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.
Wootsy
There is no right to representation in civil matters. Even in serious criminal matters there is no right to a competent, honest, or dedicated lawyer, only to someone with a license.
Anonymously Yours, I didn’t say that you threatened me with imprisonment, I said that my husband and I were both threatened with imprisonment for the stated purpose of controlling what we said in court.
This is on the transcripts and in the motions and it is really explicit. The premise was that I was not allowed to represent myself but I was also denied a lawyer to represent me, in the civil proceedings, and in the so called contempt of court hearings the lawyers who were assigned to represent my interests did not do so. All they wanted was to get me to agree to be extorted.
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You know plumbers would probably love a government policy that you couldn’t fix your own toilet but had to hire a licensed plumber.
“The general population needs to defend rights, we cannot trust lawyers to do that for us. Sometimes they will and sometimes they won’t.
As we discussed on a different article, no one blogging had any knowledge of any lawyer or judge even attempting to stop the Holocaust (except of course for Jews who were lawyers before they were stripped of their bar licenses).”~Kay
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Kay you may be bright enough to represent yourself, most are not. I am not. I’m not so sure I agree with the right to represent oneself to be more important than the right to a zealous (and financially accessable and accountable) representation by a lawyer. I also don’t believe that laws should be as ridiculously complicated as they are. Like taxes, a lay person should be able to interpret the intention and the words or it becomes more of a weapon than anything else…
Suffice it to say…I am totally confused by your last posting… There were no threats only…statements of fact….period….
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-then I guess that you have a professional standard that you follow in giving out advice. Kay, in this world of internet anonymity, appears to be looking for information and I hope she understands the qualifications and incentives of those who post….anonymously….on internet blogs.
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Woosty’s still a Cat
The only thing that comes up is related to the Turley site etc….
So anonymity…..is the key huh? Consider the source…..right….
It appears that a couple of folks besides myself have tried to help her with the legal issues and entailments she is about ready to get herself into…….
It also appears that another person schooled in Human Developmental Behavior has put its two cents in as well…
So exactly what are your qualifications……
I just went to see the movie “Conspiracy”. It was how after the Civil War and after Lincoln was assassinated they suspended the Constitution so that they could hang a woman for conspiracy. She was a civilian but she was not allowed a jury trial, just like me. She was not allowed advance notice of the witnesses against her, just like me. And, just like me, the witnesses were threatened with summary imprisonment unless they made statements in court that were dictated to them, just like me.
A year later a civil jury using written procedures found her son innocent. She had already been killed for conspiring with him.
In the movie former Union soldiers said that they had fought to defend our country because of the Constitution that was at least temporarily disposed of.
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I’d also like to make a point about lawyers. That is that all of the papers that created our country were written by lawyers. They did not recognize a right to self-representation, which could have prevented slavery. The lawyers allowed and institutionalized slavery.
The statutory right to self-representation was demanded by the general population and President George Washington signed the law because without it the general population would not have supported the new union. See 28 USC 1654
The general population needs to defend rights, we cannot trust lawyers to do that for us. Sometimes they will and sometimes they won’t.
As we discussed on a different article, no one blogging had any knowledge of any lawyer or judge even attempting to stop the Holocaust (except of course for Jews who were lawyers before they were stripped of their bar licenses).
Anonymously Yours 1, April 16, 2011 at 12:33 pm
Woosty’s still a Cat
1, April 16, 2011 at 12:23 pm
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take your couched threats and stuff them up your legal ass.
What couched threats are you referring to? I have difficulty stuffing things where the policy is exit only…..[Believe this or not there are laws against assisting and encouraging suicide…Most states are 5 years felony’s…]…
-it is not unknown for policy and compliance to be at odds with each other….since I don’t really know you I couldn’t say for sure if that would be the case here…
and take your skeezy projected unowned words and stuff them back down your own throat where they belong.
[ Are you going to be able to assist Kay when she needs help the most? Are you going to financially indemnify her? Are you going to get her the proper legal assistance that she needs? Exactly what is your intent on telling Kay that she should go forward?]
