Brady Violations: DA’s Not Liable For Failure To Train Prosecutors on Single-Incident Brady Violations

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by Alex Clark –

On May 11, the Vanguard published the first of a two part series on Brady Violations entitled, “Brady Violations: Failure To Turn Over Exculpatory Evidence.”

On March 29th, 2011, the US Supreme Court ruled 5-4 in Connick v. Thompson that a district attorney’s office was not liable for its prosecutor’s failure to turn over evidence that proved the innocence of a Louisiana man, John Thompson.

US Supreme Court-The Arguments

Cornell Law School’s Legal Information Institute (LII) analyzed the Petitioners’ (referred to as “Connick”) and Respondent’s (referred to as Thompson) arguments regarding whether single incident can establish municipal liability under Section 1983.

Connick argues that prosecutors received proper training with regard to the requirements of Brady. Moreover, in the event that the DA’s Office inadequately trained its prosecutors, this does not qualify as the type of situation in which liability must be attached following a single violation.  According to the LII, Connick also contends that “because attorneys are professionals, they are expected to adhere to professional and ethical standards that are independent of the requirements of their particular workplace.”

Connick states “that the need for training an attorney in those standards is not obvious, implying that one violation of them is not enough to subject the district attorney’s office to liability.”  Likewise, Connick asserts that the only instance in which the Supreme Court suggested that a single violation was sufficient to establish liability differs greatly from the present case.

Connick suggests that the training of police officers and prosecutors are not one in the same as municipalities are required to train their police officers, whereas prosecutors receive their training in law school.  He also contends that a DA should be allowed to rely on his prosecutors “adhering to their professional standards.”  Connick goes on to state that “it would be impossible for the district attorney’s office to ignore a flaw in Brady training without first having seen a pattern of Brady violations.”

On the other hand, Thompson argues that the “facts of this case are similar to those in which the Court has previously held a single violation enough to establish liability,” according to the LII. Thompson claims “that Connick knew that training regarding Brady standards was required, and that a lack of training regarding Brady standards was likely to lead to a violation of constitutional rights.”  He argues further “that the differences between prosecutors and police officers that Connick highlights are ephemeral.”  Thompson concedes that the prosecutors in Connick’s office did attend law school, but that this alone does not “guarantee they ever encountered Brady v. Maryland in their classes.”

Thompson’s also asserts that “although the attorneys may be subject to external ethical and professional standards, it does not mean that they do not need training on certain aspects of their profession.”  Therefore, the fact that Connick’s employees attended law school does not preclude him of “his responsibility to train them.”

Connick argues that the Brady violation was not the result of a training failure, but rather was due to the actions of a loan prosecutor.  Furthermore, Connick asserts that municipal liability only applies when the municipality’s policy is the cause of the violation of one’s constitutional rights.

Moreover, Connick claims that “if the district attorney is liable for the independent and contrary to policy actions of an attorney, the district attorney’s office is being held liable not for its own policies, but for any action by the individual employee, which is the definition of vicarious liability.”

Vicarious liability is the holding of one person liable for the negligence of another, despite the former having not been directly responsible for the damage caused by the negligent party.

On the other hand, Thompson argues that they are not creating vicarious liability in this case because Connick’s failure to properly train prosecutors on Brady matters meant the prosecutors weren’t aware of the requirements of Brady, which is what led to the violation of constitutional rights.

Thompson further argues that at least four prosecutors were aware of the possibly exculpatory evidence and all failed to turn it over.   Therefore, proving that the violations were not the act of a single unscrupulous prosecutor, but a result of Connick’s policies or lack of a policy surrounding Brady material.

Connick claims the programs his office implemented to train prosecutors in Brady material were beyond adequate.  According to the LII, Connick maintains that “the programs he instituted, including weekly trial meetings in which all aspects of trials were scrutinized, including Brady material; the introduction of periodic memoranda describing developments in prosecutors’ professional obligations; and advance sheets, outlining new developments in law show that he thoroughly trained his office on Brady’s standards.”

