations, the carjacking conviction was quickly overturned. And eventually, the murder case was revisited. The judge said to the prosecutors, you really have to turn over everything. It is now clear that you have not been forthcoming. Just give everything to the defense. And even though they had ignored it the last time, this time they complied. So John's lawyers, Michael and Gordon, before there was all this stuff they didn't know they didn't know.

Now they have it, all of it. They started going through the files and they realized there are a ton of witnesses here that we never knew existed. They went back and interviewed those people. Kevin Freeman, the guy who had testified against John, he had said that both he and John were at the murder scene, two people. But these new witnesses that came up, they all said there was only one person at the murder scene, and the person they described running away from the scene was tall with close-cropped hair.

Kevin Freeman matched that description. John definitely did not. I'm probably five, seven and a half at the most. Some people would say five, eight, But every time I measured, they never came up to 5'8. But I had this fro, you know, I had this incredible afro that was like a Michael Jackson-type-style bush. And that's when we had our aha moment. This was no longer a hunch that John is a good guy or a firm belief that he had been denied a fair trial.

Now we were able to reconstruct the entirety of the murder and say, wow, John didn't do it. So now that all of this evidence has come out, and it overwhelmingly shows that John was not guilty of the carjacking, but he's also not guilty of the murder. The prosecution still didn't say, wow, we are so sorry. Like, we have just committed the cardinal sin the worst thing a prosecutor can do. No, they did everything they could to keep him in. They fought tooth and nail. Finally, after a huge effort, John got a new trial. At this trial, all of the evidence that tended to John's innocence came in.

Finally, he got to testify. Finally, he got to explain why he had a gun, why he had a ring. He was offense. This is what he did. He bought these stolen things from Kevin Freeman. So you've been in prison for 18 years, and then you get your new trial. And so they've already dismissed the armed robbery case. They give you a new trial on the murder case.

And for the first time, you get to get up in court and tell your child. story. What was that like? I just basically brought on to this what we was all about from the get-go. This was scared the fuck out of y'all from the get-go. That's why y'all placed all these other crimes on me that y'all know I didn't do. Because you didn't want this to happen. You didn't want me. So I was

confident in that aspect. I ain't had nothing to how I ain't killed no fucking body. You couldn't cross me up about the murder at all. You could cross me up but something I ain't had nothing to do with. So you could ask me questions about the murder. All you fucking won't. I can't answer none of them because I wasn't there. After the trial, the jury deliberated for 35 minutes.

That is not a lot of time. So I'm sitting, you know, all rise. This was the moment John had been waiting for for 18 years. A verdict after a fair trial, a trial where both sides had equal access to the evidence. When he said, yes, Yonah, we reached the verdict. And the judge said, can you read it to us? And when he said, not guilty. That's the only thing I heard.

From then on, um, nothing else. I mean, everything else went black. Everything else went, when, um, it was because the uproar and the cold room, everything got emotional fast. Tommy came out of the jury mouth. I mean, he got emotional fast. I think the only thing I could do is just, you know, catch my breath, you know, and I realized that, fuck, you know, that it's over with.

that was a hell of a hell of a feeling. After 18 years in prison for two crimes he did not commit, after 14 years on death row, after getting within weeks of execution, Thompson was free. If the story ended there, we probably wouldn't know John Thompson's name at all. He'd be another exonerated man, one of hundreds. But it's very rare that we get such cut and dried evidence of misconduct. Thompson wanted justice, and the pursuit of it was much more complicated than you might expect.

We'll continue in a moment on the New Yorker Radio Hour. I'm David Remnick. This is the New Yorker Radio Hour. This is a special episode of the show devoted entirely to the story of a man named John Thompson and an abuse of power by a district attorney's office that nearly cost Thompson his life. Thompson was wrongfully convicted of two crimes that sent him to death row. and in one of those cases, a prosecutor had deliberately concealed the scientific evidence

that ultimately exonerated him. Reporters Andrew Morantz and Sara Lusbetter see in John Thompson's case a clear example of how the rules can be flouted to keep defendants at a disadvantage. And for Sara, who was formerly a public defender, it's a lesson that prosecutors have too much power over the trial process.

John Thompson finally won his freedom, but what about the people who set him up. In 2003, John Thompson got out of prison. And so he started wondering, how is what happened to me not a crime? I'm speaking in terms of what is a crime, what is attempted murder. You know, and they get mad because they don't want to create that conversation. They want to keep the conversation as malfeasing of office.

I mean, this prosecutor builds his authority. No, this prosecutor tried to kill me. He ain't tried to abuse his authority. Now he tried to commit a crime. He tried to kill me. If I tell you that this attorney took $10 for me, you're going to try to get his ass. But I can tell you he tried to kill me.