– I don’t know Kay personally, but I sure do hope she’s not oppositional or prone to 3rd party manipulation. But maybe you do know her personally, and have a vested interest in dissuading her from further legal entanglement…so I guess you will be assisting her and financially indemnifying her if she follows your disuassive advice? ….and where did I express any intention that she should do anything one way or the other? (unlike yourself….except to check with her on any possible suicidal ideation?)
That is correct, I have eaten my own words on numerous occasions…Today I am satisfied….are you?
[ Do you really believe that being an agent provocateur is really in her best interest?
Do you really believe that she needs more encouragement?
What if Kay was standing on a bridge about ready to jump off, would you still encourage the same behavior?
Believe this or not there are laws against assisting and encouraging suicide…Most states are 5 years felony’s…]
-your words not mine…more reflective of the mirroring of your actions not mine. Neutrality is neither dissuassive or persuasive in encouraging someone elses actions…show me where I encouraged, provoked, or anything of that ilk?
I’ve never met Kay but I’m no stranger to being intimidated by assholes….Anonymous yuck….
No one is trying to intimidate anyone… Yes, I can be an asshole…Thank you for pointing that out…some see it as a strength some see it as a weakness…. Today…I see it as a useful too to be who I am….anonymously yours…I see you to can play the role….
no wonder you prefer the anonymity… Of course….because what I say on line and who I am in person are one in the same….Take the time to get to know the person or the subject
-I post here as Woosty and have been as open as is warranted by comfort and safety in giving out personal info on the net. I don’t blog here under other assumed names, aka’s or aliases…no known Woosty dopplegangers …no fly by night hit and run shadow post names…
…rather than contributing to further delinquency…
-delinquency?…you lost me there….
I am just trying to figure out your dog in this hunt….
-I’m pretty straight forward…and ‘blogging’ not ‘hunting’..
She has asked for advice and it has been explained and handled to her on a silver platter….sometimes the tarnish needs a little smoothing….
-then I guess that you have a professional standard that you follow in giving out advice. Kay, in this world of internet anonymity, appears to be looking for information and I hope she understands the qualifications and incentives of those who post….anonymously….on internet blogs.
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Are all attorneys really lying scum bags that deserve public flogging, Lynching, Quartered?
…who said they were?
I am just trying to figure out your dog in this hunt….
– my dog is a cat….;)
Woosty’s still a Cat
1, April 16, 2011 at 12:23 pm
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take your couched threats and stuff them up your legal ass.
What couched threats are you referring to? I have difficulty stuffing things where the policy is exit only…..
and take your skeezy projected unowned words and stuff them back down your own throat where they belong.
That is correct, I have eaten my own words on numerous occasions…Today I am satisfied….are you?
I’ve never met Kay but I’m no stranger to being intimidated by assholes….Anonymous yuck….
No one is trying to intimidate anyone… Yes, I can be an asshole…Thank you for pointing that out…some see it as a strength some see it as a weakness…. Today…I see it as a useful too to be who I am….anonymously yours…I see you to can play the role….
no wonder you prefer the anonymity… Of course….because what I say on line and who I am in person are one in the same….Take the time to get to know the person or the subject…rather than contributing to further delinquency…
I am just trying to figure out your dog in this hunt….
She has asked for advice and it has been explained and handled to her on a silver platter….sometimes the tarnish needs a little smoothing….
What if it is right to be wrong?
What if majority views firmly grounded in the everlasting firmament…(your choice of words belong here)?
What everlasting firmament?
What if doubt sometimes is a guide for proceeding with care, and not, as in what may, or may not, have been the view of the Great Professor Semrad, proper cause for abandoning all hope of future decency?
If deception actually exists, is not the central enigma of effective deception simply that those who have been deceived tend to have been deceived into being impossible to convince regarding their being deceived?
Can a deceived person who knows and understands having been deceived remain deceived?
