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.
I did click on your link to the gambler’s song.
A gambler gambles voluntarily with what they can afford to lose. My involvement was involuntary and I can’t afford to lose my reputation, which is what I lost as shown by how you react to me.
As I stated above, I hired three lawyers and I listened to all of them. The only advice I didn’t take was to sell my home at the time. I waited until I subdivided the property and fixed it up and then I got a couple hundred thousand more than I would have. My real estate agent told me that she couldn’t show my home with us living there and that the property value was depressed because no one wanted to live next to Kevin Bennett.
Since then I have never been able to hire a lawyer. Even if I have cash in my hand, they will not discuss my case with me.
My husband did hire a lawyer in 2006 and paid him $3,000. I talked to him too. He said that he would have taken my case in 2002 if I called him then but that bringing witnesses from Steamboat to Denver would have been expensive. He said that he was afraid to represent my husband because he was afraid of retaliation. He advised my husband to divorce me because he said they would ruin him to get me.
Kay, I never said you were banned or that anything untoward happened at DKos. You did get the same reaction from Seneca Doane and KentuckyKat that you have gotten here. Both those guys are practicing attorneys and had the same reaction as BIL, AY and others. Since you have been saying the same things for at least three, going on four years, and getting the same answers from a number of different people, maybe they are right. Hire a lawyer and LISTEN to the lawyer. That this has taken a toll on your mental health is obvious, so please get some help in that area as well.
You really need to heed the Gambler’s philosophical advice.
Simply the way you talk and deal with people, Kay.
You are multiple lawsuits (and probably contempt charges) waiting to happen.
Seek professional mental health services.
For what crime?
You’re lucky you’re still not in jail.
My big problem was the permanent restraining order. If I had not sold my house to the Bennetts’ lawyer at below value, I would have been arrested sooner or later because she was actively following me around asking the police to arrest me for going to the store. Also, they started to bait my 15 year old son and my husband. I found out that in Colorado by statute unless it is a domestic relationship or employment they are required to use full procedure etc. to get a restraining order. They got one on the basis that I had a domestic relationship with my neighbor. They used domestic relationship forms.
Then on the transcript, after I crossed for 3 hours, the judge said that all he was doing was acting as if the D.A. had applied for a restraining order, which she didn’t do. That was the day after they had scheduled and then cancelled an arraignment, which I didn’t know. So the Judge must have lied when he said he didn’t know. On the transcript the judge said that if the criminal charge was dismissed or I was found not guilty the restraining order would end but when I filed to have it end, based on what he said, he refused to do so and with no hearing he attached my deed.
When I went back later the judge claimed I hadn’t paid the fee he had ordered me to pay so therefore he wouldn’t rule. I got a receipt from the clerk showing that when my house sold they got part of the proceeds and filed it in court. The judge ordered me to pay more money because he said that only the lawyer could file the receipt from the clerk. The same lawyer who had signed the receipt and never filed it.
My other son said that when he was 8 my neighbor threatened to kill him.
Now what should I have done?
An aside O.S. — I didn’t have any problems on Daily Kos.
Then I hired Sandra Gardener to defend me against the charge that I harassed Jane Bennett by standing on the street accusing her of violating the zoning. She would not help me with the zoning issues.
The DA offered to let me plead to disturbing the peace and I refused to do so. Gardner wanted me to plea. Judge Garrecht had already made public statements that he thought I would be convicted and get jail time and he would have been my judge.
So then I hired Bill Hibbard, who was older and more experienced, and planned for trial. The D.A. dropped the charges, out of court which is prohibited, less than a week before the trial.
Neither Hibbard nor Gardner told me that there is supposed to be a written statement of probable cause and an arraignment. I didn’t know that because at that time the rules of criminal procedure were not on the Internet and there was no local law library and I had never been criminally charged before AND I didn’t know you had to second guess your lawyer. Hibbard did not tell me that a prosecutor has to have a hearing in open court to dismiss a charge. The prosecutor told the press that Jane Bennnett was my victim but a trial was too expensive and that is what they printed in the paper with an interview with Jane Bennett saying that the police would protect her from me. That is when she really stepped up the following me around trying to get me arrested and that is when we found the bullet hole through our window.
Hibbard would not help me with the zoning issues. I was in his office when the city attorney Anthony Lettunich called and screamed at him about me. Hibbard told me that he was afraid of retaliation against his law firm. I put that in my federal complaint which Hibbard read and he didn’t object to that.
