The Editor interviews Michael L. Banks and J. Gordon Cooney, Jr., Partners at Morgan, Lewis & Bockius LLP.

BODY:

Editor: As a result of your pro bono work, John Thompson narrowly escaped execution for a murder he did not commit. What led to this dramatic event?

Banks: The initial lynchpin to our success was proving that John was not responsible for an unrelated carjacking that effectively prevented him from testifying in his own defense during the murder trial. The carjacking occurred on December 28, 1984. Three weeks later, on January 17, 1985, John was arrested with a codefendant, Kevin Freeman, for the murder of hotel executive Ray Liuzza, Jr., which occurred in the early morning hours of December 6, 1984.

The carjacking involved three LaGarde children. A young black man jumped into their car and told them to drive off. The older brother intentionally crashed the car and kicked the perpetrator in the face as they struggled. The perpetrator then fled.

When John was arrested for Mr. Liuzza's murder, the father of the LaGarde children showed two of them John's picture on the front page of The Times-Picayune. He asked them, "Is this the man who hijacked your car?" The children tentatively said, "Yes." The family called the police, and John was arrested for the carjacking. In April 1985, the state successfully prosecuted
the carjacking case based primarily on the testimony of one of the LaGarde children, who in tears pointed to John saying, "That is the man who hijacked our car and would have killed us if our brother had not saved us."

The carjacking arrest was important to the prosecution. Unlike many murder suspects, John had no record of any crime of violence. The prosecution successfully moved the court to reverse the order of the carjacking and murder trials. This was important to the prosecution because, under Louisiana law, the
conviction for the carjacking could come into evidence if John testified in the guilt phase of the murder trial. Regardless of whether John took the stand, the conviction could be presented during the penalty phase.

Without being able to take the stand in the murder trial, John was not able to explain how he had bought from Freeman a ring that had belonged to the murder victim and the gun that the prosecution alleged was used in the murder. Without his testimony, the jury was left with the unrebutted inference that they were in his possession because he committed the crime. John was convicted and sentenced to death.

Cooney: We became involved in John's post-conviction appeals in 1998. Working continually through April 1999, we exhausted the habeas corpus options through the state and federal courts for both the carjacking and murder cases. Although we had a private investigator chasing a few possible issues and were preparing for a clemency hearing, we were not at all optimistic. We traveled to the Angola Prison in Baton Rouge and told John that he was likely to die in 30 days.

Driving from the prison to New Orleans to meet John's family and prepare our appeal to the Louisiana Governor for clemency, we got a voice mail from our investigator saying, "I found it."

Our investigator found a memorandum from the New Orleans crime lab to the district attorney dated two days before the carjacking trial. The lab reported that bloody material had been removed from the crime scene and the perpetrator had Type B blood. John has Type O blood. Without question, John was not the hijacker. Also without question, the district attorney's office had the exonerating evidence in its possession two days before the trial, but chose not to produce it.

We located a former prosecutor who was a social friend of one of the trial prosecutors. He gave us an affidavit testifying that the trial prosecutor admitted to him that the blood evidence had been intentionally concealed in the carjacking case.

Editor: In light of the exonerating evidence, did the state concur in your motion to set aside the carjacking conviction?

Cooney: The state concurred, but the judge wanted a full evidentiary hearing for a public airing of the circumstances. Following a remarkable hearing in late June of 1999, the judge set aside the carjacking conviction. He noted his disappointment and disgust with the way the district attorney's office handled the original trial.

Banks: The state then granted us full access to its files so that we could reinvestigate the murder case. We contacted all the witnesses mentioned in the various police reports. Several who were quite helpful had never been identified for the defense in 1985.

For example, one said that she had seen the fleeing perpetrator from a distance of a few feet and was convinced it was not John. He is about 5 feet 8 inches tall and at the time had a large Afro. Freeman was six feet tall and nicknamed Kojak, in part because he wore his hair exceptionally short. The woman
was adamant about her identification. The perpetrator and she made eye contact as he ran below her balcony. She was afraid because he knew where she lived. She broke her lease and moved away three weeks later.

