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.
OS,
Unfortunately the provision of community legal services is not uniform across the states. I think it could be, but the enabling legislation would have to be very very carefully worded to protect the client’s right to a zealous defense. If that one wrinkle can be ironed out? You’re right. The question answers itself. Besides, it has been my personal experience that Martindale ratings are more than a tad . . . overrated.
BIL sez: “I’m practically certain you could not have a government paid plaintiff’s bar without the fundamental duty to the client being compromised.”
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We already have a model for that. It is called community legal services. Law for the poor and indigent.
Which would the average plaintiff rather have? Or defendant either for that matter. Given a choice, which would it be: A salaried attorney assigned to your case, or a lawyer with an AV rating from Martindale?
I think that question answers itself.
Let me change that . . . “I’m practically certain you could not have a government paid plaintiff’s bar without the fundamental duty to the client being compromised.”
W=c,
I will not disagree with that. Ambulance chasing schmucks and attorneys that milk their clients are a huge part of the reason I walked away from the profession. The profession – including judges from magistrates t0 SCOTUS Justices – needs better oversight.
As to fees? It is true that most litigation of any complexity is simply expensive. On a complex case, an attorney charging say $500/hr. may not be clearing nearly all of that by the time costs not passable directly to clients are taken into account. That being said? I think both doctors and lawyers are overpaid as professions in general. If there was a way to assure no conflict of interests would appear for defendants/plaintiffs? I would be all for both professions being socialized just like the medical profession in Great Britain. Doctors there make a good living by any standard, but it’s not the insane opulence that the American Church of Greed Is God encourages. That’s why I loathe the greedy. Greedy people screw up everything for everybody and in their absence, we could and would have a much better world and quality of life for everybody. Unfortunately because of the way the adversarial process works, I’m not sure you could have a government paid plaintiff’s bar without the fundamental duty to the client being compromised.
“So the bar is addressing the issue of pro se litigation in a constructive way – trying to find a middle path that will improve the quality of pro se litigant’s pleadings and help with avoiding the kinds of formal errors pro se litigants make on the paperwork end of the transactions.”~Buddha
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speaking only from my own experience, I hope they are also looking at better avenues of oversight so that when people hire attorneys they have more to go on than the inflated self-aggrandizing marketing drecht that gets put out there by those profit chasing attorneys.
plus…pro se shmo say; I think most people would just like to have a professional pool of professional people who know and do thier job swiftly, well and decently. $$$$$ is waaaaaaaaay out of line for what most people receive……
Kay,
“No, I don’t claim to be an expert on law.”
Except that you do every time actual experts say you’re wrong and then you proceed to argue with them about their area of expertise. That and you claimed you had the right to give legal advice to third parties beyond “hire an attorney” when you don’t.
You also most certainly did ask what I thought was wrong with you and I gave you an honest answer: I think you’re nuts. If you don’t like that layman’s answer, then you shouldn’t have asked the question, fruit loop.
And I’m not going to argue law with you because when it comes to the law? I think you’re an idiot.
I hope that was clear enough for you to comprehend, Ms. 1%.
________
W=c,
Just like medicine, if you’re going into law for the money? You’re going into it for the wrong reason. The skeeviest most untrustworthy attorney’s I know are the ones who think dollars first and justice second. The same goes with doctors – the worst and most likely to malpractice doctor’s I know are the ones who put profit over patient welfare.
As far as shooting themselves in the foot? Economics has more to do with the increase in pro se litigation than anything else. The Report on the Survey of Judges on the Impact of the Economic Downturn on Representation in the Courts was released July 12, 2010. Note the title. It showed an increase of pro se litigation which has been steadily trending upward since 2000 with 60% of the judges responding to the survey said fewer parties were represented by lawyers in civil cases that came before them during 2009. 62% of the responding judges said the outcomes were worse for pro se litigants than for parties represented by lawyers in areas like domestic relations, foreclosures, other housing issues and consumer disputes. Moreover, 90% of the judges said increased pro se litigation has had a negative effect on the courts. Pro se litigants who don’t know what they are doing waste a lot of time and resources.