Furthermore, although “he did not have formal training on to Brady issues, Connick maintains that it was covered extensively through his other programs and that those programs demonstrate that he did not exhibit deliberate indifference to his training responsibilities.”

Thompson’s counter argument was that the Court did not require proof of a pattern of constitutional violations in cases focused on “deliberate indifference.”  They maintain that “awareness is the key to determining whether liability should attach to the district attorney’s office… if Connick was aware of the need for training, and the likelihood that a lack of training would result in constitutional violations, his office should be held liable,” according to the LII’s analysis.

US Supreme Court Ruling

In a 5-4 decision, the Court reversed the Fifth Court of Appeals, holding that a district attorney’s office cannot be held liable under Section 1983 for its failure to train its prosecutors on a single Brady violation.

The majority consisted of what some have characterized as the “conservative bloc” of the Supreme Court.  Moreover, the majority includes Justices Thomas, Scalia, Alito, Kennedy and Chief Justice Roberts.

Falling in the minority, what is sometimes described as the “liberal bloc” of the Supreme Court was Justices Ginsburg, Kagan, Sotomayor and Breyer.

Writing the decision for the majority was Justice Clarence Thomas, which was coupled by Justice Antonin Scalia’s concurring opinion.  Justice Ginsburg wrote the dissenting opinion, which she read from the bench for the first time this term.

As was discussed above, the Supreme Court alluded in Canton to the possibility of a “single-incident” being sufficient to show deliberate indifference in a “in a narrow range of circumstances.”

Thomas writes in his opinion that Thompson, rather than relying on a “pattern of similar Brady violations,” “contends that the Brady violation in his case was the ‘obvious’ consequence of failing to provide specific Brady training, and that this showing of ‘obviousness’ can substitute for the pattern of violations ordinarily necessary to establish municipal culpability.”

In Canton, the Court offered a hypothetical situation in which a “city that arms its police force with firearms and deploys the armed officers into the public to capture fleeing felons without training the officers in the constitutional limitation on the use of deadly force.”

The Court furthered, considering “the known frequency with which police attempt to arrest fleeing felons and the ‘predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights,’ the Court theorized that a city’s decision not to train the officers about constitutional limits on the use of deadly force could reflect the city’s deliberate indifference to the ‘highly predictable consequence,’ namely, violations of constitutional rights.”

Thomas states that a failure to train prosecutors in Brady violations does not meet the narrow hypothetical single-incident scenario laid out in Canton. Thomas argues that armed officers are forced to make “split-second decisions with life-or-death consequences.”

“There is no reason to assume that police academy applicants are familiar with the constitutional constraints on the use of deadly force,” he writes.  Furthermore, “in the absence of training, there is no way for novice officers to obtain the legal knowledge they require.”  As such, Thomas finds an “obvious need for some form of training.”

However, he argues, this is where general public employees and attorneys differ, for the latter “are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment.”  Moreover, Thomas states, prior to obtaining a license to practice law, attorneys must graduate from law school or pass a “substantive exam” in most cases.

The “threshold requirements,” Thomas contends, “are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules.”

He further states that an attorney’s training does not end at graduation in most cases, as most jurisdictions demand that they meet continued education requirements.  Prior to Louisiana adopting continuing-education requirements, “it imposed similar general competency requirements on its state bar.”

Beyond those requirements, Thomas asserts, attorneys who are practicing with other attorneys receive on-the-job training as they learn from the more experienced in that profession.

Moreover, he writes, “in the Orleans Parish District Attorney’s Office, junior prosecutors were trained by senior prosecutors who supervised them as they worked together to prepare cases for trial, and trial chiefs oversaw the preparation of the cases. Senior attorneys also circulated court decisions and instructional memoranda to keep the prosecutors abreast of relevant legal developments.”

