Cruz the Politician Champions the Death Penalty. Cruz the Private Lawyer Did Something Else [Barf!]

In December, when a mentally ill Texas man convicted of murder was poised to be executed—and a number of prominent conservatives were calling to postpone the killing—Sen. Ted Cruz (R-Texas) declined to criticize the pending execution. "I trust the criminal-justice system to operate, to protect the rights of the accused, and to administer justice to violent criminals," Cruz declared. This was not shocking. As a politician and public officeholder, he has long supported capital punishment. While running for Senate in 2012, Cruz repeatedly mentioned his win as Texas solicitor general in a case before the Supreme Court that preserved the death penalty for a Mexican citizen convicted of raping and murdering two Houston teenage girls.

Yet as a lawyer in private practice two years earlier, Cruz had argued that the criminal-justice system, in at least one instance, had gone awry and nearly killed the wrong man. This happened when Cruz was assisting the case of a Louisiana man wrongfully convicted of robbery and murder who spent 18 years in prison—14 of them on death row—before being freed. As an attorney for this man, Cruz argued that local prosecutors could not be trusted, that institutional failures in the justice system had nearly led to his client's execution, and that this fellow was owed $14 million in restitution because of these miscarriages of justice. But after his experience in this dramatic case—which included coauthoring a passionate brief presented to the Supreme Court—Cruz the politician would still offer a full-throated endorsement of the criminal-justice system and capital punishment.

This case began long before Cruz, fresh off his stint as Texas solicitor general, joined the Houston office of the high-powered Morgan Lewis law firm in 2008 to build its appellate and Supreme Court practice. Twenty-four years earlier, in 1984, a prominent New Orleans businessman was shot and killed outside his home. A month later John Thompson, a 22-year old African American father of two, and Kevin Freeman were arrested and charged with the murder. Afterward, Thompson was charged with attempted armed robbery that had occurred three weeks following the murder. (Thompson was arrested for the attempted theft after the father of the three victims showed them a photo of Thompson that had appeared in the newspaper in connection with the murder case and his children said they believed Thompson was the fellow who had tried to rob them.)

In handling these two cases, the office of the district attorney Harry Connick (father of crooner/actor Harry Connick Jr.) got creative. It brought Thompson to trial first on the armed-robbery charge, hoping that it could use a conviction in that case to help win a guilty verdict on the murder charge. The scheme worked. Based solely on the identification made by the victims—a college student and his two siblings—Thompson was convicted of the robbery and sentenced to 50 years in prison. Then at the murder trial, Thompson was effectively precluded from taking the stand in his own defense—because the prosecutors would have impeached his testimony by referring to the robbery conviction. His codefendant was able to testify that he saw Thompson commit the murder without being contradicted by Thompson.

Cruz signed his name to a brief arguing that "public confidence in the integrity of the justice system is shaken" by the wrongful conviction of John Thompson.

Thompson was convicted of the murder and sentenced to death. In 1987, Thompson was dispatched to death row at Louisiana's infamous Angola State Penitentiary and kept in solitary confinement. He spent 23 hours a day in a six-by-nine-foot cell that had no window and no air conditioning. The stench of human feces permeated the prison.

But there was a huge problem with the case. After years of legal wrangling and failed appeals—and after several execution dates were scheduled but then postponed—a final execution date was set for May 20, 1999. Weeks prior to the execution, Thompson's legal team discovered a piece of evidence that Connick's office had suppressed and not shared with Thompson's defense attorney at the time of the trials: a report identifying the blood type of the thief in the armed-robbery case. Blood from the perpetrator had stained the pants of one of the victims, and this sample had been tested by the DA's office and found to be Type B. Thompson's blood was Type O. (After this evidence was discovered, a former New Orleans prosecutor revealed that a past associate who had been a junior assistant DA on the Thompson case had, as he was dying of cancer five years earlier, confessed to him that he had hidden the pants and the blood evidence.)

