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Prosecutors concealing evidence

Associated Press, June 1, 1999

Dying of colon cancer, a former Orleans Parish, Louisiana, prosecutor confided to his best friend that he had concealed evidence that could have cleared a man of an armed robbery used to nail his death sentence in the unrelated killing of a hotel executive.
Meanwhile, convicted murderer John Thompson was at the Louisiana State Penitentiary at Angola awaiting execution for shooting Ray Liuzza Jr. in December 1984.
Gerry Deegan told his friend, Michael Riehlmann, that he had made sure a swatch from a victim's pant leg and tennis shoe stained with the assailant's blood never made it to trial. The carjacker's blood type was type B.
A recent test showed that Thompson, who had been convicted of the robbery, has type O blood.
Riehlmann recalls the confession from Deegan, who died in 1994.
"He was remorseful but he felt like although what he had done was wrong, he was serving some greater good," Riehlmann said, explaining that Deegan believed Thompson committed the murder and should pay the ultimate price.
"It's the way some who sit on exculpatory evidence rationalize it."

To defense attorneys there is never a rationalization for the intentional concealment of evidence. Such an act throws a brake on the wheels of justice, mocking a defendant's right to due process, they say.

The latest revelation of apparent misconduct has stirred longstanding allegations that District Attorney Harry Connick's assistants have frequently skirted the constitutional provision which requires them to turn over any evidence that could be favorable to the accused.

The Thompson case has unfolded amid an ongoing trial in DuPage County, Ill., where five former prosecutors and police officers are accused of framing a man sent to death row for a young girl's murder.

"I contend these incidents are completely isolated," said John Justice, president of the National Association of District Attorneys. "Before DuPage, there were no cases of prosecutors being prosecuted because there was no evidence of criminal misconduct. There's a national wave of prosecutor bashing going on. I think it's a reaction to how people feel about Ken Starr."

But closer to home, critics say prosecutors' efforts are too often in the name of victory, not justice.

Take, for example, Curtis Kyles, Shareef Cousin and Isaac Knapper. Each of their murder convictions were overturned after defense attorneys uncovered information that prosecutors failed to turn over evidence during trials.

Cousin was yanked from death row, where at 17 he was once the youngest killer doomed to lethal injection. Thompson, a father of two, still sits there but his attorneys from the Loyola Death Penalty Resource Center and a Philadelphia law firm hope to win him a new murder trial.

But for a dying man's words and the work of a private investigator hired by attorneys Michael Banks and Gordon Cooney, Thompson would have died by injection May 20.

"We are shocked and relieved at what our investigator found," Cooney said.
"Shocked that it suggests some sinister behavior on the part of prosecutors and relieved in the sense that we have long believed John did not get a fair trial."

Events that began to unfold in April, just a month before Thompson's eighth scheduled execution date, continue to surprise many.

Two weeks after launching the first grand jury probe into possible misconduct in his office, Connick called it off, saying the statutes of limitations on the possible crimes by former prosecutors had run out.

The former prosecutors, however, could still face disciplinary action, even disbarment.

And District Judge Patrick Quinlan has called for two public hearings on the concealment of evidence in light of Connick's efforts to dismiss the 15-year-old armed robbery case against Thompson.

Connick said the Thompson case is the only example of prosecutorial misconduct occurring during his 25-year tenure.

"I think the U.S. Supreme Court would disagree with him," said Dwight Doskey, an indigent defender and Connick critic.

Doskey cited the 1995 U.S. Supreme Court decision in Kyles v. Whitley, where Kyles' conviction in the 1984 murder of Delores Dye was overturned.
The court said that the state's failure to turn over some evidence "undermined the confidence in the verdict."

After Kyles' fifth trial ended in a hung jury, Connick announced that he would not seek another trial.

"With Thompson, we had documents showing that Gerry Deegan took the blood evidence out of the police evidence room but that it was never used in trial," Connick said. "In any of the other cases, I don't know of any intentional withholding of the evidence.

"We follow the rules. I was a defense attorney for years before I took office. We have an ongoing and continuing obligation to turn over exculpatory evidence and we do."

However, Connick adds that he believes the constitutional burden or its interpretation by appellate courts is excessive and that sometimes prosecutors are charged with divining whether evidence could in some way be favorable to a defendant.

For Doskey, there is an easy way to close that gap: All evidence should be made available.

"Open-file discovery would assure us they're not hiding the evidence they have so many times before and it might expedite things when defendants who are guilty would be urged to plead guilty because of evidence," Doskey said.

Doskey's proposal would require a change in state law, although he said many parishes already open district attorneys' files as a matter of course.

Now under state law, defense lawyers are only privy to the information contained in a prosecutor's case file within three years after a defendant's conviction has been affirmed by an appellate court.

Connick's response: "Well, there's a body of people up the road called legislators. They're the ones who would handle that."

Connick also scoffs at allegations that his office is so devoted to prosecutions that it often forgoes due process in seeking convictions.

Last year, out of nearly 36,500 charges referred to the prosecutors by police, his office only accepted 50 percent.

"If we were so bloodthirsty, we would accept all of our cases and park them up in jail. We don't do that. We screen our cases. We check on witnesses. We examine evidence," he said.

In Thompson's case, Riehlmann didn't reveal his friend's secret until defense attorneys uncovered the lab report and began hunting for answers to the 15-year-old mystery. After learning of their quest, Riehlmann came forward, signing an affidavit about Deegan's confession.

Now a defense attorney who once served as a prosecutor under Connick, Riehlmann is already planning his plea for forgiveness from the State Bar Association for not having come forward sooner.

Defense attorneys only wish it hadn't taken a dying man's confession to help reveal the apparent misdeeds of prosecutors.

"It's unsettling and jarring," Cooney said. "We are deeply concerned that this is not the only thing that was concealed."

He and Banks also allege that the state was not truthful about two witnesses in Thompson's murder trial receiving $15,000 in rewards after his conviction.

"What else should we know?" Cooney asked.