I did hire a lawyer. I hired three lawyers.
Steamboat was only 10,000 and didn’t have that many lawyers. There were only four law firms that did land use law and they all worked for either the city or my neighbor.
It was a four hour drive from Denver. A woman I knew there, who had inherited millions, was paying 1200 for time and transportation to bring in a lawyer from Denver.
I was advised that I would never get a lawyer in Steamboat to go against the city council president. My own family lawyer said he would lose the water and sewer account if he represented us.
About 10 or 15 people had filed lawsuits against the city. One of them was a chiropractor named David Christe who I knew. He spent over $100,000 trying to sue and didn’t get past the motion to dismiss stage. I hired his lawyer Ed Serr from Boulder thinking that he was already familiar with the City. I paid him $300 to tell me file in that court, the court the judge said was the wrong court. I think it was the right court and that the judge was blackmailed because Bennett and others knew his girlfriend was involved with cocaine. The intervention right of a neighbor to enforce the zoning is well established.
After Judge Thompson ruled that adjoining neighbors had no right to intervene to enforce the zoning, Ed Serr called me and said that my only option was to sell my house and move. He said the city government was really crooked and that Bennett was doing a taking in steps. He said appeal was hopeless because they wouldn’t order him to tear down after the bed and breakfast was built.
I asked my husband and he said that he didn’t want to move because he liked Steamboat, the skiing his home town etc., and he was busy writing a book and didn’t want the distraction. So I decided to report to the public that Bennett was violating the zoning.
When I saw Jane Bennett, who I had not talked to in a year, I decided I should discuss the zoning with her, so that she couldn’t claim that she didn’t know the extra buildings violated the zoning. That is why I stood on the street and “yelled” about the zoning — because she was 30 feet away I couldn’t whisper.
Jane Bennett applied for the restraining order on Thursday before the three day weekend. She got the preliminary from Judge Joel Thompson, the same judge with the girlfriend with the cocaine arrest problems. So I only had three days before the hearing. I tried to get a lawyer for the hearing and couldn’t find one. I told the judge that I tried to get a lawyer and he did not offer me an extention. I did on my own subpoena the two police and I did a pretty good job of cross examining the witnesses. The lawyer I later hired Sandra Gardner who is now a judge said that they could not expand the criminal charges because I did such a good job with the cross — the first time I had ever done one.
Brian,
Under the circumstances…that sir is probably a good ideal…
I thought of a comment some might deem useful; I dare not post it.
Good morning good people…
And to reiterate: Just because you desire an answer does not mean you will get the answer you desire.
W=c,
What OS said.
Woosty, about the quotation you criticize: “Never ask a question you don’t already know the answer to.”
That is the first thing, the middle thing and the last thing pounded into the heads of aspiring lawyers in law school. A lawyer who asks a question of a witness without knowing what the witness is going to say, is asking for his ass to be handed to him (or her).
I have worked in the legal arena for about forty years, and I during that time have become pretty good at verbal ju jitsu as a witness. I have handed more than one lawyer their ass because of the way I phrased a reply to a question, forcing the lawyer to ask a follow-up to which they did not know the answer. So, sorry, Woosty, it is not a trite comment, it is good advice when in an adversarial setting.
Kenny Rogers: The Gambler
There is a lesson in there somewhere.
Question:
*************************************
Answer: Either quit and cut my losses or hire a lawyer.
OS Yes and Turley picked up on one and wrote an article about it which is what brought me to this blog. It was called Judge Nottingham’s victim.
I don’t think I am being hostile. My perception is that I am actually pretty patient considering the public whiplashing I have been getting for 10 years.
The magistrate’s R & R is on PACER. Case 1:05-cv-01283-RMU Document 27-3 Filed 09/08/2005 Page 1 of 26
see Case 1:05-cv-01283-RMU Document 27-3 Filed 09/08/2005 Page 16 of 26
“prosecutors have absolute immunity”
I would be glad to provide you w documents including
letter from d.a. saying no statement of probable cause
registry of action showing no arraignment
press conference after dismissing charge criminal summons and complaint signed only by my neighbor
police report showing I complained of zoning violations
photos and building permits showing buildings not on property tax rolls police report showing neighbors wife insisted on initiating criminal prosecution
letter from my old lawyer encouraging me in my federal claims.
I am working on a new complaint now and this exchange is convincing me to attach these as exhibits.
