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.
But in your sympathy for her suffering you have ignored the facts and her behavior in favor of encouraging her to seek the impossible, W=c.
Impossible is impossible.
No one is minimalizing Kay as a person. As a lawyer, you bet, because she doesn’t know what the Hell she is talking about. But as a person? If I were minimizing Kay’s value as a person? I wouldn’t encourage her to get help or I’d tell her to off herself. I’ve done neither. I’ve repeatedly told her to get the help she needs. No lawyer will ever get her the result she wants. But a doctor can help her move on with her life instead. Again, is it better to live with an unpleasant truth but live or to live with a beautiful lie that threatens your welfare, the welfare of those close to you and possibly your own life?
Many of us have said needs to get help. Her friends, people who actually care about her in a personal way, say she needs to get help. What is causing your resistance to that idea other than your sympathy? You hate injustice? Almost all of here hate injustice. But sometime they happen. Sometimes they happen in irrevocable ways. This is one of those instances.
Minimalizing her as a person is encouraging her to continue on a path that leads to certain disaster instead of heading to the lifeboat.
One course of action is futile to give Kay a better quality of life. The other course of action likely isn’t futile and likely helpful in providing Kay a better quality of life.
Choose one.
My advice is the less futility/better life option.
What’s yours, W=c?
W=c, yes you did minimize when you wrote, “that would not be my assessment OS. Kay is distraught and looking for resolution perhaps….but does not seem to be suicidal. Looks more like screaming for help, an ear.”
You said that was not your assessment (that she is thinking suicidally). You are saying that it is a cry for help. I will agree with you on that point, but take it to the next level when she says she has no other alternative but to commit suicide if she cannot go forward.
All the attorneys here and on Daily Kos have explained that going forward is no longer an option for her. The legal door to her case has been slammed by the Court. She was sanctioned. There is no place to appeal or re-file her case due to her own actions by forum shoppng. She is going nowhere with her pleadings in the legal arena. Case closed. That is not hard for most people to understand, but she insists she has options. Since she says her only other option is to kill herself, that is some serious stuff and I take is very seriously. You, apparently, do not.
Kay needs help. And BTW, I agree with BIL on the obsessive thinking. And if it makes you feel better, I have some wallpaper on my office wall that says I am fully qualified to make that statement.
Thank you Blouise, I appreciate the positive words.
“I’m also pretty sure that at some point or another Kay has tried to enlist various people here to work her case for free. As a member (of a) profession that gets asked to work for free ALL THE TIME, that’s a BIG pet peeve (Blouise’ll back me up on this one).” (Gyges)
Yes, indeed. That has always been my problem with Kay’s posts. I have long suspected that she is attempting to take advantage of the generosity of the lawyers who post here. And almost every one of them have, at one time or another, offered her extremely good advice … free of charge. Yet she continues to deny that advice or ignore it which leads me to believe she seeks more than just advice. If that is the case, I disapprove.
However Wootsy’s posts are also on target and I don’t fault her for the points she makes. Wootsy is standing on very good principles and defending that stance admirably. She may not be a lawyer but she seems to understand that everyone is entitled to a spirited defense. I also admire her courage in taking on the opposing viewpoint.
No, Brian, they don’t. The SCOTUS is simply the final arbiter of what existing law says or means in light of the Constitution. Their rulings can and have been overruled by Congressional action taken in the name of justice. The chief example being the overruling of the Dred Scott v. Sanford decision by the actions of Congress in adopting the 14th Amendment. Justice is a somewhat nebulous socially defined term that revolves around equity in outcomes. It’s not impossible to define, just that any definition you have is going to be fuzzy around the edges according to the individual situations of the case and the feelings of society in general of what constitutes a just and equitable outcome.
Anytime, ANYTIME, a person expresses suicidal ideation you do not blow them off as attention-seeking. Take it as seriously as a heart attack. If she says she is suicidal, I am willing to believe her until proven otherwise. The absolute worst thing you can do is ignore the statemtn and minimize it.~OS
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I haven’t minimized anything…including Kay
“It doesn’t take a professional psychiatrist to recognize obsession.
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yes, it does….legally.”