Thomas also discusses the fact that attorneys in all jurisdictions “must satisfy character and fitness standards to receive a law license and are personally subject to an ethical regime designed to reinforce the profession’s standards.”

He continues, “Trial lawyers have a ‘duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.'”  It’s the duty of the prosecutor to not simply convict, but to seek justice and among the “prosecutors’ unique ethical obligations is the duty to produce Brady evidence to the defense.”

Thomas found that, given the “regime of legal training and professional responsibility, recurring constitutional violations are not the ‘obvious consequence’ of failing to provide prosecutors with formal in-house training about how to obey the law.”

Moreover, he writes that prosecutors “are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain.”  Thomas wrote that it is not unreasonable for a district attorney “to rely on prosecutors’ professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations in ‘the usual and recurring situations with which [the prosecutors] must deal.’

Thomas concludes that a “licensed attorney making legal judgments, in his capacity as a prosecutor, about Brady material simply does not present the same ‘highly predictable’ constitutional danger as Canton‘s untrained officer.”

In the hypothetical scenario put forth by the Court in Canton, Thomas states, they relied on the fact that the armed officers possessed “no knowledge at all of the constitutional limits on the use of deadly force.”

However, Thomas opines, “it is undisputed here that the prosecutors in Connick’s office were familiar with the general Brady rule.”  Thompson’s “complaint therefore cannot rely on the utter lack of an ability to cope with constitutional situations that underlies the Canton hypothetical, but rather must assert that prosecutors were not trained about particular Brady evidence or the specific scenario related to the violation in his case.”

Thomas contends that this “sort of nuance simply cannot support an inference of deliberate indifference here.”

Although the Court holds that Thompson only proved a single Brady violation and not a pattern of violations by the DA’s Office, Justice Ginsburg highlights in her dissent that “the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.”

She continues, “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.”

Further, “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.”

Ginsburg states that the prosecutors in this case did so across a timeline of nearly two decades, failing to set the record straight “despite multiple opportunities” to do so.  She further writes, given “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.”

Ginsburg opines, “What happened here, the Court obscures, was no momentary oversight, no single incident of a lone officer’s misconduct.”  She found that the “evidence demonstrated that misperception and disregard of Brady‘s disclosure requirements were pervasive in Orleans Parish.”  Furthermore, the evidence “established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under §1983.”

Ginsnburg declares that she dissents “from the Court’s judgment mindful that Brady violations, as this case illustrates, are not easily detected.”  Moreover, she mentions that if it were not for the “chance discovery made by a defense team investigator weeks before Thompson’s scheduled execution, the evidence that led to his exoneration might have remained under wraps.”

She contends that the “prosecutorial concealment Thompson encountered, however, is bound to be repeated unless municipal agencies bear responsibility-made tangible by §1983 liability-for adequately conveying what Brady requires and for monitoring staff compliance.”

This, she argues, is supported by the Courts example in Canton, which states that “municipal liability under §1983 ‘where the failure . . . amounts to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.'”

Ginsburg then goes on to discuss the “contextual account of the Brady violations that infected Thompson’s trials,” most of which was touched on earlier in the background portion of this story last week.

In Scalia’s concurring opinion, he finds the fault in the case to be on a single “miscreant prosecutor,” however Ginsburg asserts that at least five prosecutors “disregarded his Brady rights.”

In his opinion, Thomas states that the issue at hand in centered on a single Brady violation, which he attributes to the prosecution’s failure to turn over the blood sample.  Yet, in Ginsburg’s dissent, she highlighted other failures by the prosecution.

A man who knew Thompson, Richard Perkins, approached the family (Liuzza Family) of the murder victim after the family had offered a $15,000 reward that lead to the conviction of the murderer.  According to Ginsburg, police “officers surreptitiously recorded the Perkins-Liuzza conversations.”

