Brady Violations: Failure To Turn Over Exculpatory Evidence

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crim2by Alex Clark

In 1985, the office of Louisiana’s District Attorney for the Orleans Parish, the head of which was District Attorney Harry Connick Sr., charged John Thompson with murder.  After seeing Thompson’s picture in the newspaper, as a result of the murder arrest and charge, he was fingered by the victim of a recent armed robbery as their assailant.

Twenty six yeras later, 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, which proved the innocence of a Louisiana man.
According to SCOTUSblog, predicting “that an armed robbery conviction would keep Thompson from testifying at his murder trial, the Orleans Parish District Attorney’s (‘DA’)’s Office rescheduled the robbery trial to occur before the murder trial.”

Roughly one week before the robbery trial, the DA’s Office had tested the blood sample taken from the robbery victim’s pants and found that the blood was type B.  However, prosecutors neither disclosed the blood test results to Thompson nor introduced them at trial, where Thompson was ultimately found guilty of armed robbery.

Come time for his murder trial, Thompson, fearing impeachment due to his robbery conviction and following the advice of his representation, declined to testify on his own behalf.  Thompson was convicted by a jury and received a sentence of death, which was in part based on the “aggravating factor” of his armed robbery conviction.

It is reported by Slate that Connick “had been elected on a commitment to seek the death penalty for all first-degree murder cases, and Louisiana required an ‘aggravating factor’ to be added to the murder before a jury could sentence Thompson to death.”

Thompson did not have a violent criminal record, so convicting Thompson of the armed robbery charge was vital to the DA’s murder case against him and possibly DA Connick’s political livelihood.

Thompson spent 18 years in prison, 14 of them in isolation.  During his incarceration, Thompson had his execution planned and scheduled by the state of Louisiana seven times.  In 1999, with all his appeals exhausted and within weeks of being executed, a private investigator working with his defense attorneys discovered a report on the blood type of the armed robbery assailant, which had apparently been hidden by prosecutors.

The report indicated that the robbery assailant’s blood type, B, differed from Thompson’s as he has type O blood.  As investigators for Thompson’s defense team delved deeper, they discovered that prosecutors had intentionally withheld not only the blood report, but other key pieces of evidence as well.

Moreover, according to another article by Slate, the “evidence included the fact that the main informant against him had received a reward from the victim’s family, that the eyewitness identification done at the time described someone who looked nothing like him…”

Mother Jones reported that after “learning of the attorneys’ discovery, another former New Orleans prosecutor, Mike Riehlmann, came forward with an astounding tale: Five years earlier, he said, his colleague Gerry Deegan, who was a junior assistant DA on the Thompson case, had told him that he’d hidden the test results and taken the pants from the evidence room. Riehlmann signed an affidavit, and JT’s convictions began to unravel.”

Following these revelations, Thompson’s attorneys moved for a stay of execution, which their client was granted.  The Louisiana Supreme Court then vacated the robbery conviction, thereby removing the aggravating factor, for which his death sentence was in part based, and gave him a sentence of life in prison.

Four years later, in 2003, Thompson was acquitted of the 1984 murder, the victim of which Slate reports (http://www.slate.com/id/2269765/) was the son of a well-connected New Orleans businessman that likely resulted in pressure falling on the DA’s Office to quickly resolve the case, after a retrial.  The jury took 35 minutes to find him innocent of the charges.

Orleans Parish District Attorney’s Office

Many have questioned the culture purportedly created by long-time Orleans Parish DA Harry Connick Sr., who served in that position for nearly three decades and retired in 2003, amongst his office’s prosecutors and whether or not he is responsible for what is characterized by some as unethical prosecutorial conduct.

In 1995, Esquire Magazine photographed former Orleans Parish prosecutor Jim Williams, who tried Thompson’s armed robbery case and assisted in his murder trial.  Displayed prominently in that photo was a desk ornament believed to be symbolic of the mindset DA Connick Sr. had fostered and even encouraged during his time at that post, as some advocates have suggested.  The photograph was part of the magazine’s story on the death penalty.

Williams had a model electric chair on his desk and “seated” in the chair were the photos of five African-Americans who had been successfully prosecuted by the DA’s Office and sentenced to death.  According to a 2007 article posted on the National Association of Criminal Defense Lawyers (NACDL), all five of the men have since been either exonerated (at least two of them) or had their death sentenced commuted to life as a result of procedural problems that occurred at trial. Thompson is one of the exonerated whose photograph was “seated” in the toy electric chair.

At the time of Thompson’s acquittal, DA Connick Sr. claimed that his office follows the rules.  According to a Mother Jones article (http://motherjones.com/politics/2010/09/connick-v-thompson), he continued, “we have an ongoing and continuing obligation to turn over exculpatory evidence and we do.”

However, Nick Trenticosta, who worked on Thompson’s case and was the director of the Louisiana Capital Defense Project (now known as the Center for Equal Justice), that’s just not the case. He is quoted in the Mother Jones article as stating that they “all try to portray it as a rogue prosecutor; a fluke.” Moreover, he stated that DA Connick Sr. awards those prosecutors in his office who are adept at obtaining convictions, which he believes creates a win at any cost mentality.