Who, among the intransigently group-deceived, understands the deception of self within the deception of “copy-cat” community shared error?
Stockholm effect? The more costly an error is to some members of society, the more it is prized, cherished, and valued by them, and the more it ruled to be intolerable violation of a sacred taboo to doubt the merit of the costly error?
It is good to learn that “parallel universes” actually exist?
Perhaps I actually live in a parallel universe to the one of “most people”? In the universe wherein I live, deception is of error, and is something to learn to avoid, and not promote.
Perhaps I actually live in a parallel universe to the one of “most people,” in which children need to be hurt, abused, and broken, before becoming socially acceptable? In the universe wherein I live, children are to be seen, heard, loved, and valued in their own right, and not hurt into becoming deceived.
Perhaps the natives are getting restless? Are the natives of a majority or of a minority?
Anonymously Yours 1, April 16, 2011 at 10:45 am
Are you going to be able to assist Kay when she needs help the most? Are you going to financially indemnify her? Are you going to get her the proper legal assistance that she needs? Exactly what is your intent on telling Kay that she should go forward?
Do you really believe that being an agent provocateur is really in her best interest?
Do you really believe that she needs more encouragement?
What if Kay was standing on a bridge about ready to jump off, would you still encourage the same behavior?
Believe this or not there are laws against assisting and encouraging suicide…Most states are 5 years felony’s…
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take your couched threats and stuff them up your legal ass.
and take your skeezy projected unowned words and stuff them back down your own throat where they belong.
I’ve never met Kay but I’m no stranger to being intimidated by assholes….Anonymous yuck….
no wonder you prefer the anonymity…
I am just trying to figure out your dog in this hunt….
No Kay, I am not a warden and as the joke goes, never played one on TV.
I am one of the highly skeptical doctors you would have to convince. Do you have any idea how hard it is to prove a negative? I am not about to let someone off suicide watch until I am completely satisfied beyond a shadow of a doubt, that the person is not blowing smoke at me to just get off the watch. And end up killing themselves.
Which is a good way to end up with a news reporter sticking a microphone in my face and asking why on earth I let the suicidal inmate off suicide watch. That has not happened to me, and I intend that it never does. So I, and my colleagues, are damn hard to convince.
OS I am leaving to see a movie w my husband. Are you a warden?
File away if that’s what you want.
Since your husband is already going to movies alone on a Friday night, why shouldn’t he be on board? Out of his life because you are behind bars or out of his life because of your obsessive behaviors is a difference without a distinction in the realm of marriage and companionship. What has he got to lose that he hasn’t already lost? It’ll give him a more face saving option come divorce time. He might get looked at funny by some people if he chose to divorce a sick woman, but nobody is going to bat an eye if he chose to divorce an inmate. Then you’ll have something else to blame on others.
Self-destructive is as self-destructive does.
Kay, what I had in mind when I mentioned PFC Manning, is that he is on suicide watch. I do understand he is in the brig and not in a BOP facility. However, suicide watch is suicide watch. I have ordered inmates to go on suicide watch, but never punitively. I am aware that it is sometimes used punitively, but be assured that if it happens there will be a credible paper trail to justify it. In your case, you have made it easy. You made oblique allegations of suicide being something you have thought about. You even had a rope at one time and threw it away. That statement alone was enough for you to get 100% of MY attention.
And you are right about one thing: they will definitely go over your blog posts and find those statements and the subsequent discussion. I would be willing to bet you the price of a Happy Meal that you would go straight on suicide watch. Every facility has slightly different rules, but let me tell you how it is with ours.
You will get a paper nightgown that will look similar to a hospital gown. You will get no bedding because sheets and pillowcases, as well as underwear, can be used to fashion a noose. Our facility has a bunk made of concrete, but where I worked before, the bunk was a sheet of steel with holes perforated in it. Lights are on 24-7, and there is a picture window of thick glass in the suicide watch cell so the inmate will have no place to hide. You will be awakened several times during each sleep cycle in order to make sure you have not done something to kill yourself and are in a coma(or dead) instead of sleeping.
