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.
W=c:
You are not helping by enabling behavior. Kay needs help, big time. Anytime someone talks of suicide as the only alternative to what is going on, it must be taken seriously. Trite comments about the big bad lawyers is not going to do a thing for Kay except reinforce her delusions about possible success. She has been advised, repeatedly, to get psychiatric and/or psychological help. You would be of more assistrance to her if you also made such suggestions.
As for the courts, how about a brief lesson on where all this comes from. The debates of ancient Rome were held in the Forum. A forum has become, in modern parlance, a place to express opinions and ideas, and where a debate can take place. The word ‘Forensic’ comes from the Latin ‘forensis’ which means “of the forum.”
If you take Forensics in college, you will be signing up for debate classes. The adverserial system is designed specificially to tease out the truth, by allowing both direct and cross examination. The witness, under oath, is compelled to tell the truth. Do witnesses sometimes lie under oath? Hell yes, they do. Sometimes on national television in Congressional hearings. The very purpose of a cross examination is to challenge the witness and catch them in lies or misrepresentations, if such exist. To that end, the very purpose of a trial is to test the parameters of what the truth actually is.
Do the courts make mistakes? Yes they do. But can anyone come up with a better system in the short run? We are using a system that has been evolving for more than two thousand years. Will it get better with time? Yes it will, as diligent lawyers and experts continue to bring more and more science and attention to detail into the forum.
Your time and attention is appreciated.
Otteray Scribe 1, April 15, 2011 at 10:58 am
——————–
sur·ren·der/səˈrendər/
Noun: The action of surrendering.
Verb: Cease resistance to an enemy or opponent and submit to their authority.
thank you for the excellent song….would you submit to the authority of a system that forwarded a corruption and that refused to put things right?
“really not my thing….but….do you tinkle green too?”
Apparently it is your thing since you just started one and only when I eat asparagus.
W=c,
Like I give a damn what you think of me personally. Kay is victimizing herself. Her case is dead. She killed it by forum shopping and playing at being a lawyer You want to be a better nurse? Then maybe you should pull your head out of your ass and realize that fact and encourage her to get the help she really needs instead of cheer leading for an outcome that’s never going to happen.
“If you just want to get into a pissing match, that can be arranged.”~Buddha
——————-
really not my thing….but….do you tinkle green too? 😉
“The way I see it is you shot the first volley…you were charged, you wanted your day in court and the Prosecutor dismissed the claim… why because, I do not know…but the fact is it was dismissed…you should have gone about your merry business rather than seek revenge….the revenge you sought…you lost….it is the old adage….Do you have to make a Federal Case out of everything….”
——————————-
stating a truth= attack
going to court =revenge
didn’t go away=target
….my my my the seeds you sow….
no wonder you are so terrified of disarming….I’ll light a candle for the devastation you must always leave behind….
“You just don’t like the answers to the questions presented. The truth isn’t always what you want it to be. Grow up.”~Buddha
———————————-
No sir, I don’t like YOUR answer…as if only a lawyer could answer a question about truth or law or justice? Come down to earth where life is real sweetie, your annoyance is your enemy and allows you to victimize the Kays of the world….and thereby yourself as well.
Want to be a better lawyer? Listen to the truth you talk about….listen to the Kays.
and Kay dear….when you are dealing with thugs, threatening to kill yourself is nothing more than doing their own dirty work for them. Get some support from someone who is NOT connected to the legal system….they can’t clean up a mess they are afraid to even look at. People who say they are ‘annoyed’ and “you are nuts” and other off putting things are only saying…’too scared’, “I can’t handle this”, and “this is too big for me” and you are being cruel not to notice it. Don’t be so awfully mean to the lawyers.
And I’m sure you’ll find someone else to blame for your failures in 3 hours too, Kay.
I will check back in about 3 hours.
“It’s not your loss in court that is destroying your life, Kay.”
I was damaged by
1.) Articles and court orders on the Internet saying that I filed a frivolous lawsuit — which I didn’t because I had a cause of action and because my lawyer Bill Hibbard ratified it.
2) Articles on the Internet saying that I didn’t understand simple zoning — which affects me because my MIT degrees are in city planning.
3.) Articles on the Internet implying that I stalked my neighbor — which conflicts with her testimony under oath that I did not follow her around town and that I hadn’t called her in years and with the testimony of her employee that he worked at her house for 100 days and never saw me on their property or doing anything unusual.
4.) $400,000 in Economic losses associated with being forced to sell my property and move to escape from Jane and Kevin Bennett.
5.) $100,000 in bogus attorney fee judgments.
None of the above did I cause. All of that happened before I ever blogged even once and before I even attempted to file in a different court.
And the idea that I was wrong to complain about the fireworks is BS too. International safety standards require a 150 feet radius of unoccupied space when aerial fireworks are launched. Kevin Bennett launched them 75 feet from my property — from downhill towards my house over a dry bush covered field not accessible to fire trucks.
W=c,
Nope.
If you expect perfection from a judiciary system, then you will meet the same end as one who expects perfection from any other man-made system.
Disappointment.
Do injustice occur? Sometimes they do. That’s why there are appeals processes. Do some attorney’s milk clients? Why yes they do, but a great majority of them don’t. Most of them work diligently to make sure their clients get a fair hearing in court and win on the merits. Your reasoning is based on a composition fallacy. By the same reasoning, because some doctors are incompetent and greedy that all doctors are incompetent and greedy and ergo the cause of all illness.