Contained in the recorded conversation, Perkins tells the family “I don’t mind helping [you] catch [the perpetrator], . . . but I would like [you] to help me and, you know, I’ll help [you].”  Once the family told Perkins, “we’re on your side, we want to try and help you,” Perkins fingered Thompson and another man, Kevin Freeman, for the murder.  Perkins had stated that Freeman told him about the murder, which had been documented in a police report.  Consequently, both Thompson and Freeman were arrested on murder charges.

Thompson, 5’8″ and wearing his hair in a large “Afro” style at the time of the murder, didn’t fit the eyewitnesses’ initial description of the assailant who they described as being six feet tall with hair cut close to his scalp.  These eyewitness identifications were not disclosed to the defense or the court.

Freeman, “was six feet tall and went by the name ‘Kojak’ because he kept his hair so closely trimmed that his scalp was visible,” fit the initial description of the assailant of the murder victim more so than Thompson, writes Ginsburg in her dissent.  Furthermore, “Freeman became the key witness for the prosecution at Thompson’s trial for the murder of Liuzza.”

It was following Thompson’s arrest and charge for the Liuzza murder that “the father of the armed robbery victims saw a newspaper photo of Thompson with a large Afro hairstyle and showed it to his children.”  Ginsburg then goes on to state that the man “reported to the District Attorney’s Office that the children had identified Thompson as their attacker, and the children then picked that same photo out of a ‘photographic lineup.'”

According to Ginsburg, charging “Thompson on the basis of these questionable identifications, the District Attorney’s Office did not pause to test the pant leg swatch dyed by the perpetrator’s blood.”  What’s more, this “lapse ignored or overlooked a prosecutor’s notation that the Office ‘may wish to do [a] blood test.'”

Ginsburg’s dissent describes how the prosecution’s responses to Thompson’s requests for “access to all materials and information ‘favorable to the defendant’ and ‘material and relevant to the issue of guilt or punishment,’ as well as ‘any results or reports’ of  ‘scientific tests or experiments,’… fell far short of Brady compliance” in the armed robbery trial.

First, the prosecution blocked the defense from examining the blood swatch taken from the pant leg of the armed robbery victim.  The swatch was checked out of the evidence locker just before the defense was allowed to inspect the evidence. Thompson’s defense attorneys inspected all available evidence, but the robber’s blood (i.e. the blood swatch) was not among the available evidence.  The defense attorneys also were not told of the blood swatch’s existence or “its recent removal from the property room.”

Second, prosecutors Eric Dubelier and Bruce Whittaker, each involved in both of Thompson’s successful prosecutions, rushed orders for pretrial tests of the blood swatch.  Whittaker received the results just two days prior to the trial, at which point he is said to have placed the reports on fellow prosecutor Jim Williams’ desk.  Despite the lab results conclusively identifying the assailants blood type, the DA’s Office never turned the report over to the defense.

Third, Ginsburg writes, prosecutor “Deegan checked the swatch out of the property room on the morning of the first day of trial, but the prosecution did not produce the swatch at trial.”  The swatch has since never been recovered.

Thompson was convicted by a jury for the armed robbery charge based entirely on the descriptions given by the three victims.  The “court sentenced him to 49.5 years without possibility of parole-the maximum available sentence,” writes Ginsburg.

Ginsburg contends that prosecutors from the DA’s Office continued to ignore Brady during Thompson’s murder trial.

She continues, “prosecuting Thompson for armed robbery first-and withholding blood evidence that might have exonerated Thompson of that charge-the District Attorney’s Office disabled Thompson from testifying in his own defense at the murder trial.”  Moreover, “impeaching use of the prior conviction would have severely undermined Thompson’s credibility.”

Therefore, “because Thompson was effectively stopped from testifying in his own defense, the testimony of the witnesses against him gained force.”  She argues that the prosecutions’ failure to disclose evidence “that could have impeached those witnesses helped to seal Thompson’s fate.”