This meant that Thompson had been wrongfully convicted of the robbery—a conviction that had inhibited him from mounting a vigorous defense in the murder case. His armed-robbery conviction was thrown out, and a judge postponed his execution. Subsequently, his lawyers discovered additional evidence that the DA had not turned over. This included police reports showing that Freeman, not Thompson, matched the murder suspect's description and that Freeman (who was killed by a security guard in 1995 while breaking into cars) had changed his account significantly. Thompson's murder conviction was vacated in 2002 and the following year he was retried on the murder charge—with his defense providing evidence that Freeman had killed the businessman. After 35 minutes of deliberating, a jury found Thompson not guilty. Thompson was released from jail.

Having spent nearly two decades in prison—and most of that on death row—because prosecutors had not followed the law and shared relevant evidence with him, Thompson sued Connick and several of his assistant district attorneys in their official capacities for wrongful suppression of evidence. Thompson and his lawyers contended that Connick had been deliberately indifferent to the requirement—established by the Supreme Court in 1963 with the case Brady v. Maryland—that prosecutors turn over material that could help a defendant. The lawsuit charged that Connick had failed to provide his prosecutors with training regarding their Brady obligation. In 2007, a jury found that Connick had screwed up and awarded Thompson $14 million.

The DA's office appealed that decision. (In its appeal, the district attorney—Connick was no longer serving in this role—argued that the $14 million award was excessive because Thompson was not raped in prison, was not denied food or medicine, received visits from friends and relatives, made friends with other inmates, was able to watch television and play chess, and had previously spent time in jail for less serious crimes.) And the case eventually reached the Supreme Court.

Since 1988, two lawyers in the Philadelphia office of the Morgan Lewis law firm, J. Gordon Cooney Jr. and Michael Banks, had been working on Thompson's case on a pro bono basis. With the case heading toward the Supreme Court, the two turned to a partner in the Houston office of their firm for assistance: Ted Cruz.

Cruz had a reputation as a stellar lawyer and he was leading the firm's appellate practice. He had argued in front of the Supreme Court several times, racking up a decent win-loss record. As Cooney and Banks prepared for the Supreme Court case, Cruz provided guidance and advice. "He was a very good appellate advocate," Banks recalls, "helpful in enabling us to formulate our arguments."

As a member of Thompson's legal team, Cruz was one of four Morgan Lewis partners to sign the brief Cooney and Banks submitted to the highest court. The brief detailed the many ways the criminal-justice system had failed Thompson.

"Over a four-month period between Thompson's arrest and his separate convictions for capital murder and armed robbery, at least four prosecutors in Connick's office…failed to produce more than a dozen pieces of favorable evidence, including a crime-laboratory report, police reports, witness statements, audiotapes, and other materials."
"At least four prosecutors who worked on Thompson's case…affirmatively knew of the blood evidence [that could have exonerated Thompson from the armed-robbery charge]."
"The prosecutors who had worked on Thompson's case did not identify any training whatsoever that Connick provided on a prosecutor's obligation to comply with Brady [and hand over to the defense favorable evidence]. Moreover, the office had a presumptive rule of non-production."
"Connick was deliberately indifferent to the need to train and instruct his assistants on their obligations under Brady."
"When confronted [in 1999] with documents showing that his prosecutors had failed to produce this critical Brady evidence 14 years earlier in Thompson's armed-robbery case, Connick refused to undertake any investigation of the murder case, even though both cases were handled by the same prosecutors."
"Moreover, although he initially convened a grand jury investigation into his office's failure to produce the blood evidence (enabling him to conduct his investigation under grand-jury secrecy), Connick eventually squelched even that investigation."

With this brief, Thompson's team—Cruz and all—put forward a brutal indictment of law enforcement that included extensive prosecutorial wrongdoing and a cover-up of prosecutorial misconduct. The filing contended that "a culture of indifference suffused [Connick's] office." And it declared,

The behavior of the prosecutors in this case—from the district attorney on down—shocks the conscience. Four different prosecutors withheld evidence that would have proven John Thompson's innocence, and, as a result he spent 18 years wrongfully imprisoned and was nearly executed for crimes he did not commit. But for a chance discovery by defense counsel weeks before Thompson's scheduled execution [in 1999], the prosecutors' misconduct would never have come to light, and John Thompson would be dead today.

Cooney, Banks, and Cruz argued that upholding the Thompson award was necessary to restore "public confidence in the criminal justice system."