Many advocates believe this mentality can result in miscarriages of justice, as prosecutors will sometimes feel pressured to “win” and go so far as to hide evidence that could prove defendants’ innocence.

Trenticosta’s claims appear to be supported by the 2008 findings of the Innocence Project New Orleans’ examination, which focuses on DA Connick Sr.’s 28-year tenure.

The following is an excerpt from the report:  “According to available records, favorable evidence was withheld from 9 of the 36 (25%) men sentenced to death in Orleans Parish from 1973-2002. Four of those men were eventually exonerated, having been released only after serving a collective 43 years on death row. In other words, one in every four men sent to death row by the New Orleans District Attorney’s office from 1973-2002 was convicted after evidence that could have cast doubt on their guilt was withheld from them at trial. Four men, about 11%, were completely innocent.”

Frustrating many justice advocates-not to mention those who’ve been wrongfully convicted-is a lack of accountability. Many of them find that prosecutors, whose conduct resulted in the incarceration of innocent men and women, get off relatively easy given their instrumental role in obtaining guilty verdicts in such cases.

In the case of Jim Williams, the former Orleans Parish prosecutor with the toy electric chair, he has received no punishment for his role in convicting Thompson and is currently in private practice.

Orleans Parish Assistant DA Gerry Deegan, who confessed on his deathbed that he had hid evidence that later exonerated Thompson, is no longer alive.  The former prosecutor Mike Riehlmann, to whom Deegan confessed five years prior to Thompson’s private investigator uncovering the blood report, was “briefly” suspended before going on to practice as a defense attorney, according to a Mother Jones article. (http://motherjones.com/politics/2010/09/connick-v-thompson).

One of the four innocent men mentioned in the 2008 Innocence Project report, who had been wrongfully convicted and sent to death row, was 16 year old Shareef Cousin.  In 1995, Cousin became one of the youngest individuals to be sent to death row in the United States.

According to Mother Jones’ reporting, the prosecutor “in the case was shown to have both encouraged witnesses to lie on the stand and withheld a videotape that proved Cousin was playing basketball at the time of the murder.”

In 2005, “a prosecutor in the Cousin case was found guilty of withholding evidence; the Louisiana State Supreme Court gave him a three month suspension, then suspended that sentence,” according to Mother Jones.

After his exoneration, Thompson’s frustrations regarding the absence of prosecutorial accountability were voiced, “nobody in the prosecutor’s office ever faces charges, nobody has to pay.” He concluded, “A slap on the wrist for ‘malfeasance’ and then they’re back at work doing the same old thing.”

His attorney, Trenticosta, concurred, stating that nothing deters prosecutors from operating as they did in Thompson’s case and if “they get caught withholding evidence so what? Nothing happens to them.”

Legal Recourse

In 2003 (or 2005), Thompson sued the Orleans Parish District Attorney’s Office, Connick, Williams and current DA Leon Cinnizzaro.  Further, Thompson “brought suit pursuant to 42 U.S.C. § 1983 alleging that the district attorney’s office is liable for failing to properly train its employees on the requirements of Brady,” according to the Legal Information Institute at Cornell Law School.

Before we continue, it would be prudent to first touch on the legal components of the case.  In 1978, the Supreme Court ruled in Monnell v. Department of Social Services of New York that municipalities and bodies of local government could be held liable under Section 1983 if the “their policies or customs inflict a Constitutional injury,” according to the SCOTUSblog.

Moreover, in 1989, in “City of Canton v. Harris, the Court made clear that a governmental entity can be held liable under Section 1983 for its failure to train employees only if the plaintiff can prove ‘deliberate indifference’ to an obvious risk that constitutional violations will directly result from the policy or custom.”

In their ruling, “the Court discussed two hypothetical scenarios that might meet this standard: (1) cases in which the policymaker has been alerted to a training problem by a series of prior violations; and (2) cases involving single incidents, in which the need for training is so glaringly obvious that constitutional violations are inevitable.”

In 1963, in Brady v. Maryland, the Supreme Court ruled that failure to disclose exculpatory evidence that is material to a defendant’s innocence violates the defendant’s right to due process.   Furthermore, evidence that may reduce the defendant’s sentence must also be disclosed to the defense.

Based on the premise that the DA’s Office was liable for its failure to train prosecutors on Brady violations, a jury awarded Thompson $14 million in damages, a record for the state, and an additional $1 million in attorney’s fees.

The State then appealed the verdict, claiming it would bankrupt the DA’s Office if the verdict were to stand, all the way up to the Fifth Court of Appeals.  In their review of the case, the “panel’s view, because Brady violations are ‘a highly predictable consequence’ of failure to train, a pattern of similar violations is not required to show the ‘deliberate indifference’ required by Canton.”

The SCOTUSblog also reported that “the panel found that Thompson had demonstrated Connick’s deliberate indifference to the obvious need to train prosecutors on Brady by proving that the prosecutors were indeed inadequately trained and that Connick knew that failure to train would result in violations.”  Therefore, under Section 1983, the panel held that Thompson could recover damages.

