After 14 years on Louisiana's death row, John Thompson had one month to live when he received a stapled letter from his lawyers with an unusual request. They asked him to prick his finger with the staple, put drops of blood on the letter, seal it and return it the same day.
"I was cranky and disillusioned that day. I was preparing to tell my family this execution date was final," he recalled. His appeals were over, and he was scheduled to die the day before his son graduated from high school. "But when they asked for blood, I thought they must have found something."
Prosecutors in the New Orleans district attorney's office had intentionally hidden a blood test that would have unraveled the criminal case against Thompson. By a stroke of luck, a young investigator scouring the crime lab files found a microfiche copy of it. Thompson's blood type did not match. That single piece of evidence led eventually to Thompson being declared innocent of murder.
After he was freed, Thompson sued the office of now-retired Dist. Atty. Harry Connick, and a New Orleans jury awarded him $14 million. But oral arguments at the Supreme Court in the fall suggest he may not see a nickel of it. The high court has taken a dim view of suing prosecutors, and in Thompson's case, the court's conservatives led by Justice Samuel A. Alito Jr. questioned whether the district attorney's office should be held responsible for the misdeeds of a few prosecutors.
Defense lawyers say a series of high court rulings shielding prosecutors from damages, including one two years ago in a Los Angeles case, have created a situation in which abuse is tolerated and the falsely accused are more likely to go to prison, or worse. The justices have barred suits against individual prosecutors even when they lie about evidence in court. And increasingly, the high court has been shielding district attorney's offices from being sued for a pattern of wrongdoing by their prosecutors.
Researchers who have examined scores of cases of those who were freed because of DNA evidence say misconduct by prosecutors is one of the leading causes of wrongful convictions.
Defendants are supposedly protected by the 1963 ruling in Brady vs. Maryland, which told prosecutors they must reveal evidence that could free a criminal defendant.
"The problem is that Brady violations are hidden and can forever remain hidden," said University of Virginia law professor Brandon Garrett.
"The experience of these DNA exonerees certainly suggests that Brady violations may be more pervasive than anyone would like to think," Garrett said. "Today, there is no excuse for systems where crucial lab reports and detective interview notes simply disappear, only to be found years after a trial."
Though crime experts point to the need for greater scrutiny of prosecutors, the high court has been erecting a stronger legal shield against suing them for wrongdoing. Prosecutors, like judges and grand jurors, are part of the "judicial process" and must be protected from harassment that could deflect them from doing their duty, the justices have ruled.
"They are closing off any meaningful remedy for the most serious misconduct," said Pace Law School professor Bennett Gershman, who has written widely on misconduct by prosecutors. "The Thompson case is a dramatic illustration of how an innocent person was nearly executed. If the court is insensitive to that, it tells you where we are with the criminal justice system."
The New Orleans case, Connick vs. Thompson, is scheduled to be decided early this year. It is the third in three years in which the justices have taken up appeals from prosecutors who were successfully sued for sending innocent people to prison.
Two years ago, the justices shielded the Los Angeles County district attorney's office from being sued for using jailhouse informers who repeatedly lied to juries. The ruling threw out a suit by Thomas Goldstein, who spent 24 years in prison for a murder in Long Beach he did not commit.
Last year, the court heard the case of two Iowa prosecutors who were sued for framing two black teenagers for the murder of a security guard even though witnesses had pointed to a suspect who was white. In asking for the claim to be tossed out, the Iowa prosecutors asserted "there is no freestanding constitutional right not to be framed." A settlement was reached before the justices could issue a ruling.
The police, like other public officials, can be sued if they knowingly violate a person's constitutional rights, the court has said. By contrast, prosecutors, like judges, were given a total immunity from suits even if they deliberately violated the law. Otherwise, "harassment from unfounded litigation" could deflect from doing their duty, the court said.
Thompson has attracted support from Paul D. Clement, U.S. solicitor general in the George W. Bush administration, who filed a friend-of-the-court brief supported by former Justice Department officials.
"Prosecutorial immunity is the 600-pound gorilla in all these cases," said Clement in an interview. "Step back and ask yourself the question: Which of these people should know better? The prosecutor or the police officer?"
Yet under the high court's rules, the prosecutor who commits "intentional wrongdoing" is shielded, but not the police officer, he said.