Prior to the oral arguments, Cruz conferred with Cooney and Banks—there were several meetings and phone calls, Banks recalls—to help the pair prep for the presentation before the Supreme Court. "His role was valuable but modest," Banks says. As Cooney argued the case on October 6, 2010, in front of the justices, Cruz, who in months would be running for Senate as a pro-death-penalty candidate, was in the courthouse, though not at the counsel's table, according to Banks.

When Cooney, Banks, Cruz and other lawyers on Thompson's team left the Supreme Court that day, they judged, based on the justices' questions, that they had won over four of the nine justices, but not the five needed for a victory. And they were right. Five months later, the court issued a five-to-four decision against Thompson.

"Sen. Cruz was honored to represent John Thompson, a man WRONGLY convicted of murder. It is only liberal stereotypes that suggest that conservatives are unconcerned with innocence," a spokeswoman says.

Writing for the conservative majority, Justice Clarence Thomas declared that Thompson had failed to prove that Connick had been "deliberately indifferent to the need to train the prosecutors about their Brady disclosure obligation." Thomas insisted that Thompson's lawyers had not demonstrated that Connick's failure to train the prosecutors adequately "amounted to conscious disregard for defendants' Brady rights." In a concurring opinion, Justice Antonin Scalia dismissed Thompson's case by claiming the failure to turn over the blood evidence in the armed-robbery case was merely the doing of one "miscreant prosecutor." In a stinging dissent, Justice Ruth Bader Ginsburg accused the majority of callously ignoring the trial record and maintained that the "long-concealed prosecutorial transgressions" in the criminal cases mounted against Thompson "were neither isolated nor atypical." She added, "What happened here, the Court's [majority] opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish."

The majority's opinion, which was interpreted by legal experts as essentially allowing prosecutors to get off the hook when they violate the law to deprive a suspect of a fair trial, was widely criticized. In Slate, Dahlia Lithwick observed that Thomas and Scalia's "disregard for the facts of Thompson's thrashed life and near-death emerges as a moral flat line…Only by willfully ignoring the entire trial record can [Scalia] and Thomas reduce the entire constitutional question to a single deed by a single bad actor." She noted this was "one of the meanest Supreme Court decisions ever."

Cruz had ended up on the wrong side of the court's conservative majority. But Thompson's legal team was not surprised by the outcome. Still, Banks observes, Thompson's case conveyed a compelling message: "It reminds us that even in cases where there seems to be compelling evidence of guilt, files don't always hold the truth, prosecutors don't always reveal the truth, and innocent people are executed." (After Thompson was freed, he set up a nonprofit called Resurrection After Exoneration that helps exonerated inmates adjust to life outside prison. In 2014, CNN, Alex Gibney, and Robert Redford produced a documentary covering Thompson's tale.)

Asked how Cruz reconciles his work on Thompson's case with his support for the death penalty, a Cruz spokeswoman said,

Many states, including Texas, have concluded that capital punishment is an appropriate sentence for juries to impose on the very worst murderers. Sen. Cruz was honored to represent John Thompson, a man WRONGLY convicted of murder. It is only liberal stereotypes that suggest that conservatives are unconcerned with innocence. Having worked many years in law enforcement, Cruz understands that our justice system depends on protecting the innocent and ensuring just punishment of the guilty. DNA evidence proved that Mr. Thompson was actually innocent, and his incarceration and near execution was a miscarriage of justice. For that reason, Cruz was proud to join his law partners representing Mr. Thompson pro bono (free of charge) in his civil litigation against the DA's office that wrongfully suppressed the blood evidence in his case.

With the recent Panetti case, Cruz voiced his overall trust in the criminal-justice system concerning the death penalty. That's a much different take than the view expressed in Thompson's brief that noted that due to this case "public confidence in the integrity of the justice system is shaken." As a private lawyer, Cruz questioned the credibility of the criminal-justice system. Yet Cruz's belief in the capital-punishment system appears unshaken; that is, when he is talking about it as a politician.

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In the case of a man wrongfully sentenced to death, Ted Cruz once argued the criminal-justice system couldn't be trusted regarding capital punishment.

David Corn