Freedom Fighters

J. Gordon Cooney and Michael Banks just couldn’t let John Thompson die in prison

Published in 2007 Pennsylvania Super Lawyers — June 2007

On April 19, 1999, two attorneys drove three hours from New Orleans to Angola State Penitentiary to tell their client that he would die one month and one day later. John Thompson had been in prison for murder for more than 13 years. On Dec. 6, 1984, someone used a .357 Magnum to rob and murder Ray Liuzza, scion of a well-known and wealthy New Orleans clan, as he walked to his apartment building. Twenty-two days later, someone carjacked three teenagers and threatened to kill the driver with a .357 Magnum. The teens escaped only when the driver crashed the car and they pushed him out. In 1985, New Orleans juries found Thompson, then 22, guilty of both crimes, and sentenced him to death. Through the effort of his lawyers, Thompson had received stay after stay of execution. But after each stay, another warrant of execution was issued. It seemed that, except for Michael L. Banks and J. Gordon Cooney Jr., everyone wanted Thompson dead.

“That day in 1999, there was a lot of professional self-loathing,” Banks says. “We had the right arguments and we lost.”

When he got the news, Thompson had one request: to change the date of the execution so it wouldn’t ruin his son’s graduation, which was going to take place the day after. Cooney and Banks had to tell him the date couldn’t be negotiated. The two lawyers couldn’t speak a word during the first two hours of the ride back to New Orleans.

Then everything changed. 

 

They were an unlikely pair to overturn a New Orleans prisoner’s post-conviction capital case. Both are from the Philadelphia suburbs and were educated in the Northeast—Banks at Cornell and Columbia Law and Cooney at Wesleyan and Villanova Law. Neither was a criminal lawyer; Banks handled employment litigation, Cooney commercial litigation. Both were young—Banks was 32, Cooney three years his junior. They met as newcomers at Morgan, Lewis & Bockius and became friends. Both were itching to try a capital case when one suddenly appeared. 

Thompson had sent a letter to the firm—one of more than 100 he mailed out in 1988—begging for pro bono legal counsel to fight his execution. It came to the attention of Banks and Cooney, and they both reached the same conclusion: they needed to take this case.

“We thought John had gotten two unfair trials,” Banks says. “There were significant procedural and constitutional irregularities.”

Next up: meeting the accused. Thompson will never forget it.

“I was like, ‘Oh, Lord, more white people,’” he says, chuckling at the memory. “I’d gone from being accused of killing one of the sons of one of the wealthiest families in New Orleans to being on death row, all in a matter of days, and now it looked like more of everything that had already been involved in my case.”

His skepticism was initially correct. Banks and Cooney had trouble adjusting to the unfamiliar Louisiana legal culture, the cult of personality around powerful New Orleans District Attorney Harry Connick Sr. (yes, the father of the singer/actor) and the glacial pace of post-conviction proceedings. For instance, a judge denied the first petition the lawyers filed—after it sat on his desk for three years.

“We just got pushed around there because we were not local,” Banks says. “It was a little bit of ‘These are lawyers’ tricks—the man is guilty.’”

Robert Glass, of Glass & Reed, a veteran New Orleans criminal lawyer, provided invaluable help when he joined Banks and Cooney on the criminal trial in 1999 and the 2003 retrial.

“It’s not uncommon throughout the state,” Glass says, discussing the slow-moving nature of the proceedings. “Once you get the conviction and sentence affirmed and you’re on post-conviction, it’s on a much slower track. To them, the guy’s in jail and there’s no exigency.”

Banks and Cooney made four key arguments. The first, that prosecutors systematically eliminated black jurors from the jury pool of the original proceedings. Second, that the one juror who held out against the death penalty appeared to have been coerced by the judge and her fellow jurors into changing her vote. Third, that prosecutors argued that a key witness against Thompson would not get a reward, when in fact he received $10,500 from friends and family of Liuzza shortly after the trial. And finally, that the original district attorneys scheduled the murder trial to follow the carjacking trial, creating a situation where Thompson, if he testified on his own behalf, would allow prosecutors to bring up the prior conviction and paint him as a hardened criminal willing to use a gun. He didn’t testify and subsequently wouldn’t be able to proclaim his innocence for another 18 years.

Thompson was hardly an angel—his trade was selling drugs, stolen property and guns, and he had been arrested for illegal possession of a firearm. Worse, two of the items Thompson sold soon after the Liuzza murder included Liuzza’s stolen pinkie ring and the .357 Magnum used to kill him. Perhaps most damning of all: One of Thompson’s own friends, Kevin Freeman, said that he saw Thompson shoot Liuzza and then run away. Banks and Cooney cared only that Thompson was given a fair trial.

