In Louisiana, only convicts sentenced to death have the right to court-appointed appeals lawyers. “But,” wrote Thompson, “there are more than four thousand people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.”39
None of the prosecutors who put Thompson on death row were punished. They weren’t even fired. Pace Law School professor Robert Gershman, who has written widely on prosecutors’ misconduct, contends, as do other experts, that under Chief Justice John Roberts, the Supreme Court has followed a shocking course, shielding prosecutors with more and more armor to protect their misconduct even as more cases of misconduct are exposed. “The Thompson case,” he said, “is a dramatic illustration of how an innocent person was nearly executed. If the [Roberts] court is insensitive to that, it tells you where we are with the criminal justice system.”40
Two years before the Roberts court pronounced its ruling against Thompson, the same five 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 former marine Thomas Goldstein, who spent twenty-four years in prison for a murder in Long Beach that he didn’t commit. The justices barely looked at the facts of the case. They focused their concern not on Goldstein, who was framed, but on prosecutors, who, the court ruled, shouldn’t have to live in fear of lawsuits.41
In Thompson’s suit, a friend-of-the-court brief was filed on his behalf by Paul D. Clement, U.S. solicitor general during the second Bush administration. Clement pointed out that police officers, who receive no immunity for their misconduct, don’t seem to suffer from their condition. “Step back and ask yourself the question,” he said. “Which of these people should know better? The prosecutor or the police officer?”42
Gerald Burge, also framed for murder in Louisiana around the same time as Thompson, served six years in prison. His appeals attorney learned that the investigating officer had hid evidence that established Burge’s innocence in the trunk of his car and subsequently dated and eventually married the murder victim’s sister. Later it was proved that the officer urged her and her mother to lie on the witness stand. Burge had been sentenced to life without parole. Because he was framed by police and not prosecutors, he managed to win a civil judgment for $4.3 million against the St. Tammany Sheriff’s Office and the lead detective, but his case remained tied up on appeal.43
Because rogue prosecutors are armed with prodigious, almost otherworldly immunity, they aren’t required to provide us with explanations for their bizarre actions. All we can do is speculate, but it appears that in many cases they decide who the perpetrator is and build a case around that conclusion, without considering other possibilities.
Social scientists have repeatedly uncovered a human tendency to see what they expect to see. Once they decide a suspect is guilty, prosecuting authorities seem to look upon the evidence differently—automatically and often unconsciously sorting the data in ways that will conform to their expectations. A closed, limited mind is a major building block of incompetence, but combine it with an abnormal thirst for victory, and results can be deadly. In some cases it is clear that authorities knew the identity of the actual perpetrators and could have assembled cases against them. Yet they chose instead to frame the innocent. Sometimes they appear to be protecting their informants, but this explanation holds for only a fraction of cases.
In novelist Pierre Boulle’s astute The Bridge over the River Kwai, Lieutenant Colonel Nicholson, a prisoner of war, intends to build an outstanding bridge in order to prove his personal skills as well as the case for intrinsic British superiority. Nicholson gradually loses sight of the ultimate objective, which is to win the war, and he becomes a pawn of the very Japanese empire he wishes to prove inferior. Maybe a similar dynamic applies to some prosecuting authorities. No longer recognizing that their own mission is to seek justice, they focus instead on mounting a case against the suspects in their sights. They become servants of injustice, the cause they originally hoped to defeat. Louisville attorney Nathan Miller says that he’s repeatedly seen prosecutors “lose sight of what they’re charged with doing, which is to seek a just result. Most are just out to win, which is not their job at all.”44
Various writers have created characters who wrestle with an urge to play God—King Lear, Dr. Frankenstein, Charles Foster Kane. The stories resonate because we recognize the characters, whose stories reflect centuries of human experience. Prosecuting attorneys, conferred with immense powers, can become enamored with the idea of not just playing God, but being God, deciding who lives, who dies, who pays a price, and who is passed over by the dark angels of death and affliction.
It’s frequently difficult to determine whether authorities set out to frame someone or whether they are merely incompetent. Take the case of Juan Rivera, who was convicted in 1992 for the rape and murder of Holly Staker, an eleven-year-old babysitter, in Waukegan, Illinois.45 Rivera, then twenty-one, with a history of psychological problems, confessed to the crime after four days of interrogation, including a twenty-four-hour session that was barely interrupted. At different points during the ordeal, he banged his head on a wall and pulled out a clump of his hair. No physical evidence linked Rivera, a ninth-grade dropout, to the crime.
In 2005 DNA testing proved that the semen taken from Holly’s body wasn’t Rivera’s. But prosecutor Michael Mermel refused to let go of the case. He managed to convict Rivera again in 2009, after suggesting to the jury that Staker was sexually active and that the semen could have come from someone else. Mermel based his preposterous second-ejaculator theory on an incident three years earlier in which Staker had been molested. It wouldn’t be the last time that Lake County prosecutors, faced with DNA that didn’t belong to the accused, suggested that the source was an unnamed lover. And the theory isn’t the property of only that particular office. Prosecutors have used it frequently enough for it to have been given a name by defense attorneys: the unindicted coejaculator theory.
A state appellate court finally reversed Rivera’s conviction in December 2011. He was released at age thirty-nine after spending almost half his life in prison, tried and convicted three times for a crime he didn’t commit.46 Mermel, finally feeling pressure, retired the same week after twenty-one years on the job.47 His annual salary was $137,879. Mermel’s boss, State’s Attorney Michael Waller, announced he wouldn’t run for reelection. Neither was officially disciplined.
Not long before Rivera’s release, he was interviewed by Andrew Martin of the New York Times. Rivera’s arms were decorated with prison tattoos Martin described as “menacing.” But Martin also noted, “Rivera smiled easily and became relaxed, almost serene, a fact that he attributes to a religious conversion in prison. ‘The only thing that is incarcerated is my body,’ he said. ‘My mind is free here.’”48