Constitutional Law, Criminal law, Supreme Court, Torts

CONNICK V. THOMPSON AND PROSECUTORIAL IMPUNITY

Submitted by Mike Appleton, Guest Blogger

John Thompson spent 18 years in prison, 14 of them on death row, following convictions for attempted armed robbery and murder in separate incidents. A scant month before the scheduled execution, an investigator hired by Thompson’s lawyers made a startling discovery in the crime lab archives: a lab report which completely exonerated Thompson on the attempted robbery charge.The report contained results of a test conducted on blood left by the robber on the clothing of one of the victims. The robber had type B blood. Thompson’s is type O.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a prosecutor has a duty to disclose exculpatory evidence to the accused. The prosecutor in Thompson’s attempted robbery case deliberately withheld the test results from defense counsel. At his subsequent trial on the murder charge, Thompson understandably declined to testify so that the attempted robbery conviction could not be used for impeachment purposes.

In due course both convictions were overturned. A second trial on the murder charge produced a defense verdict after only 35 minutes of jury deliberation. Thompson thereupon sued Harry Connick, the New Orleans district attorney, under several theories, including a violation of Section 1983 of the Civil Rights Act of 1871. The jury awarded Thompson $1,000,000.00 for each year spent on death row, a total of $14,000,000.00. The verdict was affirmed by the Fifth Circuit Court of Appeals.

Thompson will never see a dime of his award. In a 5-4 decision announced on March 29th, the Supreme Court reversed the Fifth Circuit. Writing for the majority, Justice Thomas found the evidence of prosecutorial misconduct was insufficient to support a conclusion that the district attorney had been “deliberately indifferent” to his duty to insure that prosecutors in his office adhered to the requirements of the Brady rule.

Justice Thomas reaches his conclusion by framing the issue in a manner which admits of no alternative result. The sole question for the court, he says, is whether Section 1983 liability may be based upon “a single Brady violation.” Of course it can’t. The reason is that a district attorney cannot be held liable for the actions of his subordinates under the theory of respondeat superior. Instead, it was necessary for Thompson to establish a pattern of such violations in Connick’s office sufficient to permit a conclusion that Connick was deliberately indifferent to the need to adequately train his staff on the Brady requirements.

But Justice Thomas ignores substantial evidence in the record that Connick’s office was a virtual cesspool of prosecutorial misconduct. Indeed, at least four prosecutors were aware of the withheld evidence in Thompson’s armed robbery trial. The responsible prosecutor had actually confessed to a colleague that he had withheld the lab report. Connick had had a number of prior convictions reversed for Brady violations. Connick himself openly admitted to never having cracked a law book subsequent to becoming district attorney in 1974.

Justice Thomas finds this record unpersuasive because, as he notes, none of the previous Brady violations “involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind.” Accordingly, he concludes, Connick could not have been on notice of the need to train his staff concerning the specific violation in Thompson’s case. Besides, he continues, prosecutors are trained attorneys who can be expected to know and understand their obligations. I don’t know how many potential violations exist in the Brady universe, but presumably Justice Thomas would require that Connick’s prosecutors commit all of them before “deliberate indifference” might be inferred.

The decision in this case is not so much about law as it is about a public policy position intended to impose the most formidable barriers possible to pursuing a Section 1983 claim against a state agency. I prefer to call it the doctrine of prosecutorial impunity.

405 thoughts on “CONNICK V. THOMPSON AND PROSECUTORIAL IMPUNITY”

  2. http://www.youtube.com/watch?v=HJ4KlqF547U

    [youtube http://www.youtube.com/watch?v=HJ4KlqF547U&w=640&h=390%5D

    they nasty….

    The seven sisters got nothing on him
    I’m talking about a lover who’s fast as the wind
    Everyone will talk about how he got me fixed
    It ain’t voodoo, it’s just that twist
    He will be the greatest lover that ever come to pass
    Don Juan ain’t got the half the chance

    He’s a tough lover (yeah, yeah)
    A tough lover (woo)
    He’s a tough lover (yeah, yeah)
    A tough lover (oh oh)

    He’ll make me laugh, he’ll make me cry
    He’ll be so tough he’ll make Venus come alive
    He’ll do anything that he wants to do
    Step on Jesse James’s blue suede shoes, yeah

  3. See “Gilchrist v. Citty, 173 Fed.Appx. 675 (10th Cir. 04/04/2006)”:

    “Former Oklahoma City Police Department forensic chemist…performed forensic tests in OCPD’s investigations of violent crimes and testified in court regarding her analyses… commendations and letters of appreciation …administration and operation of OCPD’s serology laboratory… new DNA laboratory … early 1990s…outside consultant… evaluated…1999…. failed to properly document ….

    Mitchell v. Gibson, 262 F.3d 1036 (10th Cir. 2001)…characterized some portions of Gilchrist’s testimony as “without question, untrue” and concluded some of her courtroom statements were, “at least, misleading.”…

    Laura Schile, an experienced DNA analyst…..problems came to light regarding evidence handling, packaging, and storage in the serology laboratory. ..evidence was missing…missing serology case files for the years ….exposed and unsealed evidence for a death-penalty case ….

    Other evidence boxes had been wet, or were rotting, inappropriately sealed, or inappropriately marked ….serology laboratory freezer malfunctioned and evidence was contaminated…..evidence was not stored and packaged properly.