In addition, we uncovered a number of documents, also never given to the defense, that were completely inconsistent with the evidence presented by the state at the first murder trial.

Editor: As well as having exonerating evidence, what constitutional arguments did you present in seeking a new trial in the murder case?

Cooney: We argued the cumulative weight of the concealed evidence was so overwhelming that it undermined confidence in the verdict and clearly demonstrated Freeman's guilt. We also argued that John's right to testify was abridged by the state's threat of using the bogus carjacking conviction in the event that he testified. Louisiana's intermediate appellate court granted John a new trial, agreeing with our constitutional argument that his right to testify was abridged.

Banks: In a strange coincidence, the first jury selection was May 6, 1985 and in the new trial, jury selection was on May 6, 2003. In the first trial, the verdict came back on May 8. In 2003, the verdict came back on May 8. The jury was out for only 35 minutes. John was deeply gratified because it underscored how compelling the evidence of his innocence was.

Editor: What assistance does the state provide a man who has been wrongfully incarcerated for 18 years?

Banks: The State of Louisiana gives nothing to its released prisoners. As a death row prisoner, John received no training during his incarceration. He was in solitary confinement for 23 hours a day. When let outdoors to exercise, he was alone in a small yard space. He had no contact with other prisoners except for yelling through the bars or talking through the small grates above eye level that allow air to pass between the cells.

Despite the lack of support from the state, John has built a life for himself already. He works for a lawyer who at one time had worked with us as local counsel. He is married to a lovely woman, whom he met through his church. It is especially gratifying to see John reunited with his son, who was 3 when John went to jail and is now a grown man of 22.Editor: Did you have help in handling the procedural complexities and emotional difficulties in appealing John's convictions?

Cooney: At all stages, we had co-counsel in Louisiana, including an expert in post-conviction matters and a top criminal defense lawyer. We reviewed a large number of habeas cases ourselves and made sure we stayed current with relevant legislation and cases. We also were assisted by the Louisiana Death Penalty Resource Center. Like similar organizations in other states, the center plays an invaluable role in making sure that attorneys like us, who handle primarily
civil cases, can confidently represent a client in a death penalty case.

Banks: If Gordon and I had wanted to handle the case on our own, it would have been impossible. Over the years, at least 72 different Morgan Lewis lawyers and paralegals did some work in John's case. Two things were particularly amazing to us. First, the firm supported us with financial and other resources
when there was no significant evidence of John's innocence. Second, the emotional support from every corner of our firm was overwhelming. As we neared the retrial, you would think that this was the biggest thing in the history of the firm.

Editor: Knowing what you know now of the effort involved in appealing John's convictions, would you do it again?

Cooney: John's case represented both the emotional lows and the emotional highs of a lifetime. We were frustrated for the longest time to be so passionate and convinced we were right, but to have no success, particularly where failure would have resulted in John's death. I need to digest all that happened before I consider taking another death penalty case. I will continue to be active in the pro bono area and in other ways.

Editor: What advice would you give to a lawyer who is considering a death penalty case?

Banks: We have been very encouraging to our colleagues here who have expressed an interest in taking such a case. They need to be aware of a couple of things. First, the client facing the death penalty will be their most important client. If they are not prepared to do everything that is required, they should not take the case. The second is to recognize that it is dangerous to fall into the trap of the obvious. Upon reading the record from John's original trial, you might say, "This guy is guilty." He was not. The point is to keep digging and not jump to conclusions.

Cooney: Never give up. You may despair, but never give up. Also, listen to your client. Some lawyers fall into the trap of thinking that they are representing someone who does not know much. We learned a lot from John. We listened to what he had to say, and he had some tremendous ideas. I do not know we would have developed some things if he had not brought them to our attention and we had not listened.