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Cover Story: Walking Away From Death

by Richard G. Freeman

Fall 2003, Vol. 66, No. 3

J. Gordon Cooney Jr. and Michael L. Banks physically embody Morgan, Lewis & Bockius. Banks even shares the initials of the firm where he and Cooney work as partnershe in labor and Cooney in commercial litigation. On the street in a lunchtime crowd, their French cuffs and trim tailoring blend into the world of billable hours and client meetings. But sit down with them in the clean, well-lighted conference room at august ML&B and the talk soon turns to blood and tears.

In May 2003, Michael Banks, ever the Philadelphia lawyer, delivered a winning closing speech to a jury in a murder trial in New Orleans, Louisiana. Thirty-five minutes later the jury returned a not guilty verdict. It was May 9, 2003, nineteen years after the brutal murder of Ray Liuzza Jr. and eighteen years after another jury had convicted John Thompson, Banks and Cooneys client. Thompson had been sitting on death row for eighteen years, much of that time with just two loyal pen palsCooney and Banks. It was through their relentless efforts that he finally regained his freedom and his life.

Banks and Cooneys achievement is the latest remarkable contribution to the long history of pro bono service rendered by members of the Philadelphia Bar Association. Distinguished Philadelphia lawyers have lent their efforts gratis to represent accused security risks in the McCarthy era, Freedom Riders and draft resisters in the 1960s and, lately, persons, like John Thompson, wrongly convicted of first-degree murder and sentenced to death.

In 1988 Cooney and Banks approached partner (now firm chair) Francis Milone seeking some pro bono work that might engage them. Prior to the Thompson case each had won his stripes doing the kind of pro bono work that comes naturally to Philadelphia lawyerscustody and support cases for the Support Center for Child Advocates (Banks has served as chair) and civil representation of indigent litigants. So when Milone referred them to an acquaintance who was active with the Louisiana Death Penalty Project, they applied their skills as criminal lawyers, the only impediment being that neither Cooney nor Banks had ever tried a criminal case. All that motivated them was the principle of public service.

I was raised by my parents to look out not just for myself but for others, says the blond and square-jawed Cooney. Also, each school I went to (Wesleyan University and Villanova Law) emphasized public service.

Banks, a voluble product of Cornell University and Columbia Law School, identified with his father, Barton Banks, a lawyer who undertook criminal defense and civil rights cases and frequently fought the lonely fight. Banks says, I learned, working in a big firm, to identify with the client and provide the full measure of representation. I wanted to be able to represent people who didnt have the representation our clients do.

When Cooney and Banks were approached with the Thompson case they were struck by the fundamental unfairness of the original proceedings in 1985. Prosecutors in New Orleans tried Thompson and won a conviction on an unrelated armed robbery charge while he was under indictment for murder. The armed robbery conviction enabled the prosecutors to tell the jury that Thompson was a convicted felon and thus eligible for the death penalty. It seemed appropriate, therefore, for Banks and Cooney to attack the conviction in the armed robbery at the same time as the murder conviction.

The result was a legal and emotional high-speed train ride that lasted from November 1988, when Banks and Cooney entered their appearances in the case, until this past May. In the meantime, eight writs of execution were issued for Thompson. In each instance Cooney and Banks succeeded in staying execution while they litigated different constitutional issues.

The issues interlocked. Initially, it appeared to Banks and Cooney that there were serious defects with the handling of the witnesses in the armed robbery case, a carjacking. Since the carjacking conviction also operated to keep Thompson off the stand in the murder case (and he had a plausible defense to relate), the lawyers began with that conviction. They discovered:
  • Witnesses who testified they had not been offered a reward actually had been (this disclosure won them one 1994 remand from the Louisiana Supreme Court); and
  • The identification in the carjacking case was tainted. The father of a young victim showed her Thompsons newspaper photo after the murder arrest (this argument got them nowhere).

