Law Review: Holding prosecutors accountable

John Thompson spent 14 years on death row in Louisiana's notorious Angola state prison before he was sprung by two Philadelphia lawyers acting on a hunch.

Only hours after a Louisiana state judge issued a writ of execution for Thompson, a private investigator sent by his lawyers to search the files of the New Orleans district attorney found blood evidence showing that Thompson was not guilty of one of the charges. The murder conviction was overturned and Thompson won a $14 million jury award in a lawsuit alleging prosecutorial misconduct.

Thompson, 49, now is the point man for a national movement seeking to hold prosecutors accountable for their mistakes, and he told his story Monday in the opulent offices of Philadelphia's Montgomery McCracken Walker & Rhoads L.L.P. law firm. New Orleans prosecutors needed to nail someone for the murder of a member of a prominent New Orleans family and Thompson says he was the fall guy.

"I wonder what it will take for people to wake up and uphold this great system of ours because I do believe it is a great system," said Thompson, who is uncommonly gracious despite his ordeal (his scheduled execution date was to have been the day before his son's high school graduation).

"There was a lot of pressure on the police and the D.A. to solve this crime."

In the last decade, DNA evidence has shined a powerful spotlight on prosecutorial misconduct, winning the release of hundreds of wrongfully convicted people. That has triggered an important national debate on the need for holding these all-powerful public servants to the highest possible standards. Thompson's case is particularly poignant because the U.S. Supreme Court last year overturned his $14 million award for wrongful prosecution, saying such suits would open a Pandora's box of challenges to prosecutors that would hobble law enforcement.

But the problem goes well beyond Thompson, or any one criminal case. And it is by no means limited to street crime. It happens regularly in white-collar crime cases, and the results are often devastating.

Any white-collar defense lawyer will tell you that he or she has represented business clients who came within a hair of indictment because prosecutors didn't entirely grasp what had happened and reversed themselves only after heavy lobbying by defense counsel.

That was the case with the Arthur Andersen L.L.P. accounting and consulting firm in 2001. The Houston office of Andersen was the auditor and accountant for Enron, the erstwhile energy industry miscreant, at the time Enron imploded. Enron's collapse destroyed the retirement funds of tens of thousands of middle-age and elderly Americans.

After Enron's finances began receiving scrutiny, a handful of Andersen employees in the Houston office and in Chicago began shredding documents and deleting e-mails.

The Justice Department Criminal Division, then headed by Michael Chertoff, a former U.S. attorney in New Jersey and later a head of the Department of Homeland Security, won an obstruction-of-justice indictment from a federal grand jury. That was a death sentence for the Andersen firm. Clients began fleeing, and a short time after its conviction, Andersen went out of business.

From the start, there were problems with the prosecution. Though the indictment suggested a systemic effort at Andersen to obstruct the SEC probe, the actual document destruction was limited to a handful of employees in Houston and Chicago. Many Andersen partners, including those in Philadelphia, where the firm had hundreds of employees, rightly asked why they lost their jobs because of the alleged wrongdoing of employees in other offices. In 2005, the U.S. Supreme Court threw out the conviction, saying the feds' case was weak.

One might reasonably ask what possible connection there might be between a poor black man in New Orleans railroaded in a prominent murder investigation, and a bunch of highly paid accountants and consultants who lost their jobs when the Department of Justice blew up their business.

Both were victims of prosecutorial mistakes.

Just as important, prosecutors made those mistakes amid a public clamor for arrests.

In Thompson's case, police were spurred by public outrage over the killing of the son of a prominent businessman. It was only through his own perseverance and the persistence of his lawyers, J. Gordon Cooney Jr. and Michael Banks of Center City's Morgan, Lewis & Bockius L.L.P., that Thompson is alive to tell about it.

In the Andersen case, the Bush administration, under pressure to respond to a series of high-profile corporate scandals and plummeting stock market values, signaled that it wanted to crack down hard on corporate America.

In both cases, police and prosecutors got the message.

Anne Poulin, a professor of criminal procedure at the Villanova University law school and a board member of the Pennsylvania Innocence Project, which seeks the exoneration of convicted death-row inmates, said the need for accountability spans the spectrum of law enforcement, from the prosecution of street crime to C-suite - or corporate-level - abuses. Prosecutors, by definition, must do their work behind closed doors. Yet it is exactly the opaque nature of their work that can lead to abuses.

The problem, Poulin said, is that the options for holding them accountable are few. The attorney disciplinary system hasn't worked in this regard, she said. And in the Thompson case, the Supreme Court apparently has blocked use of the civil justice system.

"There is a huge area of prosecutorial discretion that is unscrutinized and unreviewed," Poulin said. "The best we can hope for is to up the level of performance in prosecutors' offices."