You ain't going to do him nothing. His lawyers asked the prosecutors for a small settlement to get John on his feet after what he'd been through, and the prosecutors flat out refused. So you might think John could maybe sue the prosecutors. But here's the thing. Individual prosecutors have absolute immunity for anything they do in the course of their job.

legally speaking, it's like as long as they're acting as prosecutors, they can do no wrong. So we could not sue under federal law or state law, the individual prosecutors. That's Gordon Cooney, one of John's lawyers. He and Michael Banks, the other lawyer, they decided that if they couldn't go after the individual prosecutors, then maybe the whole office of the DA could be held responsible. Hi there. I'm Andrew Moran, we spoke on the phone. So, again, the District Attorney of New Orleans at the time of John's trial, he's since retired, was Harry Connick Sr., the father of the singer. He was the DA in New Orleans for 30 years.

My name is Joseph, Harry, Fowler, Connick. That's a lot of names. Well, I'll tell you what, I'm one of eight. I told all of my brothers and sisters, I said, look, it's obvious that Mother favored me over all of you. And they said, how can you say that? I said, well, what is your name, James Paul? What is your name? Paul David. What is your name? What is your name?

I said, all of have had three names. I said, she gave me four. And if that doesn't indicate something. Talking to Harry Connick, you can get a sense for how he was able to win election after election and keep the office of the DA for 30 years. He's a good politician. He's charming. But he might not have been the most scrupulous manager of that office.

After the blood evidence came to light, John's lawyer started investigating the practices of Connick's office, and they found some really troubling stuff. They talked to prosecutors who'd worked under Connick, and they learned that there was this aggressive culture, this culture of when at all costs in the office. Yeah, because people referred to prosecutors in the office feeling a pressure to get convictions, and that seems like something that you mandated. That's what they're there for. That's what we do. You know, that's how we're living. I'd like to let my lawyers take cases and use their own judgment. I trust their integrity and their competence. A lot of people were upset defense lawyers primarily and defendants. What I was doing, you know, well, I wasn't there for them.

I was there for the people who elected me. During the investigation, John's lawyers had questioned Connick directly. They asked him about Brady. the rule that should have compelled the prosecutors to give that blood evidence to the defense in John's case. They found out that Connick didn't train his prosecutors on Brady. There had been four death throw exonerations related to Brady violations in the decade before John's case.

Connick was basically allowing his prosecutors to ignore the Brady rule. He even testified that the whole time he was DA, he hadn't read a law book. John's lawyers asked him, okay, can you just define what the Brady rule is? And he couldn't. That was, he was asking me something about a definition, and I couldn't give him a classroom definition, you know.

First of all, what is Brady? Because Brady's changed a few times over the years. I should say, what version do you want? Right, the most recent one, which is why you have to keep up with it. Yeah, yeah. But I, no, that was not the best said statement in my life. I see. Soconic demonstrated under oath that he didn't totally understand Brady,

that he didn't train his own prosecutors in Brady, and it was clear that at least one of his prosecutors had deliberately hidden evidence. With those facts, John's lawyers built their case against the office. They sued the office of the district attorney for violation of John's civil rights. It was a piece of restoring John's dignity to say, you, John, are the good guy in this, and the prosecutors who were supposed to be wearing the white hats. and putting criminals in jail

and upholding the values of the criminal justice system, they were the bad guys, you were the good guy. The jury gave John an overwhelming win, $14 million a million for each year he'd spent on death row. You know, I just feel, I don't believe it's about the amount. I believe it was more about them saying, you're right. This was a huge moment of vindication for John and a huge blow to the DA's office.

So you might think, that this would have been shameful for Connick, that there might be some regret. What he went through, he, all of a sudden, I mean, I did a study on Thompson, and I knew what kind of person he was. But then they claimed that he got a halo and wings, which is maybe he did, and I don't hold that against him. But they got a million dollars a year for a million dollars a year for, 14 years. That's a pretty stiff penalty to have to pay for the taxpayer to have to pay.

It's pretty surprising to hear Connick talk this way about someone that his office had imprisoned for 18 years for two things that he didn't do. But that was not even the most shocking thing, he said. He killed the son of a friend of mine, as a matter of fact, but a very prominent New leaning and a good generous citizen. But... He killed him? This is... Thompson. That's what he was prosecuted and convicted of.

Right, but he didn't do it. Who said that? The jury. He was found not guilty later. They really come back and say not guilty. They don't say that he was innocent. Yeah, so I did not know. This was shocking.