Ginsburg first asserts that the prosecution hindered Thompson’s ability to impeach Perkins, who testified against him in the murder trial.  Further, she states, “Perkins testified that he volunteered information to the police with no knowledge of reward money.”  However, “Because prosecutors had not produced the audiotapes of Perkins’ conversations with the Liuzza family (or a police summary of the tapes), Thompson’s attorneys could do little to cast doubt on Perkins’ credibility.”

Second, she contends, the prosecution undermined Thompson’s ability to impeach Freeman, a key witness, whose testimony at trial differed from police report’s account.  Further, the prosecution “did so by failing to disclose a police report containing Perkins’ account of what he had learned from Freeman about the murder.”  Seeing as how the defense was unaware of such a report, “Thompson could not point to the inconsistencies,” she writes.

Lastly, Ginsburg argues, “and most vital, the eyewitness’ initial description of the assailant’s hair … was of prime relevance, for it suggested that Freeman, not Thompson, murdered Liuzza.”  She argues that the “materiality of the eyewitness’ contemporaneous description of the murderer should have been altogether apparent to the prosecution.”

Ginsburg goes on to make the point that beyond impeding Thompson’s ability to impeach the eyewitnesses, as well as the police officer who first interviewed them, the “omission left defense counsel without knowledge that the prosecutors were restyling the killer’s ‘close cut hair’ into an ‘Afro.'”

She accuses the prosecution of finessing “the discrepancy between the eyewitness’ initial description and Thompson’s appearance.”  Ginsburg states that the prosecution asked leading questions of the eyewitnesses, thus getting them to “agree on the stand that the perpetrator’s hair was ‘afrotype,’ yet ‘straight back.'”

Ginsburg goes on, “the police officer-after refreshing his recollection by reviewing material at the prosecution’s table… characterized the witness’ initial description of the perpetrator’s hair as ‘black and short, afro style.'”

She finishes her dissent, with regard to the contextual Brady violations, by contending that the “prosecutors well knew, nothing in the withheld police reports, which described the murderer’s hair simply as ‘close cut,’ portrayed a perpetrator with an Afro or Afrostyle hair.”

The jury in the murder case found Thompson, who “was already serving a near-life sentence for attempted armed robbery,” guilty of first-degree murder.  Therefore, the prosecution argued, according to Ginsburg’s dissent, “the only way to punish him for murder was to execute him.”

She concludes, the “strategy worked as planned; Thompson was sentenced to death.”

Ginsburg contends that ample “evidence supported the jury’s finding that additional Brady training was obviously necessary to ensure that Brady violations would not occur.”  Therefore, she found “no cause to upset the District Court’s determination,” which the Fifth Circuit affirmed.

The evidence in support of the jury’s finding is as follows: “(1) Connick, the Office’s sole policymaker, misunderstood Brady. (2) Other leaders in the Office, who bore direct responsibility for training less experienced prosecutors, were similarly uninformed about Brady. (3) Prosecutors in the Office received no Brady training. (4) The Office shirked its responsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements.”

Connick, as the sole policy maker of the office, had admitted to the jury in his sworn testimony that his previous understanding of Brady was “too narrow.”  What’s more, Ginsburg argues, Connick continued to “misstate” Brady requirements during the trial.  She offers the example in which Connick “urged that there could be no Brady violation arising out of ‘the inadvertent conduct of [an] assistant under pressure with a lot of caseload.'”  However, the court accurately advised the jury that when determining if a Brady violation had occurred, “good or bad faith of the prosecution does not matter.”

The DA Office’s leaders exhibited similar misunderstanding of Brady violation in their sworn testimony, writes Ginsburg.  One of the prosecutor’s, Dubelier, “admitted that he never reviewed police files, but simply relied on the police to flag any potential Brady information.”

However, as the jury was correctly instructed, “an individual prosecutor has a ‘duty . . . to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.'”

Williams, a prosecutor involved in Thompson’s cases, was asked if “Brady material includes documents in the possession of the district attorney that could be used to impeach a witness, to show that he’s lying.” Williams replied  “simply, and mistakenly, ‘No'” according to Ginsburg’s dissent.