In response to this trend, the ABA has been drafting guidelines for attorneys to provide what is known as limited scope legal assistance – that is guidelines that allow attorneys to provide assistance such as drafting documents to ensure their compliance with the legal standards and give them advice specific to their factual situations without going so far as becoming the litigants attorney of record. Even then, a tool is as only as good as your ability to use it. As a professional, if you give advice and a client fails to use it properly or use it at all, the fault for any bad outcome rests solely with the client. Allowing attorneys to ghostwrite for pro se litigants is not an assurance they will win a case either as there is more to the job than just the paperwork. Handling a courtroom is an entirely different skill set. All this does is create a greater chance that a pro se litigants case will be heard on the merits because their filings are formally correct.
Barry Temkin, who chairs the bar’s ethics committee, has said, “There’s a need to provide more legal services to the indigent and the working class; and for people who couldn’t otherwise afford the services of a lawyer, the client can pay for the writing but otherwise wants to represent herself.”
So the bar is addressing the issue of pro se litigation in a constructive way – trying to find a middle path that will improve the quality of pro se litigant’s pleadings and help with avoiding the kinds of formal errors pro se litigants make on the paperwork end of the transactions.
This doesn’t mean that being a pro se litigant is in the litigant’s best interests.
Where the government itself becomes the source of danger to an individual’s rights, in the absence of some effective mode of redress, the person would be defenseless in the face of official lawlessness. The section 1983 remedy serves to supplement available state remedies. Monroe v. Pape, supra, n. 8. Because the wrongdoer acts with special authority under color of his governmental office or employment, the danger of his misuse of power is greater for those subject to it than would be the case if the wrongdoer were acting merely as an individual. His potential liability for violation of another’s federal rights serves to restrain illegal behavior and to encourage good faith performance of official duties.
A complaint under ß 1985(3) must allege sufficient facts to show:’that the defendants did (1) ‘conspire or go in disguise on the highway or on the premises of another’ (2) ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ It must then assert that one or more of the conspirators (3) did, or caused to be done, ‘any act in furtherance of the object of [the] conspiracy,’ whereby another was (4a) ‘injured in his person of [sic] property’ or (4b) ‘deprived of having and exercising any right or privilege of a citizen of the United States.'” Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 372, 99 S. Ct. 2345, 2349, 60 L.ed.2d 957 (1979), quoting Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S. Ct. 1790, 1798-99, 29 L. Ed. 2d 338 (1971).
The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized. ..
Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under section 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,” United States v. Price, 383 U.S. 787, 794 (1966)
The Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson was once quoted as saying that the big risk was not that people would use the courts but that they wouldn’t use the courts. Courts are supposed to be safe. As long as you tell the truth you are supposed to be safe in court.
My dispute with my former neighbor the city council president easily could have ended up with someone getting killed, probably someone in my family. I saw him many times carrying a gun around and there was a bullet hole through my window. I got an email about how someone was looking at then the only vacant lot in central Steamboat Springs for sale, meeting the description of my lot, and someone named Bennett threatened to shoot his kids if he bought the lot and his kids, who were all under 5, set a foot on his property. One of my kids said Bennett threatened to kill him. My husband said he was doing something to our fence and he felt Bennett breathing on his neck. I decided that it would be OK to give up and sell our house because I thought I could later go to court. If I hadn’t had the option to go to court, I don’t know what I would have done.
I googled on “neighbor” + “death” and found 14 Million hits. Most neighbor disputes actually do involve some sort of color of law, some sort of zoning violations or noise violations.
I relied on Justice Thurgood Marshal and his rulings on malicious prosecution are directly related to the subject of this article, which is why I posted here, because I was a victim of malicious prosecution.
