10/03/2010 10:46 pm ET Updated May 25, 2011

Deliberative Indifference

On October 6, 2010, the United States Supreme Court will hear the case of Thompson v. Connick, a civil lawsuit brought against the New Orleans DA's Office by John Thompson, who spent 18 years in Louisiana prison (14 of them on Death Row) for a murder and an unrelated carjacking that he did not commit. On the surface, the case is about whether or not Thompson is entitled to the $14 million award he got from a New Orleans federal court jury, which found that then-DA Harry Connick, Sr. (yes, the father of that Harry Connick) had shown "deliberate indifference" to educate his prosecutors about what evidence they had to share with defense lawyers, and further found that because of Connick's policies -- or lack thereof -- John Thompson lost 18 years of his life.

Presumably, we hold elected officials accountable for their actions when they come up for re-election. But Thompson v. Connick really asks another question: when should we be able to hold our government responsible for the actions of elected officials?

The Supreme Court has said that municipalities can be held liable when the key policymaker in the office -- in this case, Connick -- fails to train his staff about how to properly do their job, and a predictable and direct injury results. (One example: a police chief who fails to train his officers about when and when not to use deadly force.) Orleans Parish is seeking absolute immunity from such prosecution.

Thompson disagrees, and has assembled an impressive array of "friends of the court" briefs in support of his position, including a star-studded group of former state and federal prosecutors, including former U.S. Solicitor General (under the distinctly law-and-order George W. Bush) Paul Clement, who are willing to hold themselves to a higher standard than their colleagues in Orleans Parish. Clement et al. argue that while it shouldn't be easy to sue a prosecutor's office, there must be some level of accountability -- some actions sufficiently glaring that they create an obligation to compensate an honest citizen whose life is taken away.

That would mean that Orleans Parish could be liable if (a) Connick either intentionally told his DAs to hide evidence or (b) he was "deliberately indifferent" to a requirement to make sure his lawyers knew the rules of evidence and how to apply them. Using that standard, did the jury in Thompson v. Connick get it right?

There is no evidence that Connick actively encouraged the three Assistant DAs he appointed to run John Thompson's criminal case to do what they did. (Here's what they did: they conducted a blood test on Thompson without telling anyone, and then they destroyed the blood samples and hid the blood test without telling defense attorneys about it. They also refused to turn over police reports that would have disclosed a number of witnesses that Thompson's defense lawyers never knew existed.) But there is another story that shows Connick's true measure, and shows us how "deliberate indifference" could cause an innocent man to lose 18 years of his life.

After discovering the buried blood test, Thompson's lawyers spent a few days investigating its authenticity. When satisfied, they asked for a private meeting with Harry Connick, Sr. Connick, the consummate politician, called a press conference the next day, decried what had happened to Thompson, and publicly announced a Grand Jury investigation of his own office. He asked one of his junior ADAs, Jerry Glas, to be part of the team investigating what had happened with the blood test. Glas was a dedicated and decorated ADA, someone who believed passionately in his work. He promised the Grand Jury that this investigation was not a political show, but an earnest effort by the DA's Office to understand the truth and right a wrong.

Eight days later, Glas resigned from the Orleans Parish District Attorney's Office. At the time, he said simply that "the sole reason" for his departure was a "matter of principle" related to the Grand Jury investigation. Grand Jury investigations are held under strict confidentiality rules, and while a couple of editorials were written in New Orleans newspapers about the suspicious turn of events, the news passed quickly.

Not until 2007 did Glas finally tell the whole story, this time under oath before a jury in the Thompson v. Connick civil trial. Glas had completed most of his investigation, and and at an evening meeting on May 5, 1999 with Connick, other Assistant DAs, and an outside attorney representing DA's Office, Glas recommended that one of the DA's on Thompson's case, Jim Williams, be indicted for his actions. He hoped to use the indictment to get additional evidence on the most senior prosecutor, Eric Dubelier, at the time the third most senior ADA in the office. (The third prosecutor, Gerry Deegan, had died). Glas was convinced based on his investigation that Williams had known about the blood test conducted on Thompson, had received the test results, and had participated in its concealment and the destruction of the original blood samples. Glas begged Connick to let him present this evidence to the Grand Jury the next day and to see how far up the chain of command the corruption went.

Connick listened to all the evidence, considered it, and told Glas that he would not be permitted to present a single piece of evidence to the Grand Jury the next day, because Connick was going to shut the Grand Jury down. Glas, the sole breadwinner for his wife and young son, was so outraged that he quit his job the next morning. Connick's dismissal of the Grand Jury surprisingly lacked the public fanfare that had marked its commission.

In the end, Eric Dubelier, Jim Williams, and Gerry Deegan, have avoided any and all punishment. No criminal charges were filed, and Connick never filed an ethics complaints with the Louisiana Bar Association. He did, however, file ethics charges against the one ADA who gave assistance to Thompson's lawyers as they investigated the blood test: Mike Riehlmann signed an affidavit swearing that Gerry Deegan, on his deathbed, had confessed to destroying the evidence and withholding the blood test. Connick told the state ethics board that Riehlmann had known about the hiding of Thompson's blood test for five years before coming forward, in violation of his ethical obligations. Riehlmann lose his license to practice for 6 months as a result.

According to the Innocence Project, a nationwide group that exists to help reverse wrongful convictions, the Connick DA's Office was one of the worst in the nation at turning over evidence to defense lawyers. No fewer than 36 men convicted in Orleans Parish during Connick's 30-year tenure have made allegations of prosecutorial misconduct, and nineteen have had their sentences overturned or reduced as a result. And new cases are still turning up, like the case of Booker Diggins, whose conviction for rape and armed robbery may soon be overturned now that a blood test and semen sample in the possession of prosecutors during his 1988 trial have been discovered.

John Thompson is one of the "lucky" ones -- after 18 years in prison, he's gotten his life back. New Orleans released him with $10 and the clothes he was arrested in in 1984. A federal jury tried to right that wrong, and provide our communities with a tool to hold men like Connick accountable for their actions -- we'll have to see if the Supreme Court agrees.