Lewis Lawyers Win Stay For Death Row Client
Investigators uncover DA misconduct in 15-year-old New Orleans case
Only weeks before their client was scheduled to be put to death, two Morgan Lewis & Bockius partners convinced a court to stay his execution after uncovering evidence of prosecutorial misconduct that they hope will lead to a new trial for a New Orleans man convicted of a murder 15 years ago.
Michael Banks and Gordon Cooney Jr. have been handling the appeal process of John Thompson on a pro bono basis since 1988 through the Loyola Capital Defense Fund, which coordinates defenses for indigent death row inmates. In recent years Morgan Lewis associates John Gorman and Michael Eagles have assisted the two partners.
With all state and federal appeals exhausted in the case, Thompson was scheduled to die May 20. Banks and Cooney, though, secured the services of a private detective to see if there was any new evidence that had yet to be uncovered as time ticked away on their client's life.
What they found was nothing short of a bombshell. Prosecutors from the New Orleans district attorney's office apparently withheld physical evidence that could have exonerated Thompson in an unrelated robbery conviction that wound up playing a huge role in his murder sentencing.
Thompson was arrested along with a co-defendant for the Dec. 8, 1984, shooting death of hotel executive Ray Liuzza. After Thompson's his arrest, media coverage led three young people who were carjacked and robbed just weeks after the murder to accuse Thompson of that crime. He was soon charged with the robbery.
Even though the murder arrest occurred first, New Orleans prosecutors quickly arranged to delay the murder trial until the robbery trial was completed. Banks said the tactic was designed to cause problems for his client during the sentencing phase of the murder trial.
"What the DA's office did was very manipulative," Banks said. "After he gets convicted of the robbery [and sentenced to 49 years in prison], that basically keeps him from testifying on his own behalf during the guilt phase of his murder trial because the robbery conviction could be brought up if he did. And during the sentencing phase, the robbery victims take the stand, and the DA presents him as a violent felon who already will be spending 49 years in prison anyway."
What the investigator hired by the Morgan Lewis attorneys uncovered two weeks ago was a police report from the robbery incident which revealed the existence of a bloody pair of pants worn by one of the victims. The blood was from the assailant but did not match Thompson's type.
Banks said records showed that prosecutors checked physical evidence out of a storage locker before the robbery trial, but never returned the bloody pants after its completion. The documents also indicated that prosecutors in both the robbery and murder cases were aware of the pants' existence.
"I've been down to New Orleans three times in the past two weeks," Banks said. "When we first came about the information, we asked one of the prosecutors in the case about it and he denied it. So we went to a [former] ADA who screened the [robbery] case and he said he wanted to talk so I flew down again. He said he knew of at least one DA who admitted to concealing it."
The paper trail that led to the missing blood evidence may clear Thompson of the armed robbery and caused New Orleans District Attorney Harry Connick, for the first time in his 25 years on the job, to join the defense in a request to stay an execution.
The stay was granted, and a grand jury probe has begun to determine the level of misconduct by prosecutors. Banks and Cooney say their next legal move does not hinge on the grand jury's findings. They want the robbery conviction reversed and a new murder trial for Thompson, who has steadfastly denied committing the murder and has refused all proposed plea agreements.
This is the first death penalty case for Banks and Cooney, who normally handle employment litigation and commercial litigation, respectively. During the 11 years they have dedicated to the case, the pair forfeited hundreds of thousands of dollars worth of potential billable hours. But Banks says it has been worth it.
"Gordon and I have been through an emotional roller coaster with this case," he said. "Sometimes it has been hard to concentrate on our work when you have the execution of someone you've grown to like looming over you. But it's been a real rewarding experience."
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