The duo makes an impressive, complementary combination. Banks, easygoing and a natural storyteller outside the courtroom, has a soft-spoken tone that enraptures juries and earns their empathy. Cooney, more reticent socially, is intense and aggressive and superhumanly meticulous. They split the work inside and outside the courtroom equally.

“There’s a lot of good chemistry,” says Jerry Litvin, a Morgan Lewis senior counsel who joined the team for the civil trial and who taught Banks and Cooney in a trial training program years earlier. “Michael Banks in the courtroom appears to be more laid-back, a little less intense, but I’ve never seen a better closing argument in my life [than in the civil trial]. Gordon is just as bright and hardworking, and he’s dogged and determined, very disciplined, very controlled.”

Throughout the case, they made Thompson a third member of their legal team, sending a steady stream of documents to keep him up-to-date, taking his calls at any time and developing a high level of trust that ran both ways. 

“John appreciated the fact that they treated him as a human being and not as just a case or a job, says Nancy Wohl, a New Orleans high school English teacher who befriended Thompson while he was in prison and later served as his designated spiritual adviser. “They treated him with—and I can’t say this enough—dignity, and with respect, like a human being.”

In all, Banks and Cooney would end up shuttling to the Crescent City some 25 times over the years, spending more than 75 days there. But though Banks and Cooney kept lobbing their arguments to the highest levels of the state and federal hierarchies, judges kept batting them back down. In April 1999, with a federal court rejecting their appeal and the execution date set for May 20, it looked like the end for Thompson, who was no longer just a client; he was a friend who called every Monday during football season to compare notes on the Saints and the Eagles.

Then, two hours after they’d given Thompson the bad news, the team’s private investigator called and told them she’d discovered a blood report from the crime scene that the defense team from the original trial had never seen. The report read that the perpetrator in the carjacking had type-B blood. Thompson had type O. They later found out that at least one prosecutor knew about the report, but had not revealed it during the trial.

“That’s when we said, ‘You know what? We cannot take anything the state said or did in the original conviction and assume it to be a full disclosure,’” Banks says.

Eleven days before Thompson was scheduled to die, Cooney and Banks went before a judge to ask for a stay of execution. Connick accompanied them, explaining that some of his prosecutors had unfortunately gone rogue—and that he supported Banks and Cooney’s request. They got their stay of execution.

With Thompson’s innocence in the carjacking case definitively proved, the team focused on the murder case, essentially re-investigating it from scratch. They found witnesses with testimony that supported Thompson’s innocence. For example, one witness described the killer as a tall, heavyset man with short hair; in 1984, Thompson was a slender man of medium height who had a large shock of bushy hair. The reports had never been used and had been kept from the defense.

“We put the evidence together and were like, ‘Holy cow! He’s innocent!’” Banks says. “It became increasingly apparent that there was a lot more going on than we had known. We told our investigators: ‘Assume nothing.’”

Using the evidence that their team unearthed, Banks and Cooney put forth a theory of the Liuzza murder that was more credible than the one Connick’s district attorneys had won their trial with. The real murderer was the prosecution’s ace in the hole and Thompson’s erstwhile pal, Kevin Freeman, now dead, who fit the witnesses’ physical description and had sold Thompson both the gun and Liuzza’s pinkie ring.

Eventually, Thompson got his retrial and was acquitted of the murder of Liuzza on May 8, 2003. Banks and Cooney took their client out for a dinner celebration, where Thompson spent his first evening as a free man in nearly two decades—and ate raw oysters for the first time.

“John turned to Gordon and me and said, ‘You just saved me from the death penalty and now you want to kill me?’” Banks says with a laugh.

In February, a jury in a civil trial against the Orleans Parish District Attorney’s Office and several former and current prosecutors, including Connick, awarded Thompson, represented once again by Banks and Cooney, $14 million. 

Connick refuses to comment on the Thompson case. Current District Attorney Eddie J. Jordan Jr. issued a press release disavowing the practices of the office under Connick.

The legal pair’s struggle hasn’t gone unnoticed in Tinseltown—the story of their fight is to be made into a movie starring Matt Damon (as Cooney) and Ben Affleck (as Banks). 

And to portray the defendant? 

“I don’t care who they get for me, as long as he’s handsome enough,” Thompson says.  

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