    Importantly, Boshell’s report also alleged Gilchrist performed inaccurate forensic analyses, interpreted
    evidence incorrectly, and offered misleading testimony in criminal cases…. Gilchrist erred in her analysis of hair samples in the murder case….incorrectly determined the hair samples were consistent…..wrongly ruled out another suspect as a possible hair donor… failed to disclose evidence and may have deliberately hidden test results…Association of Crime Scene Reconstruction had expelled Gilchrist for ethical violations….rape case….Gilchrist asserted the slides contained sperm and semen…..reexamined the slides…sperm was not present on any of the submitted slides….Special Agent Douglas Deedrick of the FBI ….Gilchrist’s laboratory notes frequently were incomplete or inadequate and asserted Gilchrist erred in identifying or interpreting samples in each of the five cases where she had used glass microscope slides to make hair or fiber comparisons….

    Gilchrist “made statements that went beyond the acceptable limits of forensic science.”

  4. Mike Appleton wrote:

    “Indeed, at least four prosecutors were aware of the withheld evidence in Thompson’s armed robbery trial. The responsible prosecutor had actually confessed to a colleague that he had withheld the lab report.

    Is the “responsible” prosecutor still allowed to practice law? If so, why?

    This stinks to high heaven…

  5. One almost free mechanism for improving prosecutors’ behavior could / would be to force them to sign statements under penalty of perjury that they have released all exculpatory evidence and they could be forced to update their criminal complaint before trial to make sure that all the probable cause evidence is listed and believed accurate.

  6. Thank you for posting that, AY:

    From the link:

    Fully convinced of Morin’s guilt and blind to ample available evidence to the contrary, the Crown confidently built a dubious case on coached and perjured testimony from police, experts, and citizens; and it expended a great deal of resources to convict an innocent man.

    Unthinkable?

    When prosecutors and police violate citizens’ rights under the delusion that it is for a greater good, when the state itself becomes a lawbreaker, or uses lawbreakers to achieve an aim, the words of Supreme Court Justice Louis Brandeis take on new life: “The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning, but without understanding.”

    (end excerpt)

  7. I was just reading this article on Saturday…. It should scare the hell out of many a good people…if they will do this for the innocent…what would they do to you…. and remind you this was back in 98… that the article was written….

    The Ordeal of Guy Paul Morin: Canada Copes With Systemic Injustice
    By Jack King
    Jack King is NACDL’s Public Affairs Director.

    The acquittal, the conviction, and then the exoneration of an innocent man led the Province of Ontario to conduct an unprecedented top-to-bottom examination of its criminal justice system.

    Staggering in its scope, the investigation uncovered significant concerns, many of which are familiar to defense counsel in the United States, but which were never thought of as Canadian problems. The inquiry found perjured testimony by prosecution witnesses, incompetence and cover-up in the country’s premier center for forensic sciences, suppression of exculpatory evidence by police and prosecutors, a possibly contaminated crime scene, poor evidence handling, and lost evidence.

    “On July 30, 1992, an innocent person was convicted of a heinous crime,” a voluminous 1400-page report on the investigation begins. “The man was Guy Paul Morin and the crime was the first-degree murder of nine-year-old Christine Jessop, abducted from Queensville, Ontario, on October 3, 1984. It was not until January 23, 1995, almost 10 years after he was first arrested, that Guy Paul Morin was exonerated as a result of sophisticated DNA testing not previously available.”

    An innocent man caged as a murderous monster, while somewhere a killer walks free disguised in the shape of a man. Police, forensic experts and Crown prosecutors were so confident — so smug — that they built their case backwards, manipulating and creating evidence to prove the guilt of a suspect who could not possibly be innocent. But he was.

    http://www.nacdl.org/public.nsf/championarticles/19980808?opendocument

  8. This just sucks….If giving the reason as this…then Owners of companies are not responsible if they fail to properly train its employees… I just wonder if this is setting up the BP (read in here a Free Ride for Haliburton)….litigation when it finally hits the Federal Courts….Citizen Deviancy has arrived….

  9. This is being referred to as one of the meanest Supreme Court decisions ever. We don’t need another republican Supreme Court appointment.

  10. OK, so if I understand stare decisis at least as well as any Senator on the Judicial committee, this means either Congress will have to pass a law redefining prosecutorial misconduct or this is the law of the land forever.

    Since no pol is going to want to be accused of being soft on crime, tyeing the hands of law enforcement and letting criminals off this is it, isn’t it. It would be nice if the little 5 had given examples that they would consider misconduct because it is hard for my tiny brain to conceive of much worse.

  11. Blouise wrote:

    “Law and order in this country is definitely falling apart.”

    Yep.

  15. Happy to see that this is being addressed here. (Thank you.)

    In John Thompson’s words:

    http://www.nytimes.com/2011/04/10/opinion/10thompson.html?ref=opinion (for the full

    Op-Ed Contributor
    The Prosecution Rests, but I Can’t

    By JOHN THOMPSON
    April 9, 2011

    I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

    Because of that, prosecutors are free to do the same thing to someone else today.

    (…it continues and ends with the following)

    I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

    Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

    If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

    A crime was definitely committed in this case, but not by me.

    John Thompson is the director of Resurrection After Exoneration, a support group for exonerated inmates.

  16. How appropriate that Justice Thomas author this.

    I didn’t think it was possible for my opinion of this Robert’s Court to sink any lower. I was wrong. Law and order in this country is definitely falling apart.

  17. Mike A,

    WordPress has an option for a graphical editor to input your stories that has formatting buttons like a word processor if you don’t want to learn a bunch of HTML tags. I’d give you more specific directions on how to get there and enable it, but all my WordPress stuff is on a different disk partition than the one I’m currently on.

  18. Thanks, rafflaw. It was definitely a hatchet job. Now if I can just figure out how to do bold and italics in wordpress.

  19. Mike A,

    I echo raff’s statement.

    Robert’s apparently thinks the Constitution was written on Charmin.

Comments are closed.