No. It doesn’t. The law requires a professional psychiatrist to give a valid diagnosis for legal and insurance related reasons. I used the word “recognize”. Or do you think that only a doctor can observe symptoms that something is wrong? As OS said, the suicidal language is a giant red flag that something is wrong. I’m not a doctor, but I can tell someone’s leg is broken by the bone sticking out of it. That doesn’t mean I’ll catch that the femoral artery is severed or that there is nerve damage or that I’m able to treat it. It simply means I recognize that something is wrong and the person with the broken leg needs help. Which I do. And which is why I told Kay to seek the help of health care professionals. That you do not recognize a problem when you see it is your perceptional error.
What injustice done by the Supreme Court?
Do not Supreme Court decisions define justice?
Was the Court not following precedent?
Does not using injustice as precedent overrule precedent injustice?
I need to avoid posting this, but mistakes happen?
Gyges,
Thomas essentially ignored the evidence and the proper function legal precept of respondeat superior. While it is true an isolated incident isn’t a Brady violation, in this case there was indeed evidence of chronic and widespread prosecutorial abuses from Connick’s office that on their face show, at best, deliberate indifference in supervising his staff and, at worst (and from what I know, I’d tend toward the worst case scenario), shows complicity in their failures to uphold their prosecutorial duties. A sane court would have bypassed respondeat superior in holding Connick personally liable for the wrong doing of his staff. We are unfortunate enough to not have a sane SCOTUS. And by sane, I mean “not bought off and all for corruption”. As the Prof. states, this is a case of of prosecutorial impunity over justice. It’s also another sterling example of why Thomas isn’t fit for The People’s Court much less SCOTUS.
W=c sez: “Kay is distraught and looking for resolution perhaps….but does not seem to be suicidal.”
W=c adds that, “I am not a psychologist.”
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You are correct on the second point, and badly mistaken on the first. First of all, unlike you, I am a forensic psychologist and have been doing mental health work for a half century. Anytime, ANYTIME, a person expresses suicidal ideation you do not blow them off as attention-seeking. Take it as seriously as a heart attack. If she says she is suicidal, I am willing to believe her until proven otherwise. The absolute worst thing you can do is ignore the statemtn and minimize it.
I have done a number of what are called ‘psychological autopsies’ for both State and Federal District Courts. That is where we went back and tried to reconstruct the deceased person’s state of mind before taking their own life. The saddest lesson I have learned while doing psychological autopsies is there were ample warning signs that friends and family chose to ignore. If she says she is suicidal, then as far as I am concerned, she is suicidal until she can convince me she is not.
Kay needs mental health assistance. Now. Encourage her to get help if you want to do something positive for her.
It doesn’t take a professional psychiatrist to recognize obsession.
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yes, it does….legally.
bored now
Buddha,
Tell me more about this injustice done by the Supreme court. It seems to me there was a discussion about it at some point that got derailed just after leaving the station.
She has no more legal recourse, W=c. The final sanction guarantees that. Any appeal she might have had is forbidden as a result of her forum shopping. Any other option she has is either the of the illegal self-help variety or in seeking medical help. It doesn’t take a professional psychiatrist to recognize obsession.
Sometimes the paint matches the drapes.
And there is a difference between systemic injustices and shooting one’s self in the foot.
Again, whether you believe it or not, Kay’s wound is self-inflicted. She has no legal recourse because of her own actions causing a judge to sanction her from further litigation. Is it a harsh sanction? Why yes it is. It is also merited given the nature of her contempt of court.
Is the Connick case a systemic injustice? Why yes it is. SCOTUS under their current composition once again failed spectacularly to uphold justice.
Is Kay’s case a systemic injustice? No. Her own actions brought the full weight of the court down upon her.
Neither Kay nor Thompson asked to be in the situation in which they found themselves. The difference is Thompson properly went through the process and was still denied justice. Kay might as well have expressed her displeasure at losing by going and peeing on the judge’s desk. She violated proper procedure. If she was denied justice, it is her own doing.
I don’t know about you? But I’m not real sympathetic to self-inflicted wounds. Act stupidly and you often get bad results.
She needs to see a psychiatrist and get some counseling so she can drop this and move on with her life.
Nothing she can do legally – NOTHING – no amount of bitching or arguing or begging or anger or whatever is going to get her the result she desires.
You are simply encouraging her to tilt at windmills.
RE: Otteray Scribe, April 15, 2011 at 11:36 am
“But can anyone come up with a better system in the short run?”
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Yes.
I already live it.
Someone was murdered for coming up with it and telling, long ago?
Telling it in words has here been shown to still be impossible.
Words will come in their proper time?
When the world is ready?
What if “the short run” is more than a trillion years?