Ginsburg contends that Connick should have known that prosecutors in his office had not received the necessary training in Brady violations.  She continues, in “1985, Connick acknowledged, many of his prosecutors ‘were coming fresh out of law school,’ and the Office’s ‘[h]uge turnover’ allowed attorneys with little experience to advance quickly to supervisory positions.”

Furthermore, at that time Dubelier and Williams were two of the office’s highest-ranking attorneys despite neither of them having more than five years experience as prosecutors.  Both learned the craft from the Orleans Parish DA’s Office, but “Dubelier and Williams told the jury that they did not recall any Brady training in the Office.”

Connick previously testified that he left the training up to his supervisors, but “Riehlmann could not ‘recall that [he] was ever trained or instructed by anybody about [his] Brady obligations,’ on the job or otherwise.”  Ginsburg argues that had “Brady‘s importance been brought home to prosecutors, surely at least one of the four officers who knew of the swatch and lab report would have revealed their existence to defense counsel and the court.”

At the time of Thompson’s trials, the State of Louisiana did not require continuing legal education for its attorneys.  Therefore, Ginsburg writes, the main “responsibility for keeping prosecutors au courant with developments in the law, therefore, resided in the District Attorney’s Office.”

In 1987, the office had a policy manual, which was distributed to prosecutors when Connick was elected in 1974 through 1987, relating to “memoranda on criminal law and practice circulated to prosecutors.”

Only four sentences pertaining to Brady violations were contained within that manual and nothing more.  Ginsburg characterizes the little that was present as a “slim instruction…notably inaccurate, incomplete, and dated.”

Ginsburg notes that “Connick resisted an effort to hold prosecutors accountable for Brady compliance because he felt the effort would ‘make [his] job more difficult.'”  Moreover, Connick never once disciplined or fired a prosecutor for a Brady violation.

It comes as no surprise to Ginsburg, in light of the “multiple shortfalls” she lists, which were the basis for the juries determination in this case, “that Brady violations in fact occurred, severely undermining the integrity of Thompson’s trials.”

In Canton, she says “this Court spoke of circumstances in which the need for training may be ‘so obvious,’ and the lack of training ‘so likely’ to result in constitutional violations, that policymakers who do not provide for the requisite training ‘can reasonably be said to have been deliberately indifferent to the need’ for such training.”

Ginsburg is certain that Thompson’s case “belongs in the category Canton marked out.”

The District Court instructed the jury that for Thompson to prevail on his claim of “deliberate indifference,” the jury must have been persuaded on three points: (1) “Connick ‘was certain that prosecutors would confront the situation where they would have to decide which evidence was required by the Constitution to be provided to the accused.'”  (2) “the situation involved a difficult choice[,] or one that prosecutors had a history of mishandling, such that additional training, supervision or monitoring was clearly needed.” (3) “the wrong choice by a prosecutor in that situation would frequently cause a deprivation of an accused’s constitutional rights.”

Ginsburg states “even at trial prosecutors failed to give an accurate account of their Brady obligations” and the evidence “permitted the jury to conclude that Connick should have known Brady training in his office bordered on ‘zero.'”

Connick, she contends, very clearly understood that newer prosecutors needed “guidance and should not be left to grapple with Brady on their own.”  It was “‘obvious’ to him, the jury could find, that constitutional rights would be in jeopardy if prosecutors received slim to no Brady training.”

Therefore, relying on the “evidence presented, the jury could conclude that Brady errors by untrained prosecutors would frequently cause deprivations of defendants’ constitutional rights.”

Ginsburg writes that a municipality which arms its police officers without giving them proper training with regard to the “constitutional limits on the use of deadly weapons places lives in jeopardy.”  Similarly, she argues, a “municipality that empowers prosecutors to press for a death sentence without ensuring that those prosecutors know and honor Brady rights may be no less ‘deliberately indifferent’ to the risk to innocent lives.”