I didn't know until that moment that he didn't believe John was innocent. Or he didn't want to believe John was innocent. Yeah, he still to this day thinks John did it. I mean, when people talk about like an adversarial mindset that prosecutors just want to win, this seems extreme. I was surprised that it got so deep into him that he could never change his mind about it. Even after all the hidden evidence, he still believed it. Yeah, so I asked Connick, you know, we're. Aren't you ever worried that someone could have been wrongfully charged and convicted and sent to death row on your watch?

I wasn't even talking specifically about John's case. I was just wondering if it was conceivable that that could have happened. Didn't you worry about that? I don't know whether, and I don't care what your religions are, but if you're Catholic, and you don't want to understand the state of grace. That is, be acceptable when your time comes. Well, if I do something like deny a person his individual rights, that would be a sin. Well, a serious sin.

And I have never done anything during my 30 years in office that requires me to go to confession. Never, never. And whether that means anything to anybody or not, but it means something to me. Connick left office in 2003, but his wife. successor decided to appeal John's $14 million award to try to get out of paying it. And that appeal went all the way up to the Supreme Court. This case comes to us on a writ of certiorari to the United States Court of Appeals for the Fifth Circuit. Now, the Supreme Court, they created the Brady rule, so you probably think that they would

be pretty interested in punishing a DA who so clearly violated it. He alleged that the district attorney failed to train the prosecutors adequately about their constitutional duty under Brady to produce exculpatory evidence. But, surprisingly, the Supreme Court sided with the DA. In an opinion filed with the clerk today, we reverse the judgment of the Court of Appeals. Under our precedents, a plaintiff seeking to hold the government liable for failure to train must show deliberate indifference. In a five to four decision written by Justice Clarence Thomas, the court held that a district

attorney's office that has failed to train its prosecutors cannot be held liable when one of those prosecutors commits a Brady violation. This was a big deal. Legal commentators were stunned. One called it, quote, one of the meanest Supreme Court decisions ever. The $14 million disappeared, and so did John's feeling that he had been vindicated. The highest code in the line said, fuck you. We ain't getting your shit. We don't allow this. We don't want to open this little. We don't want to open. open this flood gate to having every district attorney be scared. Now this is what got me.

Having, this was the code say, having a district attorney to be scared to prosecute cases if they allow my war to stand, meaning that we don't want to have every district attorney living under fear that he's going to be sued. Wow, for real. So we're good with him killing innocent people. As long as he don't have the fear of prosecuting the case. Wow. So why would the Supreme Court let this happen?

Why would they not allow the DA's office to be punished, or at least allow John to be compensated, when it was so clear that Brady had been violated? Why did they let these prosecutors off the hook? Well, in its decision, the court says, there are other remedies for holding prosecutors accountable. But in reality, not really. We already know the prosecutors have personal immunity from civil liability. They could, in theory, be charged criminally. and the Bar Association could take away their licenses.

But in practice, this just doesn't happen. In fact, weirdly, in this case, the only person who was ever punished was the whistleblower, Mike Realman. He was punished for not reporting the information sooner, and his only punishment was a quote-unquote public reprimand. I didn't commit a Brady violation. I failed to report a Brady violation timely.

But I wouldn't even have prosecuted when this case happened. You know. You weren't even in the office. No. I mean, it was prior to my becoming an assistant DA by like a year and a half. Do you feel like you were sort of penalized for doing the right thing? Not really. I mean, a reprimand, honestly, is, I mean, the Supreme Court's not offended,

but it's not that big a deal to me that they gave me a reprimand. Been reprimanded by my wife plenty of times. You used to do it. The two lead prosecutors on the case, including the one who had a mini electric chair on his desk with John's face on it, they never received any sanctions or punishment at all. Both of them are still practicing today. If you ask most people what the job of a prosecutor is, they're going to say to win cases, to put bad people in jail. But whether they know it or not, that isn't their job. The American Bar Association says that prosecutors should seek justice.

not win convictions. But what this and many, many other cases show is that it just doesn't work that way in practice. They want to win. So this is why we have rules like Brady. They're in place to try to check that impulse, to ensure that prosecutors give over any information that the defense might need in order to do its job.

So if prosecutors know that there are no consequences for violating Brady, they might just keep doing it. When we talked to Harry Connick Sr. about this, the retired New Orleans DA, he actually acknowledged how little the average voter knows about how the criminal justice system even works. You know what? The people on the street really don't, in the abstract, they may, they want justice, and that's right. But what happens when they elect the DA, they have no idea who they voting for. You know, they have no idea what happens, you know, they get on the jury, they find, out some things about it. But that's the way Americans are. We will let somebody else do something.