¿Que será, será?
Please do not reply to this silly, ignorant, human stupidity.
“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.” ~OS
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that would not be my assessment OS. Kay is distraught and looking for resolution perhaps….but does not seem to be suicidal. Looks more like screaming for help, an ear. She may be looking in the wrong place but she is not the problem here. It is the deafness of an entire system that refuses to even acknowledge nevermind correct it’s mistakes. That is why the ranks of Kay are growing. It is not suicidal ideation, it is righteous pissed offedness.
I don’t believe in slamming doors in peoples faces.
I’m not a psychologist and this is a blog.
If we are going to get all right and wrongy about things here…to appeal to the conscience of lawyers when they have caused a great screaming wrong and then denied it….well, that would be a mistake and a waste of time….but so would forgetting and just moving on. So that some other poor sucker could be victimized. What are the other avenues that would be most effective for Kay? If the law cannot behave legally or justly, I know she has other alternatives….aside from painting her as crazy…what would those avenues be?
Buddha and Mike,
I guess that does sort of imply that he wasn’t. My apologies (and that’s my last post here unless someone magically changes the subject back to proprietorial impunity).
“Heck, Mike A. has gotten fed up with her. Just think about that. When was the last time you read anything he wrote that was anything but reasoned, calm, and respectful?”
And even when fed up, Mike A was reasoned, calm, and respectful.
Clearly fed up, but reasoned, calm, and respectful.
Wootsy,
Without a real hound in this hunt (although admittedly, I do get sick of having to scroll past Kay’s posts), may I just pose a hypothetical.
There are web-sites dedicated brewing, many of which have professional brewers on them. Let’s say somebody goes to several of them and keeps asking “why does my beer keep tasting sour?” and after several exchanges it comes out that they don’t sanitize their fermenter.
Now several people who know what they’re doing keep explaining “you need to buy some star-san. Your home-made soap isn’t good enough,” and the person keeps ignoring that advice, and explaining why their soap is good enough for washing hands, and that they feel that self reliance is so important that they refuse to buy a commercial product.
Wouldn’t the community of brewers have every right to get eventually fed up? Especially if the person in question feels the need to inject their problem into every third or fourth topic? Heck, I know places where you’d get banned for that sort of behavior.
That’s a generous analogy, this isn’t a message board, it’s a private blog run by someone who is generous enough to allow us our own private discussions. I’m also pretty sure that at some point or another Kay has tried to enlist various people here to work her case for free. As a member profession that gets asked to work for free ALL THE TIME, that’s a BIG pet peeve (Blouise’ll back me up on this one). If somebody offers you their services for free, that’s o.k., but otherwise you might as well just be going up to them and saying “hey, give me $500” (or however much they’d charge for that particular service).
This isn’t a matter of being dismissed out of hand, I was here when Kay first showed up, SEVERAL of the lawyers offered polite and sympathetic advice. The advice hasn’t changed, just the tone in which it’s offered. Heck, Mike A. has gotten fed up with her. Just think about that. When was the last time you read anything he wrote that was anything but reasoned, calm, and respectful?
W=c,
Yes.
Lawyer bad. Everyone else good.
That’s some reasoning there, Caveman Sancho Panza.
Composition fallacy much?
“Not 1 person on this blog has voiced anything but annoyance towards Kay”
Did it occur to you that there could be valid reasons for this annoyance? Like her constant threadjacking and talking nonsense when she addresses points of law? Annoyances cause annoyance because they are . . . annoying.
And you should learn to differentiate between the words “amazing persistence” and “psychotic persistence”.
The truth will make you angry.
Get as mad as you like.
The outcome both of you desire will still never happen.
http://www.youtube.com/watch?v=FvGRsz0deRs&feature=related
[youtube http://www.youtube.com/watch?v=FvGRsz0deRs&w=480&h=390%5D
lawyers are just too comfortable, too well fed, too willing to surrender to the things that destroy what they are sworn to uphold, too willing to do what they would never accept being done to them,…to allow this country to be anything it has the potential to be…
I have often wondered why 99% of our politicians and leaders are lawyers. Not 1 person on this blog has voiced anything but annoyance towards Kay…who has shown amazing persistance in bringing facts and real offenses to a place of supposed discussion and learning about our justice system in what is probably her last desperate attempt at reconciliation with the law.
…what the FUCK IS WRONG WITH YOU PEOPLE!
well, it may be lost on her, but I got the lesson.