In blogging a few days ago about prosecutors and “Brick-throwing from glass houses,” I’d mentioned that the decision in Thompson v Connick was still pending. I should have said imminent, as it was announced the next day. And the prosecutorial bacon’s been saved again.The case involved a deputy district attorney’s failure to disclose an exculpatory lab report that would have exonerated John Thompson of a robbery, an outcome that would have been crucial in his subsequent trial for murder. An excellent background recap can be found at Connick v. Thompson | The Harlan Institute.
Last December 9, 2010, I blogged at “Colorado’s Discipline ‘Guru‘ finds Andrew Thomas discipline-worthy but prosecutorial ethics penalties are uncommon” about how “For public policy reasons, courts have long tended toward the view that prosecutors are virtually untouchable. As USA Today reported in its story last October, “Americans can sue almost anyone for almost anything. But they can’t sue prosecutors.” See “Prosecuting offices’ immunity tested.“
In another one of those all too common 5-4 decisions, the U.S. Supreme Court concluded “that Thompson failed to prove deliberate indifference” and so there wasn’t a need to deal with causation, i.e., whether the alleged training deficiency asserted by Thompson was the “ ‘moving force.’ “
Well, that continues the juridical prosecutorial preference pattern, notwithstanding the decision in Brady v. Maryland, discussed below. See “Supreme Court rejects damages for innocent man who spent 14 years on death row.”
Saving bacon but not necessarily Brady.
In Brady v. Maryland 373 U. S. 83, the high court said prosecutors have a sworn duty to turn over exculpatory evidence to the defense. However, the U.S. Supremes later said that individual prosecutors could not be sued for any constitutional violations in the courtroom.
John Thompson, however, had been wrongfully kept on death row for 14 years and had successfully won $14 million in a suit against the Orleans Parish District Attorney’s Office, District Attorney Harry Connick, and several assistant district attorneys in their official capacities under 42 U.S.C § 1983.
But Thompson’s win has been overturned, thanks to an opinion written by Clarence Thomas. Justice Thomas was joined by Justices Alioto, Kennedy, Roberts, and Scalia. The Court held that “A district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation.”
The key part of the Opinion states, “A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train. Bryan Cty., 520 U. S., at 409. Policymakers’ “continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the ‘deliberate indifference’—necessary to trigger municipal liability.” Id., at 407. Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.
“Although Thompson does not contend that he proved a pattern of similar Brady violations, 553 F. 3d, at 851, vacated, 578 F. 3d 293 (en banc), he points out that, during the ten years preceding his armed robbery trial, Louisiana courts had overturned four convictions because of Brady violations by prosecutors in Connick’s office. Those four reversals could not have put Connick on notice that the office’s Brady training was inadequate with respect to the sort of Brady violation at issue here. None of those cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind. Because those incidents are not similar to the violation at issue here, they could not have put Connick on notice that specific training was necessary to avoid this constitutional violation.”
Ginsburg’s Dissent: “Inattention to Brady was standard operating procedure.”
Showing her disapproval of the decision, Justice Ruth Bader Ginsburg read aloud her Dissent from the bench.
In part, she said, “From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.
“What happened here, the Court’s 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. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under §1983.”