There is a classic song by the late Waylon Jennings called “Southern Pride.” It is one of the songs from the great storytelling album, “White Mansions.” One of the characters in the album is ‘The Drifter,’ who sings about foolish pride keeping the civil war going. Here is Waylon singing in the voice of the character ‘The Drifter.’ I am posting this because of the great lessons told in the lyrics. Sometimes poets can teach us lessons we need to remember and do it in a way that is not easily forgotten.
Kay,
There you go playing chicken little and pollyanna in one sentence… I am all for one deciding when they should be able to define quality of life has ended and then making rationale decisions about how they wish to exist this world… but you are neither rational or has your quality of life been ruined by anyone but at your own hands… this is a hard lesson for people to swallow…on the other hand if you do believe in reincarnation and that in each life we have lessons to learn some good some bad….then guess what…you’ll come back in some form to learn some lesson such as this…
The way I see it is you shot the first volley…you were charged, you wanted your day in court and the Prosecutor dismissed the claim… why because, I do not know…but the fact is it was dismissed…you should have gone about your merry business rather than seek revenge….the revenge you sought…you lost….it is the old adage….Do you have to make a Federal Case out of everything…. if you had gone to Law School you would see the humor….You haven’t so you can’t….Google it up….it is kinda of an issue for you….
Think about the last definition….
http://encarta.msn.com/dictionary_1861690172/federal_case.html
….and I am fast becoming a believer that it is the courts who are the source and the cause of all crime, civil disobedience, theft (especially theft), and they are the probable handbook of mobs, shadow organizations, mafias and motorcycle gangs even the nice ones that bring teddy bears to kids with cancer in the pediatric ICU’s……
because apparently it is the agents of the courts who don’t do truth…they don’t protect people and their property who need it…they exploit them…for $$$…
now, did I get right… finally?
W=c,
If you just want to get into a pissing match, that can be arranged. I haven’t conflated a damn thing. You just don’t like the answers to the questions presented. The truth isn’t always what you want it to be. Grow up.
I’m not going to argue law with you because simply you do not know what you are talking about. That’s the bottom line. Arguing law with you is like arguing architecture to a fish – useless.
“So what you are saying is that the only option I to save my husband is suicide because I will never be able to get a hearing on the merits?”
No. What I’m saying is the only option you have to save anyone is seeking out psychiatric help. It’s not your loss in court that is destroying your life, Kay. It’s your obsession with it.
Seek out a reputable psychiatrist or therapist.
Today.
It will be a far better return on investment in terms of both time and money than the futile path you have set yourself upon.
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). ~OS
——————————–
Then perhaps it is not about truth….and the courts, (and others…who shall not be named but who are green and know who they are….) should stop conflating their purpose as such.
Again I say, if ADVERSARIAN principles are the ONLY principles practiced in a court by agents thereof, then to tout truth in that forum does nothing but to encourage and sanction lies…and that’s not nice.
So what you are saying is that the only option I to save my husband is suicide because I will never be able to get a hearing on the merits?
I didn’t destroy my original cause of action by incompetence. I needed the Hartman v. Moore Supreme Court decision to define my cause of action (First Amendment Retaliatory Criminal Prosecution) and it wasn’t made until four years after I filed. Then in 2007 the 10th Circuit ruled based on that in another case they called First Amendment Retaliation in a Non Employment Context.
My cause of action was NOT listed in the Law of Torts by Dan Dobbs nor in Prosser and Keaton. I was calling it First Amendment Retaliation by 2004 but the only cases I had to cite were employment cases. In the 2007 10th Circuit case they cited a very old prisoner Access to Courts case but I didn’t initially didn’t connect 42 USC 1985(2) to my case and in fact don’t think it applied until after Nottingham ordered that I should be imprisoned if I filed in another court “based on the same series of events”.
Kay, I think you missed the point made in that classic song. The key part is that, “You’ve got to know when to hold ‘em;
Know when to fold ‘em; Know when to walk away, and know when to run.”
Know when to walk away and cut your losses. There was another great storytelling country song by the late Marty Robbins some years back about foolish pride, which ended up getting the young man hung by the Sheriff. You cannot afford to go forward, based on what you have told us. You also said, in essence, that you want to salvage your reputation and that you feel you have to go forward to do that. That, Kay, is the foolish pride that Marty Robbins sings about in his song, “Cottonwood Tree.”
“A gambler gambles voluntarily with what they can afford to lose.”
This statement only applies to people who don’t have compulsion and/or impulse control disorders.
You gambled at playing being an attorney, Kay.
You gambled and you lost. You lost in such a way that any original cause of action you may have had is beyond salvage. Because despite what you think, you are not competent to represent yourself. That’s truly why no attorney in their right mind if going to represent you – your destruction by incompetence of any original cause of action. Sure, you’ll find ones willing to take money for consultation – which is what happened in 2006 – but that’s as far as it’s ever going to get.
You need to walk away. You obviously can’t walk away. That’s a compulsion by definition, Kay. And it will destroy you unless you get the proper mental health care.
Quit annoying us to feed your obsession.
Seek out a reputable psychiatrist or therapist.
Today.
It will be a far better return on investment in terms of both time and money.