She contends that despite all this, the Court has found Canton “inappropriate” in Thompson’s case.  The Court “maintains that professional obligations, ethics rules, and training-including on-the-job training-set attorneys apart from other municipal employees, including rookie police officers.”

Ginsburg accuses the Court of advancing “Connick’s argument with greater clarity, but with no greater support.”  She then goes on to posit the question: “On what basis can one be confident that law schools acquaint students with prosecutors’ unique obligation under Brady?”

She offers Whittaker’s testimony as an example, for he could not recall covering Brady in his law school’s criminal procedure course.  Further, “Dubelier’s alma mater, like most other law faculties, does not make criminal procedure a required course.”

Connick argues that bar examination attorneys are required to take ensures that new attorneys will understand Brady requirements.  However, Ginsburg counters, “from 1980 to the present, Brady questions have not accounted for even 10% of the total points in the criminal law and procedure section of any administration of the Louisiana Bar Examination.”

What’s more, she argues, those sitting for the bar examination must only pass five of the exam’s nine sections.  Lastly, “One can qualify for admission to the profession with no showing of even passing knowledge of criminal law and procedure.”

In response to the majority’s opinion that attorneys are “are equipped with the tools to find, interpret, and apply legal principles,” Ginsburg finds that “blinks reality” and misrepresents the facts of this case.

Ginsburg closes with, “Connick, who himself had been indicted for suppression of evidence, created a tinderbox in Orleans Parish in which Brady violations were nigh inevitable.”  Moreover, when Brady violations “did occur, Connick insisted there was no need to change anything, and opposed efforts to hold prosecutors accountable on the ground that doing so would make his job more difficult.”

A District Attorney cognizant of his “office’s high turnover rate, who recruits prosecutors fresh out of law school and promotes them rapidly through the ranks, bears responsibility for ensuring that on-the-job training takes place.”  The buck, Ginsburg says, “stops with him.”

Based on the evidence and arguments put forth, Ginsburg affirmed the judgement of the Fifth Court of Appeals and upheld the Distrcit Court jury decision awarding Thompson damages “for the gross, deliberately indifferent, and long-continuing violation of his fair trial right.”

In response, Thomas writes, the “dissent rejects our holding that Canton‘s hypothesized single-incident liability does not, as a legal matter, encompass failure to train prosecutors in their Brady obligation.” Furthermore, “It would instead apply the Canton hypothetical to this case, and thus devotes almost all of its opinion to explaining why the evidence supports liability under that theory.”

However, Thomas asserts, they miss the point as the “reason why the Canton hypothetical is inapplicable is that attorneys, unlike police officers, are equipped with the tools to find, interpret, and apply legal principles.”

Thomas then opines, by the end of its opinion, the dissent “reveals that its real disagreement is not with our holding today, but with this Court’s precedent.”   He furthers, the “dissent does not see ‘any reason,’…for the Court’s conclusion in Bryan County that a pattern of violations is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.”

Lastly, “As our precedent makes clear, proving that a municipality itself actually caused a constitutional violation by failing to train the offending employee presents ‘difficult problems of proof,’ and we must adhere to a ‘stringent standard of fault,’ lest municipal liability under §1983 collapse into respondeat superior.

Response from the Wrongfully Convicted

Following the Court’s decision in Connick v. Thompson, on March 29th, a letter (http://www.innocenceproject.org/docs/2011/ExonereeLetterReThompson.pdf) signed by 19 wrongfully convicted individuals was released by the Innocence Network.  This letter was sent to US Attorney General Eric Holder, President of the National District Attorneys Association James Reams and President of the National Association of Attorneys General Roy Cooper.

In the letter, they state that the Court “took away most of the only remaining means those of us who have been wrongfully convicted of a crime had for holding prosecutors liable for their misconduct.”  They make the point that while doctors and airline pilots can be held liable for their misconduct, the Court has effectively granted prosecutors complete immunity.