In the process, the Banks-Cooney team had to confront some problematic evidence that had marked the case from the beginning: Prosecutors alleged that when arrested Thompson had in his possession the victims jewelry and that the murder weapon could be traced to him as well. But now that the carjacking conviction did not prevent Thompson from testifying, these circumstances could be explained. The dramatic breakthrough came in April 1999, when a defense investigator, Alisa Abalofia, found a blood sample that police took as evidence from the clothing of the driver in the carjacking; the driver had struggled with the carjacker, allegedly Thompson. The prosecution had not disclosed this evidence in the original trial. The blood sample did not match Thompsons blood type.

Cooney and Banks received the foregoing revelation just in time. They had flown to New Orleans and told Thompson that the appeals process had tapped out and he was sure to die soon. Days later, because of the hidden blood report, they participated in the unlikely spectacle of jointly seeking a stay of execution with the district attorney of New Orleans, Harry Connick Sr.

Turmoil erupted in the District Attorneys Office. A grand jury was convened to investigate the District Attorneys Offices conduct in the original carjacking and murder investigation. The district attorney in charge of that investigation resigned in protest. John Thompsons case languished for two more years until July 17, 2002, when a middle-level Louisiana appeals court granted Thompson a new trial.

Cooney and Banks did what any smart Philadelphia lawyer would do. After the district attorney approached the lawyers about a possible plea agreement, Thompson reluctantly agreed to a deal in which he would walk out of prison a free man after pleading to a reduced charge of manslaughter. The day before the plea was to be entered and six days before the trial date, the district attorney, at the insistence of the victims family, pulled the package off the table. The ML&B partners and their client found themselves in front of a Louisiana jury, defending charges of first-degree murder. Since the trial judge had reversed the death sentence, now merely life in prison loomed. With the help of local attorney Robert Glass and the rest of the Thompson team (which included Morgan, Lewis & Bockius associates Mike Eagles, Patti Kim and others), Thompson was found not guilty. A joyful party at Tipitinas, a New Orleans nightspot, followed the acquittal.

While they inched down the long road leading to justice, Banks and Cooney got to know their client in more than the abstract. They were moved when they learned of Thompsons attachment to his son, an attachment that became evident when Thompson sold his meager prison belongings (clothing, boom box) and sent the small sum to the boy so he could pay his share of a school trip. They observed, according to Cooney, that Thompson matured in jail from just young and impoverished to someone who had acquired a sense of dignity and grace that amazed us. When they met with Thompson in April 1999, about his impending May 20 execution, Thompson was only concerned about the lifelong impact his death would have on his son. In a congratulatory e-mail John Thompson sent Cooney on the birth of Cooneys son, Thompson told Cooney that because Cooney and Banks believed in his innocence he was able to keep in touch with his son and remain a father in deed while on death row.

Thompson now works as a paralegal in the office of Nick Trenticosta, who runs the New Orleans-based Center for Equal Justice. In a telephone conversation, speaking in the sweet, courtly drawl of Louisiana, Thompson said he spends his time working on the case and trying to get some of the brothers out, including some of his former neighbors on death row. Of the world seen through eyes secluded for eighteen years, he said: Everything has changed from the smallest to the biggest. This wasnt here, that wasnt there. The only thing that hasnt changed is my relationship with my son. And his opinion of Cooney and Banks: Them guys have been incredible. They didnt leave me. He is especially grateful that every time he phoned, either Cooney or Banks answered the call (a basic civility that seems more pointed when your client is sentenced to death). Thompson spends time away from work going to the movies with his son. The first movie he saw outside of prison was Bad Boys 2. The last movie he saw before his arrest was Gremlins.

In 1999, Cooney and Banks had promised Thompson they would be present for his execution. (Banks: We felt we had failed. Cooney: We felt we owed it to him.) Instead, in May 2003, they greeted their client at the gate of Angola State Penitentiary. The experience, while gleeful, has taken its toll.

I need some distance before I consider another capital case, said Cooney, who had to reign in his emotions while relating the saga of the Thompson case. This case has been an emotional roller coaster.

I might not do it again, at least not right away, said Banks. I would have to think hard before taking on another case of this type. Both Banks and Cooney candidly acknowledged that their other work as partners of ML&B occasionally needed some support while they fought the Battle of New Orleans, and they expressed deep gratitude to Morgan Lewis for years of support and encouragement.