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.
It is your smarmy empathy and encouraging her
——————————————
smarmy empathy?
nice
before I go play in a sandbox with a little less stench in it, you go right ahead and show me where I have given advice or encouraged her. Or maybe you just need to unload. Because looking back at the posts I’ve seen some smarmy but it isn’t coming from me. I’ve seen some nasty deliberate button pushing and it is more than obvious that being nasty is some peoples idea of intelligence…but if you can’t do anything but name call and point fingers….then go fuck yourself.
And given your propensity for projection I doubt your credentials….
W=c,
I’m not upset with you in the slightest.
The only legal advice I have given Kay is “hire an attorney”.
While I have ceased to be nice to her because she I find her a threadjacking ill- and misinformed annoyance, what little compassion I have left after many months of listening to her is expressed in my layman’s advice that she seek medical help based solely upon the patterns of behavior she has exhibited here.
Interact with her all you like and in any manner you like. That is your right. Pointing out that you might want to consider the consequences is not jumping on you. It’s pointing out that there could be consequences and you might want to consider them. No more, no less.
Whether you do or not is up you.
And what OS said with the exception I don’t consider your empathy smarmy. Empathy is an admirable trait, even if it is . . . ill-thought out for lack of a better term.
Woosty, I just realized that you do not have a clue. It is your smarmy empathy and encouraging her that BIL and I are talking about. Your statements about how put upon she is and snide remarks about those who are telling her how the cow really ate the cabbage are what she will latch onto. What we know about confirmation bias tells us she will listen to you before she will listen to those who tell her the awful truth.
One does not have to know someone personally to do what you have been doing. Kay is not a bad person. She has engaged in behavior that is annoying, but she is not evil. She appears to have an obsession that is going to eat her alive, and the worst thing one can do is to encourage her to proceed, however indirect that encouragement may be.
I don’t know Kay.
I don’t know your relationship with Kay.
I don’t know ANYONE on this blog in a personal fashion whatsoever.
I am not giving her advice one way or the other.
I don’t even think I am being all that kind to her….just not (like some people here…) unkind.
Unless she has some further relationship with any of you here…I think it would be foolish for her to take anyones advice.
I can’t imagine that she doesn’t have a ton of papers and records that would need to be reviewed WITH HER for the purpose of giving legal advice. Please stop jumping all over me for interacting her.
Kay…if you feel that I have given you any ‘advice’ regarding your situation other than to acknowledge that you HAVE a situation and that you have a decision to make…please IGNORE AND OR CANCEL IT OUT PLEASE! I don’t get the feeling that you are irresponsible but people here who have given you advice seem to be getting upset with me.
W=c,
I couldn’t have answered you better than OS just did.
The road to Hell is paved with good intentions.
Sometimes, people not only let others do the paving for them, they seek them out in an open bidding process.
Your heart is in the right place, but really, you should heed OS’s words when he says you are not doing Kay any favors.
Woosty, you are telling Kay what she wants to hear, not what she needs to hear. She will hear your soft voice to the exclusion of the more forceful voices of the true experts.
Please, Woosty, you are not doing Kay any favors by doing what you are doing. When this all shakes out, she is the one who is at risk of going back to prison, not you. If that happens, I want you to remember this exchange and burn it into your brain.
I knew Jay Ziskin (Coping With Psychiatric and Psychological Testimony, 3 Volumes plus supplements) and have appeared on panel discussions with him. One of the things he was good at was designing cross examinations to confront expert witnesses regarding confirmation bias when they drew their final conclusion.
Burgess, J.A. (1984). Principles and techniques of cross-examination. In B.G. Warschaw (Ed.), The trial masters: A handbook of strategies and techniques that win cases (pp. 249-255). Englewood Cliffs, NJ: Prentice-Hall.
I don’t get your point here Buddha.
who is biased and about what?
Evans, J. (1989). Bias in human reasoning: Causes and consequences. Hillsdale, NJ: Erlbaum.
“Confirmation bias (also called confirmatory bias or myside bias) is a tendency for people to favor information that confirms their preconceptions or hypotheses regardless of whether the information is true. As a result, people gather evidence and recall information from memory selectively, and interpret it in a biased way. The biases appear in particular for emotionally significant issues and for established beliefs. For example, in reading about gun control, people usually prefer sources that affirm their existing attitudes. They also tend to interpret ambiguous evidence as supporting their existing position. Biased search, interpretation and/or recall have been invoked to explain attitude polarization (when a disagreement becomes more extreme even though the different parties are exposed to the same evidence), belief perseverance (when beliefs persist after the evidence for them is shown to be false), the irrational primacy effect (a stronger weighting for data encountered early in an arbitrary series) and illusory correlation (in which people falsely perceive an association between two events or situations).
A series of experiments in the 1960s suggested that people are biased towards confirming their existing beliefs. Later work explained these results in terms of a tendency to test ideas in a one-sided way, focusing on one possibility and ignoring alternatives. In combination with other effects, this strategy can bias the conclusions that are reached. Explanations for the observed biases include wishful thinking and the limited human capacity to process information. Another proposal is that people show confirmation bias because they are pragmatically assessing the costs of being wrong, rather than investigating in a neutral, scientific way.
Confirmation biases contribute to overconfidence in personal beliefs and can maintain or strengthen beliefs in the face of contrary evidence. Hence they can lead to disastrous decisions, especially in organizational, military, political and social contexts.”
http://en.wikipedia.org/wiki/Confirmation_bias
‘Wootsy’ is not much of a drinker…and Woosty isn’t either….;)
I don’t know if holding down the fort with a blog is in my stars but for now, other pressing matters prevent the obligation that a real blog would demand. How about you Kay?
Anonymously Yours 1, April 16, 2011 at 3:51 pm
To render either legal or medical advice….
—————————————–
With regards to Kay I have done neither.
What are your qualifications?
…and thank you Kay, I appreciate that and from what I have witnessed I think you are an honest person, not prone to unduly blaming others and obviously dealing with a difficult
situation.
I know what it is to be stuck between a rock and a hard place….
One thing I don’t like about Buddha is that green face.
Wootsy is a good writer. And her use of songs is great. And, her writing is sort of like Ann Landers, in a new age version. She uses the medium in a socially responsible, constructive, and compassionate way. I think Wootsy could get a regular blog going and that it would get a good following.
Confirmation bias much?
Wootsy seems to be open minded and nice. She seems to have a real sense of social responsibility. Her posts seem rational and sensible.
Wootsy doesn’t seem to be drinking and she doesn’t seem to have a hidden agenda.
To render either legal or medical advice….
“You know plumbers would probably love a government policy that you couldn’t fix your own toilet but had to hire a licensed plumber”.-Kay
————————————-
🙂 no comment………….
—————–
—————–
“The only thing that comes up is related to the Turley site etc….”~AY
AY- Woosty actually has a very weak blog started….but do be careful googling I found a malicious spyware page using Woosty’s name. Sorry you were confused, I admit it was difficult to respond to the responses mash up and it became difficult to follow…
“So exactly what are your qualifications……”-AY
—————————
qualifications for what? blogging?