Subsequently, the State appealed the case one last time, to the US Supreme Court, which heard oral arguments from both sides last fall.

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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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9 thoughts on “Brady Violations: Failure To Turn Over Exculpatory Evidence”

  1. E Roberts Musser

    [quote]Twenty six yeras later, 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, which proved the innocence of a Louisiana man.[/quote]

    [quote]he SCOTUSblog also reported that “the panel found that Thompson had demonstrated Connick’s deliberate indifference to the obvious need to train prosecutors on Brady by proving that the prosecutors were indeed inadequately trained and that Connick knew that failure to train would result in violations.” Therefore, under Section 1983, the panel held that Thompson could recover damages.[/quote]

    I’m confused here. Was the Supreme Court’s ruling the DA was not liable for failure to turn over evidence; or the DA was not liable for a failure to provide adequate training? According to the actual written ruling: “A district attorney’s office may not be held liable under Section 1983 for failure to train its prosecutors based on a single Brady violation.” You need to go back and read the ruling carefully.

    Secondly, usually the gov’t, whether it be federal, state, local, is given great deference to carry out their functions. It is very, very difficult to hold them accountable for what they do or fail to do. If you want to hold DA’s accountable, there needs to be a change in the law…

  2. medwoman

    Perhaps one of you legally sophisticated folks can help me out with this.
    I looked up murder in the American Heritage Dictionary. The two most relevant definitions are:
    1) The unlawful killing of one human being by another,especially with premeditated malice.
    2) to kill another human unlawfully
    So, with these definitions in mind, how is it not conspiracy to commit murder if prosecutors knowingly withhold evidence that they are aware
    Would prove innocence or at least introduce reasonable doubt and seek the death penalty? And in the instance that the individual is executed according to their intent, how does this not constitute murder ?

  3. E Roberts Musser

    To medwoman: You are missing elements of murder – intent and causation. The DA merely tries to obtain a guilty verdict. It is the jury that decides life or death. The intent of the DA is to prove his/her case. The jury causes the death penalty to be imposed.

    The real problem here is the deference that is given to gov’t agencies to carry out their functions. The way society looks at it, if a prosecutor has to look over his/her shoulder every time they did their job, in fear they may be held accountable for a wrong decision, they would not be able to function properly. So there is something called governmental immunity granted to prosecutors.

    From wikipedia: “Sovereign immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, “the king (or queen) can do no wrong”. In many cases, states have waived this immunity to allow for suits; in some cases, an individual may technically appear as defendant on the state’s behalf.”

    From http://www.section1983blog.com: “Prosecutorial immunity does not apply to all prosecutorial conduct. Rather, the reviewing court looks to “the nature of the function performed, not the identity of the actor who performed it.” Forrester v. White, 484 U. S. 219, 229 (1988). This is called the “functional test” to immunities. When a prosecutor performs “advocative” conduct, that is, he “act[s] within the scope of his duties in initiating and pursuing a criminal prosecution,” Imbler v. Pachtman, 424 U. S. 409, 410 (1976), he is absolutely immune from suit.”

  4. E Roberts Musser

    Don’t know why the crossouts – just ignore the line through the text. It reads “act within the scope of his duties in initiating and pursuing a criminal prosecution,” Imbler v. Pachtman, 424 U.S. 409, 410 (1976), he is absolutely immune from suit.”

  5. Alex Clark

    Not mentioned here is that there will be an article to follow this one, which will focus on the SCOTUS decision. The second quote Musser referred to relates to the appellate court panel. I will clarify more if need be.

  6. E Roberts Musser

    [quote]John McCain was a prisoner of war and was tortured. Of course he has a visceral and emotional opposition to the practice of water boarding. Although I respect his opinion, it is too biased to be counted as a primary policy driver. [/quote]

    Hey, I’m w you, I don’t like it either. If there is blatant disregard for abiding by the ethics required of a prosecutor, I see no reason why a prosecutor should not he held accountable. It is bc we don’t hold them accountable that there are horrible abuses. However, ways in which prosectors are held accountable is via the ballot box or they have been pressured into resigning from office (e.g. Duke rape case). So DA’s are not wholly “bulletproof”!

  7. E Roberts Musser

    Oops – for some reason the wrong quote was placed in this article, so let me try that again!

    [quote]I happen to think it is morally wrong, but at least I now understand the reasoning. [/quote]

    Hey, I’m w you, I don’t like it either. If there is blatant disregard for abiding by the ethics required of a prosecutor, I see no reason why a prosecutor should not he held accountable. It is bc we don’t hold them accountable that there are horrible abuses. However, ways in which prosectors are held accountable is via the ballot box or they have been pressured into resigning from office (e.g. Duke rape case). So DA’s are not wholly “bulletproof”!

  8. medwoman

    ERM

    I am curious about your opinion of our current DA. Are you in agreement that there is significant over reaching on his part and/or enough wasting of public funds to warrant the voting ” bullet”.
    I confess to being well out of my league in the legal discussions.

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