“”Over the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under ß 1983 as well.” Carey v. Piphus, 435 U.S. 247, 257-258, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978). Thus, to determine whether there is any bar to the present suit, we look first to the common law of torts. Cf. Stachura, supra, at 306.
The common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process. “If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more.”
Patsy v. Board of Regents of Fla., 457 U.S. 496, 501, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982)
‘According to a 2010 speech by federal Judge John Kane, about 25% of the civil filers in the federal district of Colorado are now pro se and the starting cost to file a lawyer assisted lawsuit is now over $100,000. He also said that many lawsuit filers start out with a lawyer and then run out of money. What do you think is the solution for someone who is injured and has a cause of action in federal law, such as 42 section 1983, but doesn’t have $100 K?”~Kay
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Looks to me like the legal profession (much like the medical), shot itself in the foot. Not too long ago I read a few articles on how difficult it was for new attorneys to find work…and that even the bar was dissuading people from entering law….especially if $$$ was the goal.
If only it were funny.
I did seek out the best psychiatrists unlimited double and triple health insurance could buy, during the time frame 1986-1993. Total dollar cost, probably over $500,000. Where? The University of Illinois at Chicago Hospital, Forest Hospital (Desplaines, IL), Charter-Barclay Hospital (Chicago), Austen Riggs Center (Stockbridge, MA) and the University of Chicago Hospital.
After our son and his wife were killed, I did seek out and pay the best attorneys our funds allowed, for as long as funds were available.
Those who repeatedly command to Kay to be profoundly stupid similarly to the ways I was ignorantly stupid (during 1986-1996?) harbor, I find, quite terribly cruel beliefs about personal and social human tragedy.
Such folks evidently have not had the experiences needed to know, understand, or do any better than they do.
It might be useful to read the works and biography of psychiatrist Peter R. Breggin before seeing a psychiatrist. He had not written “Toxic Psychiatry” or “Medication Madness” before biopsychiatric model toxicity made my life “interesting.”
With me, all abuses are forgivable, yet none are forgettable.
http://www.youtube.com/watch?v=Sz8QC2Ng3Vs
[youtube http://www.youtube.com/watch?v=Sz8QC2Ng3Vs&w=640&h=390%5D
yup, must be a ‘tool’ thing…..
BIL
I didn’t ask you to diagnose me. I responded to your repeated insinuations.
Do you think that non lawyers shouldn’t be allowed in Congress or in the House and Senate Judiciary Committees?
No, I don’t claim to be an expert on law. However, I did take an aptitude test years ago that found that I was in the top 1% of the country in reading speed, reading comprehension and long term thinking. And I have spent more than three years studying law. And law is now on the Internet as it never was before.
According to a 2010 speech by federal Judge John Kane, about 25% of the civil filers in the federal district of Colorado are now pro se and the starting cost to file a lawyer assisted lawsuit is now over $100,000. He also said that many lawsuit filers start out with a lawyer and then run out of money. What do you think is the solution for someone who is injured and has a cause of action in federal law, such as 42 section 1983, but doesn’t have $100 K?
I am totally convinced I have a Privacy Act claim but I have never ever seen a law firm that advertises Privacy Act expertise. Have you?
“As far as Kay is concerned, I heard ‘this system was my only avenue and it did as much/more harm than the original perpetrator”…”
Because she decided to lawyer for herself, W=c.
If you misuse a tool, it can take off a finger.
Ask any carpenter.
Kay,
I never said I was a psychologist, Kay. I said I’m a lawyer. My opinions of your mental state are the opinions of a layperson. Just like your opinions of the law those of a layperson. If professional concurrence of my opinions as to what is wrong with you and a suggested course of action are required? Please note that my advice and note of obsessive behavior you’ve displayed is in line with the observations and advice of OS, who is indeed a psychological professional. A very heavily qualified psychological professional.