I am not saying that my writing is perfect or that I know everything BUT I was born in 1954 and this is the only legal problem I have had in my entire life. I am still married to my first husband who I married in 1982.
I’m a victim of a conspiracy to damage reputation that started in Steamboat.
The magistrate’s report says that I should be punished for saying my neighbor might be a drug dealer. Look on “Explore Steamboat, Candidates divided on financing issue” and you will see “He said he was convicted of conspiracy to sell hash and that he pleaded guilty”. So I don’t know if he was still dealing when we lived next door but I heard the rumors from many people. All I said in my complaint was that there were rumors he was a dealer.
There are various inaccuracies in the Steamboat Pilot reporting and they disabled the comment function
Look at “Lawsuit against officials dismissed” 3/23/04 It says I was ordered to pay all attorney fees. Do you see any reason why listed?
Look at “Sieverding responds to recommendations” 11/3/2003 “Sieverding has filed numerous motions for summary judgment ….Schlatter issued a new order Friday recommending that these motions be stricken from the case because they do not conform to the rules for filing an objection to Schlatter’s recommendation.” Have you ever heard of a magistrate striking motions for summary judgment because they aren’t objections?
“Look at this County records show that Sieverding sold the property to Bernard M. Krisner, LTD for $175,00 in October of 2001 and it was then resold to the Footes in April for $235,000.” I had no choice but to sell it to Krisner, the father of one city attorney, because Bennett threatened to shoot the buyer who was willing to pay more. Then he sold it to another city attorney.
Look at this “case against council president dismissed”
7/27/2000 Essentially, the Sieverdings claim that the Bennetts new unattached garage contains more auxiliary space beyond that required for automobiles, and more than what is allowed for accessory structures under city code. In the case of the log shed, it is an acknowledged “nonconforming preexisting structure.” The Bennetts are converting it into an accessory apartment. Sieverding is claiming the alterations go beyond what is allowed by the code.” Then if you care go look at the Routt County property tax rolls for Kevin Bennett 701 Princeton Ave and you will see that those buildings aren’t there.
That was Judge Joel Thompson:
A Drug Enforcement Administration agent said Friday he determined after about two months of surveillance that 14th Judicial District Judge Joel S. Thompson was not involved with illegal drugs.
DEA Agent Donald Sperry testified he investigated Thompson between April and May because of the judge’s live-in girlfriend, 36-year-old Billie Jo Vreeman. Vreeman was arrested May 10 in connection with a federal drug sting.
“Vreeman was associated with Thompson, so I wanted to make an inquiry to find out if Thompson was involved with drugs,” Sperry said.
Vreeman faces federal drug charges for introducing Sperry to a cocaine dealer, Sperry alleges.
Look at this “Woman in harassment case gets trial”
“Witnesses said Sieverding allegedly stood in the street in front of the Bennett home and “screamed at the top of her lungs” that the Bennetts were violating her constitutional rights and breaking the law.
Sieverding, who acted as her own attorney at the September hearing, called two Steamboat Springs officers to the stand who testified they had not seen Sieverding act in a violent or threatening manner.”
Speaking of prosecutorial misconduct, does that sound like a crime to you?
Restraining order issued against Sieverding
“Judge worried that dispute between City Council president’s family and neighbor could escalate to violence” The judge didn’t only order me not to contact Jane Bennett. He ordered that if I was within 30 feet of her I would be imprisoned because
“when witnesses said Sieverding stood in the street in front of the Bennett home and screamed “at the top of her lungs” that the Bennetts were violating her constitutional rights and breaking the law.” What law would authorize that?
“She contends that the size of an addition being built above a freestanding, two-car garage violates the city development code. She also alleges code violations related to the Bennetts’ conversion of an existing log shed into guest quarters.” again are those buildings on the property tax rolls?
Sieverding called Steamboat police officers Richard Brown and Kirby Blackman to testify about their visits to her neighborhood to respond to complaints. In response to direct questions from Sieverding, both officers said they had not observed her displaying physical aggression toward her neighbors.
“Did you ever see me act in a violent or threatening manor?” Sieverding asked Brown.
“No,” he replied.
“Have you ever observed me behaving threateningly? Did I ever act in any way that seemed irrational?” Sieverding asked Blackman.
“Not at the times when I’ve been called,” Blackman responded.
