James Gill: Candidates not following Connick model

Times have changed since prosecutors in New Orleans seemed to regard the “adversarial” nature of the justice system as an invitation to win at all costs.

Perhaps the new mindset is the legacy of the former, longtime District Attorney Harry Connick, whose assistants were so unconcerned with defendants’ constitutional rights, even in capital cases, that it ceased to come as a surprise when high courts threw out convictions. These days, no candidate for DA would get far by vowing to be like Connick.

There are two candidates in the upcoming election — incumbent Leon Cannizzaro and Lon Burns, a defense attorney and former Connick assistant. The day before qualifying for the election began, both up and announced plans to ensure suspects got an even break.

Cannizzaro said he will form a “conviction integrity unit” in conjunction with the Innocence Project, which always was at loggerheads with Connick and exposed many of the dirty tricks his assistants had employed to put defendants on death row.

While Cannizzaro was announcing a partnership that must have left Connick aghast, Burns set out his platform in a press release. The very first plank is “open file discovery,” whereby defense attorneys have access to all the evidence in the DA’s possession. This is “a proven solution to the problem of evidence violations by prosecutors,” Burns pointed out.

Burns certainly is qualified to address that issue, because, out of all the assistant DAs in Orleans Parish who have withheld evidence, he is the only one ever fined for it by the state Supreme Court.

But Burns has chosen to lead with his chin and takes Cannizzaro to task for an alleged reluctance to turn over exculpatory evidence. He cites the case of the multimurderer Michael Anderson, who is doing life, his death sentence having been thrown out because Cannizzaro’s office failed to turn over a video of a witness interview and did not reveal a deal it made for a jailhouse snitch to testify.

Cannizzaro said the video didn’t turn up until after the trial, but his plans for that “conviction integrity unit” amount to an admission that due process may not always have been observed.

Open-file discovery, Burns explains, will “help to prevent wrongful convictions as well as expensive retrials.” He certainly will recall one expensive retrial, because he caused it.

That was in 2000, when an ex-New Orleans cop named George Lee was in the middle of his third trial for rape. His second one had been abandoned because the prosecution team, which included Burns, had withheld witness statements from the defense.

Next time around, Burns, now the lead prosecutor, put a cop on the stand and asked him to check the back pocket of some pants seized from Lee. When the cop pulled out a bunch of napkins, the courtroom was abuzz with astonishment. The scene of the rape had been littered with napkins that Lee allegedly used to wipe himself. Although no semen had been found on the napkins, the discovery of the napkins was clearly calculated to incriminate Lee.

Judge Arthur Hunter was convinced that Burns had planted the napkins and sentenced him to six months in the slammer for contempt.

The appeal court upheld Hunter, but, when the case came up for a Supreme Court hearing, Connick himself put in an appearance to declare Burns guiltless. “No one has to tell me if my prosecutors did anything wrong. I will not tolerate it,” he said. That remark seems most humorous in light of subsequent revelations, but maybe Connick’s views did carry weight, for the justices wound up delivering an opinion that employed some far-fetched reasoning to give Burns a break.

Perhaps, they wrote, the napkins had simply been overlooked. But that theory would require all the investigating officers and the evidence room staff to have displayed a level of incompetence never seen before or since. The other possibility, according to the justices, was that someone else planted the napkins, although they did not explain how, in that case, Burns would have known where to look for them.

They acknowledged “strong suspicions” that Burns stashed the napkins in Lee’s pocket but concluded his guilt had not been established beyond a reasonable doubt. They did, however, hold that Burns deserved to be held in contempt for the lesser offense of failing to disclose evidence. Thus was Burns spared a jail term but fined $500.

Lee is now in prison, but it took four trials to put him there. Whoever wins the DA’s race is evidently keen to ensure such a fiasco will not be repeated.

James Gill’s email address is jgill@theadvocate.com.