They go on to write that they and their families have experienced a great deal of suffering “at the hands of careless, overzealous and unethical prosecutors.”  They claim that the Court’s ruling in this case will only “further embolden those prosecutors who are willing to abandon their responsibility to seek justice in their zeal to win convictions.”

The letter then goes on to, given their belief that the wrongfully convicted cannot rely on the courts to hold prosecutors liable, demand answers as to how the addressees “intend to do to put a check on the otherwise unchecked and enormous power that prosecutors wield over the justice system.”

The letter quotes Former Attorney General and Supreme Court Justices Robert H. Jackson, who said, “The prosecutor has more power over life, liberty, and reputation than any other person in America.”

They cite a 2009 report, Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, which purportedly discovered that “prosecutors were guilty of misconduct 707 times from 1997 to 2009, yet were disciplined only 7 times.”

Moreover, they write, a “USA Today investigation by Brad Heath and Kevin McCoy that was published on Sept. 23, 2010, documented 201 instances where federal prosecutors violated laws or ethics rules since 1997 and noted that only one of those prosecutors was suspended from practicing law – and that was only for one year.”

They claim that in “many” of their wrongful conviction cases, prosecutorial misconduct was found to have occurred, but was deemed later by the courts as “harmless.”  That, they write, could not be further from the truth, for in their cases “each act had profoundly harmful effects on our lives.”

Collectively, they claim to “represent hundreds of years in prison, separated from our wives, husbands, children, parents, brothers, sisters, grandparents and other loved ones, who suffered their own shame and wasted hundreds of thousands of dollars on lawyers and spent countless sleepless nights worrying about our well being.”

The letter states that the “misconduct contributed to nearly unbearable depression and unhappiness, loss of jobs and career opportunities, the derailing of educations and forever destroyed hopes and dreams.”

They are, nevertheless, attempting to repair their lives, but “will never regain the lives we had before we were wrongfully convicted at the hands of careless or deceitful prosecutors.”

In their friend-of-the-court briefs, in recent cases pertaining to prosecutorial misconduct, the National District Attorneys Association, the National Association of Assistant United States Attorneys and the Solicitor General “claim that there are already plenty of systems in place to cure the problems of misconduct, including: internal disciplinary systems, state bar disciplinary systems, monitoring by the courts, and in extreme cases, criminal prosecution.”

However, the letter claims that these “systems didn’t do a thing to prevent prosecutorial misconduct in our cases.”  They write further, “as far as we can tell, none of these systems were brought to bear on the prosecutors in our cases.”  In their minds, these existing systems “do nothing at all.”

They then ask a series of questions to those addressed in the letter such as, “How have the systems been fixed to prevent future misconduct and errors?”

The letter closes with “as you consider the significance of today’s decision, please know that those of us who have been the victims of prosecutorial misconduct are eager to hear what you intend to do to ensure that others don’t suffer injustice as we have.”

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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5 Comments

  1. E Roberts Musser

    If you don’t like the law of the land, which grants prosecutorial immunity except in very narrow, limited cases, then you need to change the law. This is where Ginsberg went wrong…

  2. David M. Greenwald

    BTW, as I post I am in San Francisco watching Mr. Thompson speak right now at a Public Defender’s “Justice” Summit. One of the speakers is the current SF DA.

  3. E Roberts Musser

    [quote]Having prosecutorial immunity is problematic given the huge power that the prosecutor has.[/quote]

    Agreed. But how do you craft legislation that would hold prosecutors accountable, yet leave them free enough to do their jobs? Try it, and see what you come up with…

  4. David M. Greenwald

    I’m going to flip the question on you- how do professions other than prosecutors get held accountable but allowed to their jobs. Seems like we manage the issue at every level of society, so why are prosecutors immune to the same thing that an air traffic controller has to face – and don’t tell me that prosecutors do not hold people’s lives in the balance every bit as much. May not be hundreds of lives in one fell swoop, but they do hold hundreds of lives in the balance with the decisions they make.

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