Law Review: In capital case, lawyers' Perry Mason moment

For one brief but horrible day in April 1999, it appeared as if Michael Banks, J. Gordon Cooney Jr., and, most important, their client, John Thompson, had reached the end of the road.

It was then that a state court in Louisiana issued a writ of execution for Thompson, seemingly bringing to a close a 14-year battle by Thompson to overturn his conviction and death sentence in the 1984 killing of a member of a prominent New Orleans family.

Banks and Cooney are litigators at the Philadelphia law firm of Morgan, Lewis & Bockius L.L.P., and they were representing Thompson pro bono. On that day, they had traveled to Louisiana's notorious Angola state prison, where Thompson had been spending 23 hours a day in a 6-by-9-foot cell on death row. They were there to deliver the bad news.

"We walk into the prison, and John hugs us both," Banks said, "and as soon as he saw us, he knew what was going on. He looks at us and says, 'What's the day?' We tell him May 20, and he hangs his head, then looks up and says, 'John Jr. is going to graduate from high school on May 21.' "

The two lawyers, knowing the last procedural escape route, a clemency appeal to the governor, had virtually no chance of succeeding, left the prison in tears and began the three-hour trip to New Orleans, where they planned to break the news to Thompson's mother and son.

"We walked out of the prison that day emotionally drained," Banks said. "I kept asking myself, 'How is the world a better place when a guy like John Thompson is executed, a guy who handles himself with such dignity?' "

But then the Perry Mason moment that many lawyers spend their careers chasing but never actually achieve improbably emerged.

A private investigator, hired in a last-ditch effort to find some small scrap of exculpatory evidence to reopen the case, had left an urgent voice mail. There's something in the files. They need to talk. Now.

What the investigator found was blood evidence that prosecutors had suppressed in winning a carjacking conviction of Thompson that figured prominently in the later murder trial and his death sentence. That new scrap of evidence would dramatically change the architecture of the case, leading ultimately to Thompson's exoneration in 2003 and a $14 million verdict against the New Orleans District Attorney's Office.

That verdict against the district attorney was upheld Aug. 10 by the U.S. Court of Appeals for the Fifth Circuit.

The new blood evidence was significant for two reasons. Not only had the carjacking conviction been employed by prosecutors to persuade jurors to sentence Thompson to death after his conviction, but it also effectively had prevented Thompson from taking the stand in his own defense during the trial.

Had he done so, prosecutors would have been within their rights to bring up an earlier carjacking conviction, cementing the idea in jurors' minds that Thompson was a hardened criminal predisposed to acts of violence.

Ten years later, the lives of Thompson and his lawyers have been unalterably changed. Thompson's death sentence was overturned, he was acquitted in a retrial, and he now heads a nonprofit group that helps released prisoners reestablish themselves.

Touchstone Pictures has said it wants to base a movie on Thompson's fight for exoneration, with Ben Affleck and Matt Damon playing the two lawyers.

From the start, Banks was a death-penalty opponent. As the case played out, Cooney became one. Both had been looking to handle a death-penalty case pro bono when they got the Thompson referral from Loyola University New Orleans School of Law.

One of the pernicious and misleading ideas circulating about lawyers is that they are highly risk averse, slightly behind the entrepreneurial curve, and, yes, maybe a little bland. And it is true that lawyers typically are cautious types who swaddle themselves and their clients in rules and procedures aimed mostly at avoiding big catastrophes.

But as Cooney and Banks clearly establish, there is another, perhaps even swashbuckling, side to the lives of lawyers, where huge issues are in play and lawyers themselves risk much to win the day.

That was certainly the case for Banks and Cooney. The emotional toll of the case was enormous, particularly after they had forged a strong personal bond with the client and it appeared for a time that he almost certainly would be executed.

Too, they were constantly crossing swords with authorities in New Orleans. At one point, the lawyers, needing a blood sample from Thompson, asked him to smear a few drops on a piece of paper and overnight it to them rather than seek a court order. They didn't trust the D.A.'s Office enough to alert them to the possibility, before they were ready, that there might be new evidence in the case.

Their firm, Center City-based Morgan Lewis, also had risked much. The cost of defense, including the investigation, was on its dime, although it is common for big firms like Morgan Lewis to take on costly pro bono cases all over the country. For lawyers, it is a way to bolster the system in which they earn their living.

In the end, it all worked out improbably well for Thompson, Banks, and Cooney, and that is a testament to their perseverance and grit, and to the idea that the system has the capacity to deliver a rough form of justice.

"If in 1988, if someone would have said you will be working for 21 years on this, John will be living a free and productive life, there will be a movie deal and a book and you will win in excess of $14 million from the D.A.'s Office - if anyone would have said this stuff, we would have laughed hysterically," Cooney said.