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.
Gyges,
Nothing I’ve ever heard repeated as a maxim in law, but there is the old trope from statistics: Once is an accident, twice is a coincidence, three times is a pattern. My personal rule is that anything that happens more than three times absent extenuating circumstances can be portrayed as a pattern but the more incidents the better for any given case where pattern behavior is relevant.
Buddha,
Just curious, is there a rule of thumb about how many times something has to happen before it’s considered a pattern by the law?
Just what actions am I supposed to “be accountable for”?
Everything I filed in court was correct. I didn’t know and couldn’t use what the Supreme Court ruled until they filed it.
IF I was “forum shopping” that is not illegal. If it there would be only one possible forum under federal law, but there is not. The Supreme Court in Semteck v. Lockheed recognized that there can be more than one forum and found that there is no claims preclusion caused by switching forums. Rule 60(b)(3) in its plain wording and in the Congressional Notes explicitly recognizes more than one forum and rejects “comity”.
I am NOT going to file for bankruptcy either. My debts are less than the cost of getting a lawyer and a pro se bankruptcy is too dangerous, complicated and time consuming to undertake. Also, I could not under penalty of perjury claim that I was a customer of the law-firms nor could I claim that they had a valid judgment when they didn’t even appear in my action at all and one of them has never filed anything in any federal court and I have no copy of their bills. And I would never put a bankruptcy trustee in charge of my life.
lol
“I’ve got a prototype.”
Buddha,
I just spent five minutes looking for the “Jump to Conclusions Mat” scene from Office space. Let’s all just pretend I found it.
Kay, you revealed more of yourself in that last comment than you probably intended. At least to my trained eye. Do not try to sell me something that I am not buying. Get help. I cannot do anything for you beyond telling you to see a mental health professional.
Gyges,
You got it. Boing, boing, boing!
Blouise,
I’m not talking about victory in the sense you are. The face of victory changes endlessly. In a case where someone has no chance of winning a battle and is harming themselves in futile pursuit of said victory . . . what is the shape of victory? A Pyrrhic burnout or living to fight another day? Clearly I am advising that live to fight another day is the best strategy. Victory, no matter how the face of it changes, is a maximize/minimize proposition: maximize your positives and minimize your negatives. There is no positive from Kay’s futile pursuit. It ends in either a zero sum or a -1 in the terms of game theory. Her only option for a +1 outcome is to change the face of her victory.
And accountability is certainly part of my thinking. Initial injustice or not? Kay is accountable for the outcomes of her own actions just as those who may of wronged her should be. However, the chance to hold them accountable is now gone. She forum shopped, she got sanctioned. The sanction she earned for actions – the very same action an attorney would have gotten sanctioned for and likely disbarred on top of it – killed whatever cause of action was salvageable.
I’m not faulting W=c for being principled.
I’m faulting her for being unrealistic.
There is no win in the shape of a win Kay desires.
Time to minimize her losses.
Before they complete the job of eating her alive via obsession.
Buddha and AY,
So basically, Thomas decided “the State’s Right.” and made up a reason why?
If only there was a term for courts that have decided the verdict before they hear the case, something involving a marsupial perhaps.
Anonymously Yours
1, April 15, 2011 at 1:42 pm
Thats ok Blouise….You know me….I’ll take a cheap shot anytime I can get it….then again…I am learning not all of the cheap shots are worth the pain that can be inflicted upon me…. so what I think is no ones business but mine…
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Come on darlin’ … I gave you a perfectly good opening … “In good hands” -v- “Like a good neighbor” … you know I love ya like a brother!
I DID not say that I was going to commit suicide. I said that various people seemed to be trying to force me to do so and that it might help my husband.
I have NEVER taken pills or cut myself. I had a rope but I threw it out. I don’t have a gun and have never attempted to buy one.
Thats ok Blouise….You know me….I’ll take a cheap shot anytime I can get it….then again…I am learning not all of the cheap shots are worth the pain that can be inflicted upon me…. so what I think is no ones business but mine…
Anonymously Yours
1, April 15, 2011 at 1:16 pm
Geeze Blouise,
I am feeling dissed…. Here you go backing up others….but when I ask for you to do something as simply as back me up….sure….you are there just like state farm….
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I am not … I repeat … I am not going to go for the cheap “You’re In Good Hands With Allstate®” line … nope, not me
Buddha Is Laughing
1, April 15, 2011 at 1:18 pm
Blouise,
I too will give W=c style points for principles.
Unfortunately I have counterbalancing negative points for Pyrrhic application.
A stand on principle that leads to no good end is the very definition of Pyrrhic.
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Move away from Kay for a moment and you will see the stand Woosty’s taking more clearly. It is not victory she seeks … it is accountability.
Woosty’s still a Cat,
“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(s) are growing.”
That is the challenge you have presented to the legal profession and as such it is very much in keeping with the subject of Mike A’s article.
Gyges,
Basically what AY said: Thomas doesn’t know what he’s doing. More accurately, he doesn’t care about the needs of justice and exhibited a stunning failure of ethics. He refused to acknowledge a pattern of misconduct in the attorney’s under Connick’s supervision. Even Connick himself conceded there had been a Brady violation. And what Thomas (and Scalia) did was sift through the facts to produce a rationalization that this was one lone actor in an isolated incident when the facts and even Connick’s admission indicate otherwise.
In short, he made up a reason for the answer he wanted to give, not an answer based upon the evidence as he was bound to do under professional ethics.
Law by imperial fiat.
Blouise,
I too will give W=c style points for principles.
Unfortunately I have counterbalancing negative points for Pyrrhic application.
A stand on principle that leads to no good end is the very definition of Pyrrhic.
Thomas did not consider the evidence because he does not know what the hell he is doing….He is used to being the Atta Boy…. he is good for cases involving minorities… at least one can’t say he racist…. he screws over white people equally as well…
Buddha,
So basically Thomas refused to consider some of the evidence because…
What’s his reasoning? In reading Mike’s post the only answer I get is that it while there were system wide failures, they weren’t necessarily repetitive failures. Which would seem to me to be a big part of the nature of system wide.
Geeze Blouise,
I am feeling dissed…. Here you go backing up others….but when I ask for you to do something as simply as back me up….sure….you are there just like state farm….