Here is a photo of Thomas Thompson who was executed at San Quentin in 1998. Thompson was sentenced to death after being convicted of murder and rape in Orange County, California. The death sentence was voided by the Ninth Circuit Court of Appeals because Thompson had not received effective assistance of counsel at his trial. That court also concluded that the prosecution had “manipulated witnesses and evidence” against him in “a desire to win at any cost.”
Thompson’s victory turned out to be short-lived. The State appealed and the U.S. Supreme Court reversed the decision. But it did not reverse on the issue of ineffective assistance of counsel; instead it pointed to a procedural mistake. The Court of Appeals had originally authorized Thompson’s execution and later rescinded the order to prevent their mistake from causing a “miscarriage of justice.” The Supreme Court ruled that, once having approved the execution, the lower court could not later change its mind. Thompson was soon thereafter executed by lethal injection. It was judges who made the mistake, but Thompson who paid the price.
It might seem odd that the Supreme Court would use a procedural device to approve a man’s death, but when you read Justice Kennedy’s majority opinion, you can see he had his reasons. https://scholar.google.com/scholar_case?case=10563651704767790205&q=Calderon+v.+Thompson&hl=en&as_sdt=2006&as_vis=1
Justice Kennedy leans heavily on the concepts of comity and finality. “Comity” is the respect the federal judges owe to the state judicial system. “Finality” is the policy that at some point the legal process must end; federal judges must stop second-guessing how California chooses to enforce its laws.
Kennedy’s opinion also radiates a profound faith in the fairness of state criminal justice systems. A jury had convicted Thompson and California courts had upheld their decision. There was no need for federal judges to get involved. But now new information has appeared that undermines Justice Kennedy’s faith, at least in the fairness of the Orange County criminal process that convicted and sentenced Thompson to death. http://blogs.ocweekly.com/navelgazing/2015/05/recent_proof_of_prosecutorial_misconduct_mirrors_ocdas_bad_old_days.php?print=true
For years now the Orange County District Attorney’s office has been running a conviction factory where D.A.s used a combination of the testimony of unreliable jailhouse informants and the concealment of evidence favorable to the defense to ensure a high conviction rate. The study found that there were at least eighteen cases in which Orange County had improperly withheld evidence from the defense and suggests there might well be many more such cases. The study supports the Ninth Circuit’s comments about the prosecution’s “manipulation” of evidence and witnesses in Thompson’s case.
I think we can draw two lessons from this experience. First, appellate courts should be less trusting in the fairness of the American criminal justice system. While there is no reason to believe that the sorry state of affairs in Orange County is typical, there is also no reason for complacency about the quality of criminal justice in America. There are too many documented problems: coerced confessions, unreliable eyewitnesses, inexpert “experts,” high bail fees, guilty pleas by innocent defendants, under-funded public defender offices, and the political necessity for elected prosecutors to keep a high conviction rate. All these factors tilt the legal process away from fairness. A casual reader of the newspapers is aware of these facts. So too should be our Supreme Court.
“Finality” is all fine and good, but Thompson’s case shows that some judgments are too final. The Ninth Circuit warned the Supreme Court that executing Thompson would be an unconstitutional act, but the Supreme Court cavalierly allowed him to be executed in the name of “finality.” Their judgment proved to be not only final and fatal, but also out of touch with the facts of the case. If Thompson were alive today, we could give him a chance to show his innocence with the help of the newly discovered evidence. But he’s not, and we can’t.
(Disclosure: My brother Quin represented Thompson before the Ninth Circuit and the Supreme Court.)