There's nothing wrong with that. But we expect them to do the honorable right thing at the right time. And we don't always do that, you know, because we're human beings. We have a free will and we have dispositions that are influenced by so many different factors. But the truth is the truth. On this one narrow point, Connick and Thompson actually seemed to be an agreement. The system, in theory, depends on prosecutors being fair, but the system in practice incentivizes prosecutors to win. If I'm a fair player, if I'm a man of integrity, and I'm a prosecutor, that means I'm not going to believe everything that's put before me, right? And then, if 80% of the cases that put before me, I don't believe in them kicking them. down. What you think going to happen

to me? They're going to get rid of me. That's the level of of our criminal justice system that we fail and to realize that the prosecutor have to win. It's mandatory that he win because of

his career, not because of nothing else. It's because of who want a high loser. I'm a law firm. I'm suing people. I'm winning millions of millions. What the fuck, you come ask me for a job? You lost every goddamn case. You're the problem.

Get the hell out of here. So as American people, I'm sorry, y'all. We put them in a position where they got to win to be successful in that field. If you're working in the prosecutor office, I don't want to hear. You know the fucker. You did something wrong. Well, you said something interesting, though. You said, as the American people, we put them in that position.

You think, in some ways, the guilt's on all of us. Yes, without a doubt. Because we don't have nothing in place to demand his ass do the right thing. Yeah, it's on us. After getting out of prison, John got married, started over. He founded Resurrection After Exoneration, an organization to help exonerese get back on their feet. He advocated for reform of the prosecutorial system and punishments for prosecutors. He stayed in New Orleans, or sometimes he'd run into the former district attorney, Harry Connick, in the grocery store.

My wife is just crazy about shopping and Sam's. I don't like Sam, but my wife is crazy about it. And that's right out there by his house. So that's the only grossest story. God damn, I'd be damaged every time I go in that motherfucker, I don't run across his head. And one time, the bastard, he's so old, and he'd be doing all kinds of, taking all.

One time I ran my basket into this shit, just on JP, just to see if he's going to recognize me in my paper. And he never recognized you. Never. Never said anything. Yeah, I told him one time. I said, it's the wrong thing what you did, John Thompson. That's what I tell you.

It's the wrong thing what you did, John Thompson. I don't even really know if he recognized. I don't reason why he recognized the name because y'all called as a reporter's and said that. But I bet if y'all was he just called and said, oh, Mr. Conner, you know John Thompson? John Thompson? I can imagine that. The late John Thompson.

He died of a heart attack in 2017 at the age of 55. Harry Connick, Sr. lives in New Orleans. Andrew Moran's a staff writer at The New Yorker reported with Sarah Lusbader of the Fair Punishment Project and with Catherine Wells. Our story was produced in 2018 by Catherine in collaboration with radio labs, more perfect. Special thanks to Susie Lechtenberg. Saur, I want to wrap this up with you.

You're a former defense attorney, and now you're an advocate for criminal justice reform. In your mind, what would give us fairer and better trials? What's the top priority? So there's like a big answer and a small answer. And I'm going to start with the small one. The small answer, it sounds technical, but it would make a really big difference. It's called open file discovery. And that's something that actually is practiced to a certain extent in little pockets across the country.

And what that means is whatever the prosecutors have, the defense has. That's it. Some people have actually proposed that judges get more involved earlier in the case so that the judges can actually be that person looking over the prosecutor's shoulder. I think that's great too. So those are procedural fixes that actually could make a huge difference. In a bigger sense, though, if we think about what we as a society are asking from our prosecutors, I think we have to do a better job of informing ourselves. And it's only within the last year or two that people are starting to ask, hey, what's going on?

The system seems pretty unfair. And how much does my prosecutor have to do with that unfairness? And that's why we've seen a wave of prosecutors actually winning elections and unseeding people on a platform of making the system fairer. So basically it used to be that like the tougher on crime you were the better, right? You were just as a prosecutor, if you wanted to get reelected, you had to just lock people up

and throw away the key. The tougher the better. But now you're saying that's changing a little bit? It's starting to change. Voters in some places, even red states, are voting out the old John Wayne model and they're opting for prosecutors who campaigned on how they want a fairer system. As a public defender,

I worked with lots of prosecutors and by and large, they wanted to do the right thing. But they were encouraged to win. That was the culture. If we want to change that culture, it's not just a matter of individual prosecutors acting better. It's honest to make sure that they understand that their job is to do justice, and to make sure that their bosses set the right incentives for their offices. That's Sarah Lusbader. And this is the New Yorker Radio Hour. I'm David Remnick, and I want to thank you for joining us, and I hope you'll join us next time. The New Yorker Radio Hour is a co-production of

of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Yards with additional music by Lexus Quadrado. This episode was produced with help from Johnny Vince Evans. John Holloway's book, Killing Time, was a resource in our reporting on John Thompson's case. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.