See, unlike you, I listen to professionals in their field of expertise. If they happen to agree with my layman’s assessment? That’s simply good fortune. If OS had told me I was way off base, I’d have listened. But he didn’t.
If you disagree with my reflections on your mental health?
Then you shouldn’t have asked what I thought was wrong with you.
And you still don’t know what you are talking about in regards to law. Citing law doesn’t mean that you understand it. It means you can parrot and copy/paste. You’ve demonstrated that time and again that your substantive knowledge and – more importantly – understanding of the law is practically non-existent. I know this because law is my area of expertise.
Like I said, 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.
Seek out a reputable psychiatrist or therapist.
Today.
I say that as a layman.
Please re-read OS’s suggestion to do the same if you want to hear it from a professional.
Not that you’ll listen since you’re apparently an expert on everything.
Pyrrhic victory
n
a victory in which the victor’s losses are as great as those of the defeated Also called Cadmean victory
[named after Pyrrhus (319-272 bc), king of Epirus (306-272), who defeated the Romans at Asculum in 279 bc but suffered heavy losses]
I had to look this up….and it looks like a ‘scorched earth’ kinda thing….? (still better than slavery….)
Blouise 1, April 15, 2011 at 1:33 pm – yes, exactly.
I can’t respond to every nuance here, I’ve not the time, but…there is a real problem with a system that has little oversight, sees ITSELF as adversarial in PROCESS, and yet is an integral part of the foundation of an entire Nation. All adversary, all the time is insanity and the root source of ‘a house divided’. As far as Kay is concerned, I heard ‘this system was my only avenue and it did as much/more harm than the original perpetrator”…, Kay please correct me if I am wrong. There is a real big problem there…because that kind of behavior in a living organism is called disease. That is what lupus does…a bodies immune system attacking itself. Cancer, a thing that sucks the strength and life from the host body. AIDS- an immune system that ceases to work properly.
The legal system MUST provide a way to preserve the basic elements of service to the people who are the source of power of the Nation…or it decays into an even greater threat than that which necessitated its existance in the first place. And if it must police itself…it must do so ruthlessly and with the kind of accountability that does not leave victims in its wake…
Dear BIL
Please describe your expertise as a psychologist. On a different blog you attacked my character and I asked you what mental illness you thought I had and you were unable to identify one that is consistent with my history.
Whether I “know” law or not is not controlling because I can quote and cite it.
Blouise,
I don’t disagree with that as a general statement. That’s why I gave W=c the style points. But as it applies to Kay? It’s a non-starter.
Of course, the judiciary is feeling the impact of corruption as much as the Legislative and Executive branches. There should be no money in the system other than governmental salaries for everyone from Congress to somebody running for Dog Catcher. But because of their independence, the effects are somewhat mitigated in the Judiciary as compared to Congress and the President, but only a fool would say it isn’t happening. Hugo Black would be appalled if he were to come back today. Justice can still be had, but injustices are indeed steadily on the rise. And like the Russian proverb, “The fish rots from the head”, the problems in the judiciary are making themselves most apparent in SCOTUS cases that fly squarely in the face of logic and good established jurisprudence like Citizens United and Connick v. Thompson.
Corruption is a pan-systemic problem.
Kay,
Like I said, 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.
Seek out a reputable psychiatrist or therapist.
Today.
I read a case involving defamation. A person won a defamation lawsuit and was paid. Then the publisher republished the same defamation. The aggrieved party sued the defamer 15 times and it was finally ruled that each time a defamation is repeated in a new time frame it is a new cause of action.
Res judicata is an affirmative defense. The party making the defense must point to where the decision was made.
Buddha,
I would agree with you if I were referring to Kay/Pyrrhic but I wasn’t talking about Kay … I was referring to Woosty’s stand on principle which wasn’t calling for Kay’s victory but rather for the legal profession’s accountability …“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.”
And like it or not, those ranks are growing and will continue to grow as long as the legal profession as a whole remains numb to its own mistakes.