Public comment 3_19_2001 Steamboat City Council Minutes
Kay Severding – I don’t understand the difference between nightly rental and B&B. Seems to me with a B&B you have a resident owner and two bedrooms, a nightly rental you have no resident owner and 4 bedrooms, therefore, a nightly rental has more impact and should be regulated more. There is significant change in Article 4 which would change the character of neighborhoods. It would allow people to build and rent detached units only 10 ft from neighbor’s property. Currently these units are either illegal or very old. Currently allowed detached accessory space is less than 1/3 the size of what would be allowed under the proposed revisions. Currently apartments for B&B units must be attached to existing dwelling and every building that has a sewer must have a separate sewer. Under the new proposed code the owner of a 2500 sq ft house could build a cottage 714 ft next to neighbors and use it for business, nightly rental, etc. We have a 4200 sq ft house allowing us to add two 630 ft cottages, 3 420 ft cottages or a 5 car detached garage. This kind of building will increase density of the neighborhoods. We used one bedroom in our residence to room a babysitter. We worried about them being so close. A live in situation is more self monitoring, they impact you not your neighbors. In a detached unit they impact neighbors more. I recommend that the accessory unit provisions be kept as they are now. I feel the reason the City has tried to slip in an expansion of accessory space is that the City Council President Kevin Bennett has built a 2,090 foot building that he has tried to pass off as a a two car garage plus office and in addition expanded an old shed 5 feet from the property line and not registered continuously, added a bathroom and kitchen to that building, expanded the interior space in violation to the City code in the purpose of adding an accessory apartment.
Does that sound so totally looney? I bet that not one person on this blog would be cool with their neighbor just adding extra buildings — one was 10 feet from my property and one was 5 feet from the property line.
One does not have to go to jail for 17 years to be damaged by malicious injunction or malicious prosecution.
Since there was a bullet hole through our window, we felt unsafe and moved leaving the property vacant. Later we got an email saying a Bennett threatened to shoot a buyer. We figured our out of pocket property losses, moving expenses etc. were $400,000 — a conservative estimate. In addition to that he made our live hell for years and then he trashed me on the Internet.
I had a claim of First Amendment Retaliation and I was entitled to pursue it in Federal Court. But instead of getting a jury trial or settlement I was fined $100 K, labeled a vexatious litigant, and thrown in jail. Does that sound like the way a section 1983 lawsuit is supposed to go?
Does it sound like I was lying?
Does it sound like I had an easy way out?
This was my judge
WSJ Law blog: Federal Judge Edward Nottingham Resigns Amid Misconduct Allegations 20/21/2008
This just in, from the Rockies: Federal Judge Edward Nottingham, who oversaw the insider trading trial of former Qwest CEO Joseph Nacchio, has resigned, according to the 10th Circuit U.S. Court of Appeals.
His resignation comes amid an investigation of complaints of judicial misconduct on the part of Nottingham (pictured), according to a statement from the appeals court. The complaints were lodged in August 2007, the court said, and since then “additional allegations developed and subsequent misconduct complaints were filed.” The court’s committees “conducted a thorough and extensive investigation, interviewed many witnesses, considered voluminous documentation, and conducted two hearings,” according to the statement.
Yes it is true that I have blogged about this for 3 years. But I lost $400,000 in cash, had my life totally disrupted, got saddled with a baseless $100,0000 judgment, had my reputation destroyed, and was kidnapped by the USMS. All I am trying to do is make something positive out of it.
What would you have done that would have worked out so well based on publicly available knowledge since you all think I am so incompetent?
“Never ask a question you don’t already know the answer to.”
—————————————————
What a cheap and assinine statement. Who benefits from not asking any questions? A question you already know the answer to is not a question….it is a trick…and a cheap 1 at that.
Your ‘argument’ would have Marcus Aurelius reeling in his grave and livid that you would equate his statement to the manner of so called ‘truth’ you seem to ascribe to.
“The truth is the truth.”….
yes….and it is either something to be sought, protected and upheld or it is a mere plaything for those who are not comfortable living by it unless they can manipulate it somehow.
And shutting people up because they have a piece of truth that is threatening to the status quo is just another form of oppressive facism.
OS, Mike et al….
If you haven’t noticed Kay becomes very hostile to people that do not see the way that she sees… I did not say disagree because then she will play victim and plays it well…. Something has to happen…a lot of time when ownership of an issue is recognized then one can do something about it…. she refuses to recognize that she is the problem…therefore she cannot take ownership of the issue… I may be wrong but the best way to handle this situation is to isolate her by silence…not to be mean but to hopefully get her to understand that this is not the correct forum for her to address her grievance and expect redress…. Thank you….