In our facility, you do not come off suicide watch until you can convince some gimlet-eyed and skeptical doctor you are no longer suicidal. On suicide watch, the inmate has to prove, affirmatively, they are no longer suicidal.
And if you piss off the prosecutor or the correctional officers, keep in mind they control the thermostat in the cell.
Kay,
Yes RJ is a shield….to further litigation…But since you know this…why…are you still filing…..
I am very familiar with Robert Kearns and family…When he sued Ford…HE WAS REPRESENTED BY ONE OF THE BEST LAW FIRMS IN THE COUNTRY. After that he decided to go solo because he already had one victory….guess why he did not want to hire counsel to go after GM, Chrysler et al…. he did not want to pay nearly 40% plus cost…. He gambled and won….only because he could….he had a retirement from Ford to live on….
You Kay….do not have even one Victory….You have cases dismissed by the court….INVOLUNTARY….These are decided matters….maybe not on the merits….BUT DECIDED….Since you are held to the same standard as an attorney even pro se….You will suffer the consequences as to both…. don’t you see this?
See what res judicata means: the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter…..
Collateral Estopple is where parties may be estopped from litigating determinations on issues made in prior actions. The determination may be an issue of fact or an issue of law.
Preclusion requires that the issue decided was actually and necessarily decided as part of a valid final judgment. Valid final judgments of state courts are given preclusive effect in other state and federal courts under the Full Faith and Credit Clause of the U.S. Constitution.
Collateral estoppel (CE), known in modern terminology as issue preclusion, is a common law estoppel doctrine that prevents a person from relitigating an issue. One summary is that “once a court has decided an issue of fact or law necessary to its judgment, that decision … preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case.”
The rationale behind issue preclusion is the prevention of legal harassment and the prevention of abuse of judicial resources.
See Rule 41 (b)
(b) Involuntary Dismissal; Effect.
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.
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So Kay, what am I missing?
O.S. Well the feds can do anything they want because they are responsible for implementing the law. BUT only convicted parties are sent to federal prisons in custody of BOP. All other federal prisoners are in custody of the USMS. The USMS doesn’t have its own jails, it stores prisoners in local government jails under contract with USMS. And the contracts require that they only hold people pursuant to a criminal charge and that they give you medical care.
Yes, I know that a lawyer won’t visit you if you are in federal custody unless you have a private lawyer or a federal public defender or you are a material witness for a federal grand jury. Also, there is no law library and they won’t give you habeas corpus information.
There was a prisoner killed by another prisoner in Denver County Jail in 2005. The killer wasn’t a charged murderer.
I saw a woman who was diagnosed as having Hepatitis C bite another woman in an argument over television. Hep C is contagious through biting.
A relative of a friend died from Hep C. She was an MIT graduate and a pre med major and she claimed to have no knowledge of how she got it.
I know that I SHOULD go to court again and my husband is totally on board. I just want to do it as well as possible.
Wootsy,
What is your dog in this hunt? Are you going to be able to assist Kay when she needs help the most? Are you going to financially indemnify her? Are you going to get her the proper legal assistance that she needs? Exactly what is your intent on telling Kay that she should go forward?
Do you really believe that being an agent provocateur is really in her best interest?
Do you really believe that she needs more encouragement?
What if Kay was standing on a bridge about ready to jump off, would you still encourage the same behavior?
Believe this or not there are laws against assisting and encouraging suicide…Most states are 5 years felony’s…
Are all attorneys really lying scum bags that deserve public flogging, Lynching, Quartered?
I am just trying to figure out your dog in this hunt….
Kaym as for the comment they might have thrown you in with a serial killer. That is not what you need to worry about. I know quite a few serial killers and while I would not invite one to dinner, they are pretty much like everyone else most of the time. Think Bradley Manning.
Keep in mind the Feds, once you are in custody, can do just about any damn thing they want to you, with impunity. And if you are pro se, unlike PFC Manning, you will not even have a lawyer to come visit you and check on you.
