Prosecutorial Injustice in the Criminal Justice System

In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison. Twenty-five years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense. The Iowa Supreme Court vacated Harrington’s sentence, and McGhee pleaded guilty to a lesser charge in exchange for time served. Both prisoners were freed.

In December 1984, Raymond Liuzza, a prominent businessman in New Orleans, was killed outside his home. Three weeks later, a college student, Jay LaGarde, was a victim of an attempted armed robbery in his car. In January 1985, John Thompson, along with his co-defendant Kevin Freeman, was arrested and charged with the Liuzza murder. When Thompson’s photograph appeared in the newspaper following his arrest, the father of the LaGarde wondered whether this was the man who had robbed his son three weeks earlier. The father contacted the district attorney’s office, and Thompson was charged with armed robbery.

The prosecutors decided to use the armed robbery charge to the their advantage in the murder case. They switched the order of the trials so they could secure a conviction for armed robbery and use it against Thompson in the murder case. Based solely on the weak identification by LaGarde, Thompson was convicted of attempted armed robbery and sentenced to 49½ years in prison. Unbeknownst to Thompson and his attorneys, the district attorney’s office possessed blood evidence that would have exonerated him of the robbery.

Three weeks after the armed-robbery trial, Thompson was tried and convicted of the Liuzza murder. The prosecutors’ strategy of obtaining an armed-robbery conviction worked as planned. Thompson, who was accused at trial of selling the murder weapon and the victim’s ring, was effectively precluded from taking the witness stand to explain what really happened—that he had bought the ring and gun from the real killer, Kevin Freeman. Freeman, meanwhile, was free to testify without contradiction that he saw Thompson shoot Liuzza and that he (Freeman) fled the scene. The jury convicted Thompson of the murder.

At the penalty phase, prosecutors argued that Thompson was already serving a near-life sentence for the armed robbery and urged the jury that the only way to punish him for the murder was to execute him. The jury sentenced Thompson to death.

A final execution date was set for May 20, 1999. Just weeks before the execution, Thompson’s attorneys independently discovered one of many pieces of evidence that had not been produced to the defense at the time of the original trials: a crime-laboratory report addressed to one of the prosecutors. The report revealed that blood from Jay LaGarde’s pant leg— which prosecutors knew came from the perpetrator— had been tested at the prosecutors’ request and determined to be type “B.” John Thompson’s blood is type “O.” This evidence completely exonerated Thompson of the armed robbery.

After Thompson’s attorneys discovered a mountain of other evidence that exonerated Thompson of the murder, none of which the prosecutors had ever made available to Thompson’s original attorneys as they were required to do by law, Thompson also won a new trial on his murder conviction. At the conclusion of evidence, in which Thompson testified and all the newly discovered evidence that the first jury never got to see was presented, the second jury deliberating for only 35 minutes before delivering a not guilty verdict.

Thompson spent 14 years in solitary confinement while on death row. A civil jury has awarded him $14 Million against the state of Louisiana, One Million Dollars for each year he spent in solitary.

Last week USA Today published the results of a six-month investigation into prosecutorial misconduct. What they found has been described as a pattern of “serious, glaring misconduct.”

While the John Thompson, Curtis McGhee and Terry Harrington matters were prosecutions in the States of Louisiana and Iowa, the USA Today investigation was focusing exclusively on the federal criminal justice system. Reason Magazine’s Radley Balko says,

The … problem is that we have a federal criminal justice system that can be so easily manipulated in the first place. The number of federal laws reaches well into the thousands, and it’s growing. Many are so broadly written they allow prosecutors to ring just about anyone they please up on federal charges. This creates a system driven by politics, not justice. It makes criminals out of all of us, making actual enforcement of the law arbitrary and corruptible. Worse, every incentive for a federal prosecutor pushes in the direction of winning convictions, with little if any sanction for crossing ethical and legal boundaries in the process. It’s a system that’s not only ripe for abuse, but that actually rewards it.

Lawyers and Bar Associations are quick to say that a prosecutor is not supposed to simply seek as many convictions as possible, because he or she has a duty that other lawyers arguably do not — to seek justice. Public Choice Theory, for which James Buchanan won a Nobel Prize in economics, shows the folly of believing any such thing. Says Balko,

[P]ublic choice theory teaches us that public servants act in their own interest in the same way private sector workers do. There’s nothing transformative about working in a DA’s office as opposed to, say, a white shoe law firm. You don’t shed self-interest to become purely noble and altruistic once you’re sworn into office. If anything, prosecutors should be given more scrutiny and oversight than other members of the legal profession. Private lawyers at best can influence courts and government officials to move money around. Prosecutors put people in prison and, in some cases, send defendants to their deaths. When they cheat, there ought to be consequences.

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