cannot be held liable for misconduct in a criminal case, even if he intentionally and illegally withheld evidence of innocence. The Court’s decision was strongly criticized by scholars and Court observers, and Justice Ruth Bader Ginsburg wrote a compelling dissent, but Thompson did not get any money.
We faced similar obstacles in Walter’s case. After a year of depositions, hearings, and pretrial litigation, we eventually reached a settlement with most of the defendants that would provide Walter with a few hundred thousand dollars. Walter’s claim against Monroe County for Sheriff Tate’s misconduct could not be settled, so we appealed the case to the U.S. Supreme Court. Law enforcement officers generally have no personal resources to pay damages to victims of misconduct, so the city, county, or agency that employs them is typically the target of any civil action that seeks compensation. That’s why we had sought relief from Monroe County for the misconduct of its sheriff. The county took the position that even though the sheriff’s jurisdiction is limited to the county, he’s elected by people only in the county, and he’s paid by the county, he’s not an employee of the county. The county sheriff was an employee of the State of Alabama, the county claimed.
State governments are broadly shielded from recovery for their employees’ misconduct unless the employee works for an agency that can be sued. If Tate was a state officer, Monroe County would have no liability for his misconduct and no recovery would be possible from the State of Alabama. Unfortunately for Walter, the Supreme Court ruled that county sheriffs in Alabama are state officers, again in a close 5–4 decision, which limited our ability to recover damages for the most egregious misconduct in Walter’s case. We ultimately reached settlement with all parties, but I was disappointed that we couldn’t get more for Walter. Adding insult to injury, Tate went on to be re-elected sheriff, and he remains in office today; he has been sheriff continuously for more than twenty-five years.
While the money wasn’t as much as we would have liked, it did allow Walter to restart his logging business. He loved getting back into the woods and cutting timber. He told me that it was working from morning until night, being outdoors, that made him feel normal again. Then one afternoon, tragedy struck. He was cutting a tree when a branch dislodged and struck him, breaking his neck. It was a serious injury that left Walter in very poor condition for several weeks. He didn’t have a lot of care available, so he came to live with me in Montgomery for several months until he recovered. He eventually regained his mobility, although the injury put an end to his ability to cut trees and perform difficult landscape work. I marveled at how he seemed to take it in stride.
“I’ll figure out something else to do when I get back on my feet,” he told me.
After a few months, he went back to Monroe County and started collecting car parts for resale. He owned the plot of land where he’d put his trailer and had become convinced, on the advice of some friends, that he could generate income with a junk business—collecting discarded vehicles and car parts and reselling them. The work was less physically demanding than logging and allowed him to be outdoors. Before long his property was littered with busted vehicles and scrap metal.
In 1998, Walter and I were asked to go to Chicago to attend a national conference where exonerated former death row prisoners were planning to gather. By the late 1990s, the evolution of DNA evidence had helped expose dozens of wrongful convictions. In many states, the number of exonerations exceeded the number of executions. The problem was so significant in Illinois that in 2003, Governor George Ryan, a Republican, citing the unreliability of capital punishment, commuted the death sentences of all 167 people on death row. Concerns about innocence and the death penalty were intensifying, and support for the death penalty in opinion polls began to drop. Abolitionists were becoming hopeful that more profound death penalty reform or possibly a moratorium might be achievable. Our time in Chicago with other exonerated former death row prisoners was energizing for Walter, who seemed more motivated than ever to talk about his experience.
Around the same time, I started teaching at the New York University School of Law. I would travel to New York to teach my classes and then fly back to Montgomery to run