There were no battling egos, no hard feelings, not even a flip of the coin when two lawyers, “joined at the hip” for 22 years in their representation of a former Louisiana death row inmate, had to decide which one would argue his case in the U.S. Supreme Court next month.
“We know the other’s strengths better than our own,” said Michael Banks, partner in Philadelphia’s Morgan, Lewis & Bockius. “We have quarreled many times about issues, as recently as this morning. But we have never quarreled about an assignment, about who is going to do what. We’ve always agreed who is the right person to do something. For the Supreme Court argument, it’s the right decision for Gordon to do it.”
“Gordon” is J. Gordon Cooney Jr., managing partner of the Philadelphia office. “We have had a remarkable partnership in this case,” said Cooney. “When we were in the middle of John [Thompson's] criminal trial and civil trial, it was clear to me the person who needed to do the closing arguments was Michael. He was absolutely the right person to bring it home in front of the jury.”
Banks and Cooney first began work on the case as young associates in 1988. On Oct. 6, they will arrive at the Supreme Court after failed state and federal post-conviction efforts on behalf of Thompson; multiple execution dates; an indefatigable investigator’s discovery of exculpatory evidence withheld by the prosecution and proving Thompson’s innocence of murder; an acquittal at retrial; and a subsequent $14 million-jury verdict to compensate Thompson for 18 years on death row.
In Connick v. Thompson, they hope to convince the Supreme Court that the U.S. Court of Appeals for the 5th Circuit was correct in upholding the $14 million jury verdict because of the district attorney’s failure to train its lawyers about so-called Brady violations, a failure that led to Thompson’s wrongful conviction and death sentence in 1985. They argue the appellate court’s decision does not expose “district attorney’s offices to vicarious liability for a wide range of prosecutorial misconduct,” as the Orleans Parish District Attorney Leon Cannizaro Jr. contends.
“The outcome in this case was in no way the product of an expansion of the law, but a recognition of significant evidence regarding what was going on in the district attorney’s office in 1985 from the district attorney himself on down,” said Cooney. “This is not a situation involving respondeat superior, but deliberate indifference of the policymaker and the consequences of that.”
In 1988, Banks, Cooney and two other associates at the firm wanted to handle a pro bono death penalty case for a variety of reasons, the two men recalled. “We wanted to take a case both as an expression of interest in pro bono work but also because of the unique issues associated with the death penalty,” said Banks.
At the time, Pennsylvania’s governor, a death penalty opponent, was not signing death warrants. A partner in the firm had a friend who was a law professor in New Orleans and “the state of Louisiana was doing an outstanding job of executing people,” said Banks. He and Cooney got in touch with the New Orleans professor.
Soon they were working with a death penalty resource center in New Orleans on Thompson’s state post-conviction petition. They had had no criminal or death penalty experience other than what had crossed their desks as law clerks. They looked to the resource center for help with the intricacies of state post-conviction and federal habeas proceedings.
“The sad reality is many of those organizations have found their funding cut or eliminated,” said Banks. “I shudder to think how we could have done this effectively without that organization as an umbrella. It would have been daunting if not impossible.”
When they took on the case, they had no sense of whether Thompson was innocent, recalled Cooney. “All we had was the record, what the prosecutors produced to the defense, which we now know to have been grossly inadequate,” he said. “That, coupled with the case the prosecutor presented at trial in the absence of a defense, made it look all the more daunting. Nothing about the case when you read file said, `This man is innocent.’”
But even before they had evidence of his innocence, the lawyers had grown to like and trust Thompson. “He would call us during football season — collect,” said Cooney. “He knew we would take the call, and he’d say, ‘How about those Saints?’ He was becoming our friend, which made the prospect of his execution in 1999 (after the 5th Circuit denied his habeas petition) even more horrifying.”
As with big-case litigation, death penalty cases have periods of intense activity interspersed with long periods of dormancy, said Banks. Particularly frantic times are before an execution date. In 1988, before the first scheduled execution of Thompson, the two lawyers filed for post-conviction relief on the day before the date.
“This was not the day of PCs,” chuckled Banks. “We drove our brief — 160 pages — to the airport and put it on the Fed Ex plane and prayed it would get there. All of that was an ordeal. And then we sat for almost three years. The court did not rule until January 1992.”
In 1998, when the 5th Circuit denied federal habeas relief, the case started moving quickly because there were fewer options and everything was done on an urgent basis, they said. “You’re thinking about clemency petitions,” said Banks. “Gordon was thinking about ‘Who do I know who knows the archbishop?’ It’s very different from civil practice.”
And, Cooney added, “If there’s a 1% chance something might work, you do it.” Banks agreed, saying, “You don’t do that in a civil case. It is remarkable how the firm rallied behind us in providing as many team members as we needed. We had dozens and dozens of people over the years, and in the most frantic times, we got what we needed — more people, experts — all paid out of the firm’s pocket — and no one ever said this is just pro bono. People covered for us in other matters. They treated it as the most important case the firm had for our best paying client.”
Their big break came in late 1999 when their private investigator, going page by page through old microfiche of the New Orleans crime lab, came across lab tests of evidence that would lead to proving Thompson’s innocence. He was acquitted in 2003. Thompson started and runs an organization, funded by grants, to help exonerated prisoners re-enter society.
The two lawyers said nothing in their law practices has been comparable to this pro bono experience. “The combination of the duration, the stakes, the remarkable person who John Thompson is, where we started and where we ended up, the highs and lows along the way — from my own perspective, the total package makes it incomparable,” said Cooney.
“It has been unlike anything we’ve experienced professionally,” said Banks. “Telling John and later his mother and son that he was likely to die because we had failed or the courts had failed. Thinking about his upcoming funeral. With all due respect to our outstanding clients, nothing has been as rewarding or as terrifying.”
After Thompson’s acquittal, the lawyers tried to work out a settlement for compensation with the district attorney’s office. “They would not even entertain a discussion,” said Banks.
“We were left with no choice,” added Cooney. “This was a man who lost 18 years of his liberty, was nearly executed multiple times, spent most of his time in Angola watching other people on the tier being led off to execution — and the state wouldn’t even talk to us despite multiple non-disclosures of exculpable evidence. We were stunned. That left us with no alternative but to sue.”
And now they are preparing for the Supreme Court. Cooney is making his first high court argument. They are doing moot courts, discussing the issues, trying to predict the justices’ questions and to develop precise answers.
“We have a terrific group of appellate lawyers in our firm and they have an absolute wealth of experience,” said Cooney, adding that the power of pro bono work to create a sense of community in a law firm “cannot be underestimated.”
In the Thompson case, he said, “This firm felt that as a collection of individuals and as an organization, it had done something good.”
And Banks added, “This entire firm represented John Thompson.”
Marcia Coyle can be contacted at firstname.lastname@example.org.