The great Harvard psychiatrist, Semrad, had a piece of advice for his students in practicum classes. Here is the context: He was discussing when the psychiatrist should make an intervention in treatment or keep his or her mouth shut and let it go. Dr. Semrad said:
He meant that if you are questioning the ‘rightness’ of an action, and you keep saying to yourself, “Should I do this,” then your unconscious mind–which is often a lot smarter than the conscious mind–is telling you the answer you should listen to.
“Jeez am I scared.”
You should be.
Very.
Well OS I will come back and tell you what I have done. I dreamt about it all night and here I am in front of my computer again.
As I understand it, res judicata is an affirmative defense. The plaintiff must be allowed to file. It is the burden of the defendant to point to the record as to where something was decided and prove it is the same thing.
They can’t meet that burden at all. As far as my defamation claims, in my D of Colorado case they argued that there is a one year statute of limitation for defamation and would not allow me to plead prima facie tort or section 1983 conspiracy. Then they took different articles and put them up on the Internet again. Then I sued them again and they argued that the articles were based on the same series of events but the judge dismissed on the basis that I wasn’t allowed to represent myself. Then I sued them again in a different federal court. That was when they asked to have my husband put in jail unless I filed a motion to dismiss and they made my release from jail contingent on filing a motion to dismiss. So the truth of the underlying articles was never litigated. They contained knowing republication of statements by third parties that they knew were incorrect or false light publicity when they were published. And those articles are published to this day. On the Internet.
My original First Amendment Retaliatory Criminal Prosecution and Retaliation in a Non Employment Context also were never decided. There was no memorandum order to point to and the judge couldn’t adopt the magistrate’s report because we filed a timely objection. The immunity doctrines advanced in that were inconsistent with Supreme Court decisions some of which we cited.
Anyway I don’t have a forum to go after the third parties. I can only go after the government, it can go after the 3rd parties through joinder if it wants to. I have two Privacy Act claims. One is a (7)(e)claim for unauthorized possession of records of the third party lawsuits. I aborted a second lawsuit before the government filed an answer or a motion for summary judgment using Rule 41 a (1)for a dismissal without prejudice. In that the government stated three times that in DOJ # 1 Judge Bates ruled that it or its systems of records are exempt from e(7) which is impossible. Through DOJ # 1, I was informed that the USMS in Denver had records of my civil lawsuit in DDC and my filings in state court. I didn’t know that until less than 2 years ago. That is something that could affect all of us, if I lose it the government could keep records of our blog. They could consider our blog records when we are old and ask for government paid medical care or when our children apply for federal employment. It is really pretty scary. You know even those who blog anonymously that the government can find your identity. I don’t even think they need a search warrant.
My Privacy Act claims around the Joint Automated Booking System records must have a two year statute of limitations starting Dec 2010. That is the date I first got the JABS records. That is the date on the printout. Before then the government maintained that there were no JABS records.
The JABS decision whatever it is will probably also affect basically all Americans. Right now the system as published in the Code of Federal Regulations is only for use when there is a criminal charge and if there is no criminal law enforcement function you can sue. If I lose, then the government will claim immunity for arresting people without a criminal charge. Entry into JABS is a gateway to entry into the Prisoner Tracking System and Prisoner Transportation Systems. You aren’t supposed to be in federal custody unless you are in the PTS. Although they had me for 3 weeks with no PTS records during which I was scheduled three times to go on Con-Air. I think they might have planned to leave me alone with some serial murderer.
Anyway, I will be so polite you won’t believe it. Absolutely perfectly polite. And I will dress up. And I will modulate the volume of my voice.
Let me know if you have any good advice not already given.
Jeez am I scared.
Kay, if you file in Federal Court, they are unlikely to kill you and eat you. Beyond that, I have no idea what they might do. AY described above in some detail what MIGHT happen, so if it comes to pass, you at least some idea what to expect. You seem hellbent on filing, so in the words of my old Department head: