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Prosecutorial Immunity: Deconstructing Connick V TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM TRANSCRIPT OF PRESENTATIONS – PROSECUTORIAL IMMUNITY: DECONSTRUCTING CONNICK V. THOMPSON In November 2011, the Journal hosted a symposium on Prosecutorial Immunity at Loyola University New Orleans College of Law. The symposium included an in depth analysis of Connick v. Thompson. The following transcript consists of the speakers’ remarks along with audience participation and questions. The Journal has attempted to preserve the character and substance of the discussion. While this is not a traditional Article, the Journal felt that it would be fitting to include it in its Spring volume. PROFESSOR IMRE SZALAI, LOYOLA UNIVERSITY NEW ORLEANS COLLEGE OF LAW (MODERATOR): Good afternoon. Welcome. I’d like to extend a warm welcome and a special thanks to our dean. And thanks to the audience, the staff, the students, and to Loyola’s Journal of Public Interest Law. Thanks for your tremendous help. And a very special thanks to all of our speakers. And a special, special thanks to Mr. Thompson. He’ll be here later today, and this is just an incredible educational opportunity for our students to learn about the personal side of the law. Thank you, everyone, for coming. And the symposium is—on its surface, the case involves a narrow issue. When can a governmental body be liable for a civil rights violation? This case involves so many other issues. I think you can think of a whole ethics course on this case. Thank you everyone for coming. Just a quick administrative note. We have a lot of speakers and we’ll try to sit through a tight schedule. We’ll try to take questions from the audience. If you have a question, come up to the podium. We’re hoping for one or two questions per speaker. I’d 305 TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM 306 Loyola Journal of Public Interest Law [Vol. 13 like to introduce our keynote speaker, Mr. Barry Scheck1. He is the co-director of the Innocence Project. He has received countless awards. He is really an inspiration to an entire generation of students. BARRY SCHECK: Permit me to start by thanking all the investigators, all the lawyers who made the exoneration possible. Forgive me for leaving out the many who should be included, but the list includes the usual suspects for the struggles of justice in Louisiana and that would be investigators Gary Eldridge, Lisa Oppopla, probably Clive Stafford Smith, Emily Bolton, who founded the Innocence Project in New Orleans.2 All the young, wonderful spirits that animate the New Orleans Innocence Project. And at the head of the line in the John Thompson case, we have the heroic Michael Banks and [J. Gordon] Cooney, [Jr.,]3 for working on John’s case for more than a decade. For a marvelous day-by-day account on this case, read the book Killing Time.4 It ends with him getting out of prison; it doesn’t tell you about the civil case.5 But it’s a wonderful book to read to give a 1. Professor Barry Scheck, Benjamin N. Cardozo School of Law and co-director, Innocence Project, Keynote Address at the Loyola University New Orleans College of Law Journal of Public Interest Law Symposium: Prosecutorial Immunity: Deconstructing Connick v. Thompson (Nov. 3, 2011). 2. Innocence Project New Orleans (IPNO) is a nonprofit law office that represents innocent prisoners serving life sentences in Louisiana and Mississippi, and assists them with their transition into the free world upon their release. IPNO works with legislators, judges, lawyers, law enforcement and policymakers to protect the innocent within the criminal justice system. Since its inception in 2001, IPNO has freed 20 wrongfully convicted prisoners and cleared the name of one other man who died in prison, eight years before DNA exonerated him. INNOCENCE PROJECT NEW ORLEANS, http://www.ip-no.org (last visited Mar. 6, 2012). 3. Partners at Morgan Lewis, LLP, who represented John Thompson in both his criminal retrial and his civil suit against the prosecutor’s office. Mr. Banks is a partner in the firm’s Labor and Employment and Litigation Practice group. He has litigated a wide range of employment, benefits, trade secret, commercial, professional liability, and personal injury issues in state and federal courts. Mr. Cooney is Managing Partner of the firm’s Philadelphia office and practices a broad variety of commercial and civil litigation, with particular emphasis on the defense of class actions in state and federal courts. Their representation of John Thompson began as a pro bono assignment for the firm. Over the roughly decade long fight, they won his full acquittal and a $14 million damage award for the misconduct of the prosecutor’s office that the United States Supreme Court overturned. 4. JOHN HOLLWAY & RONALD M. GAUTHIER, KILLING TIME: AN 18-YEAR ODYSSEY FROM DEATH ROW TO FREEDOM (Skyhorse Publishing, 2010). 5. Connick v. Thompson, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011) (reversing the Fifth Circuit’s decision and holding that the misconduct of Connick’s office did not amount to a “pattern” necessary to penetrate the office’s immunity from civil suit under 42 U.S.C. § 1983), reversing 578 F.3d 293 (5th Cir. 2009) (sitting en banc, a TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM 2012] Transcript of Presentations 307 sense of the inside base of the practice of law and these kind of exonerations. Let me thank John Thompson for his courage and generous spirit and unyielding determination to make sure that no other innocent is convicted by the same prosecutorial misconduct. The Innocence Project,6 the Veritas Initiative,7 and the New Orleans Innocence Project8 announced last week at the national press club that we are commencing a multi-city tour on the John Thompson case to begin a dialogue with bar disciplinary officials with the defense bar and the public to address the problem of what can be realistically done to prevent prosecutorial misconduct in the wake of the Connick versus Thompson decision, which is the death nail to civil suits.9 And prosecutors have absolute immunity for conduct that occurs during the adversarial process.10 For the lay people in the audience, there’s a case that prevents civil lawsuits even for the worst kind of criminal conduct when it is done within the adversarial context. So as I said we are beginning this tour. And that tour begins here in New Orleans at Loyola at this conference as well it should. And we will be visiting law schools in Texas, Arizona, California, and at each site with the assistance of a moderator. And we-hope and I feel certain-the active participation of prosecutors in each area, members of the bar discipline counsel, judges, the defense bar, we will systematically address a series of issues to see what really can work to [solve] this problem of prosecutorial misconduct. The objective is not to pillory prosecutors in general or suggest that what happened to John Thompson’s case is typical of what happens on an everyday basis. On the other hand, we can’t pretend that what happened to John divided court vacated the previous panel opinion and affirmed the district court’s upholding of Thompson’s $14 million damage award). 6. “The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent future injustice.” INNOCENCE PROJECT, http://www.innocenceproject.org/ (last visited May 16, 2012). 7. The Veritas Initiative is an extension of the Northern California Innocence Project (NCIP) that seeks to illuminate the serious problem of prosecutorial misconduct in the criminal justice system today. The organization lauds itself as “NCIP’s investigative watchdog organization devoted to advancing integrity of our justice system through research and data-driven reform, using the work of our preeminent experts in the field.” THE VERITAS INITIATIVE, http://www.veritasinitiative.org/about/mission-statement/ (last visited Mar. 6, 2012). 8. INNOCENCE PROJECT NEW ORLEANS, supra note 2. 9. Connick v. Thompson, supra note 5. 10. Id. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM 308 Loyola Journal of Public Interest Law [Vol. 13 Thompson is a one-time thing. By the way, [I] read yesterday’s article by Adam Liptak in the New York Times11 and the case that is going to be argued on Wednesday.12 It’s odd when the brief says, there are 28 acts of prosecutorial misconduct and then the other side says there are only 13.13 We’re not talking about anecdotes here. We’re talking about a systemic problem. I’m not saying it’s epidemic, but we have to talk seriously about it. What John Thompson wants is a serious, thoughtful discussion conducted without rancor that yields real proposals for a forum. And at the end of our tour, 16 months from now, we will attempt with an advisory committee to issue recommendations that can make a difference. We’ll be talking about the need for internal review programs for the prosecutor’s office to distinguish between error and misconduct and independent entities to remedy and sanction misconduct. It applies to defense lawyers also. And we have to go look at defender institutions. We have to look at court-appointed lawyer systems. There are different considerations that are appropriate to the different roles that prosecutors and defense lawyers play in our justice system. The solutions are not going to be perfectly symmetrical. But make no mistake, John Thompson’s defense was problematic.
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