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.
Kay S.,
Where have you been Joe has been looking for you too. Come on back to the other site. It has not been the same without you. You have been missed, did the Doctor ever get those meds right? I had heard you had another episode. Call Ellen, she wants to hear from you.
kay,
Have you noticed your actual friends are concerned about you and your behavior?
The term ‘an authoritarian regime’ denotes a state in which the single power holder – an individual ‘dictator’, a committee or a junta – monopolizes political power. (Thanks Wikipedia)
That is what we had in Steamboat Springs Colorado when King Bennett ruled. (don’t read that if it offends you)
Totalitarianism (or totalitarian rule) is a political system where the state, usually under the power of a single political person, faction, or class, recognizes no limits to its authority and strives to regulate every aspect of public and private life wherever feasible. Totalitarianism is usually characterized by the coincidence of authoritarianism (where ordinary citizens have less significant share in state decision-making) and ideology (a pervasive scheme of values promulgated by institutional means to direct most if not all aspects of public and private life).
“Even more money could be saved if only one witness is needed for conviction, and the witness is also the judge (no juries, they cost too much and may have a divided opinion) and lawful executioner?”
There are a couple of words that describe such a scenario.
Lawless vigilantism and anarchy.
Given the deteriorating state of the economy, the most efficient and economical way to solve the problem of prosecutorial misconduct is to eliminate the entire appeals process, so that every decision is final and without any form of subsequent recourse?
That would make the system fair, because it would no longer matter whether one did, or did not do, something? Only the judgment would matter, and all judgments would, by definition, be true when made?
Not only that, but a fortune would be saved for the very rich, who would no longer need to pay any taxes because they could easily pay for one a simple, permanent judgment that they are too important to society to pay taxes?
If the only sentence for conviction for every offense is immediate, summary execution, the cost savings would very quickly pay off the national debt?
Even more money could be saved if only one witness is needed for conviction, and the witness is also the judge (no juries, they cost too much and may have a divided opinion) and lawful executioner?
Of course, I know nothing of law nor anything else, which I obviously stipulate, whatever that means?
In my ignorance, I read a story, sometimes called “The Saga of Burnt Njal”?
Were I to have understood that Icelandic story, and I certainly did not understand it, I might be able to wonder whether the legal mess which we are in and which does not exist, began with allowing appeals in that fifth court in Iceland or in some similar sort of process in which a judgment is not necessarily final and beyond any allowable review?
The fact, which is not a fact, that I have not found an older make-believe story about an appeals court does not mean that they have not been here forever?
Not knowing anything and not knowing how to learn anything is the perfect way to live?
P.S. BIL and Anonymously Yours shouldn’t read that post. We should change the subject to insurance for malicious prosecution claims.
In Colorado, Weld County or was it Fort Collins paid Tim Masters something like $4.5 million on a similar claim. They had DNA evidence they didn’t turn over. He was convicted because he drew gross drawings when he was 15 and lived nearby.
I have an email around here somewhere from the City of Fort Collins saying they bought their insurance from AIG so I think that is who paid for the Tim Masters settlement.
You know I had a letter from the supervising district attorney in Routt County Colorado where I was criminally prosecuted saying that they didn’t have a written statement of probable cause when I was prosecuted and they gave a press conference to say that I was guilty but a trial was too expensive and in 2003 the federal court in Colorado ruled that all prosecutors have total immunity. Some people act like it wasn’t important because the charge was only harassment not murder but the statutory requirements for written probable cause were the same and the tort was the same plus I had the press conference after the criminal charge was dismissed. I also sued the prosecutor, her supervisor, and the complaining witness under section 1983.
I think the reason that the claim was dismissed was that she bought insurance from Underwriters at Lloyds London. I still have the on-line resume from the lawyer who they billed for Underwriters at Lloyds London. It says
Wally Slezak has more than 25 years of extensive
insurance coverage and claims handling experience in
direct insurance matters involving both primary and
excess layers and first-party and third-party contracts,
as well as in reinsurance matters for facultative and
treaty involvements. This broad experience includes
environmental pollution, asbestos, professional liability, and construction-related claims.
In E&O matters, Wally has represented public
defenders, district attorneys, court appointed counsel,
and publicly-funded lawyers, as well as mediators,
arbitrators and safety consultants. He has worked on
several sex-abuse and misconduct claims and he co-
authored the 1995 and 1998 editions of American
Reinsurance Company’s book Coverage and Liability
Issues in Sexual Misconduct Claims.
Mike A.,
Thanks for the additional information — I appreciate it. This is one sad story, on many levels…
OS,
That is outrageous that Zain got a similar job in Texas after the crap he pulled in WV!
Mike A.
Thanks for the update on what happened to the DA’s who hid the evidence.
The truly outrageous thing about Fred Zain was that after he was found out to be a fraud and was fired by West Virgina, he got a similar job in Texas.
OS,
Simply shameful.
I have a good buddy who is a lab manager. They do mostly hospital work, but the do some forensics work as well. He takes his job very, very seriously. As serious as the best attorneys I know and more so than most attorneys that I know. His view is simple: people’s lives depend on the quality and veracity of the work his lab does whether it’s for treatment and diagnosis or for court. He wouldn’t want people screwing up or with his blood panel or urine analysis, so he does his best to make sure that no one has that happen to them as a result of the tests run in his lab.
Good fellow. Overall? One of the best I know. His word is gold with me.
I think you’d like him.
BIL, yes he was. Linkee thingee here:
http://truthinjustice.org/expertslie.htm
I know more about this case than I wish I knew. My grandmother always said that if you cannot say something good about somebody, you should not say anything. So I will only say something good. He is dead.
OS,
Wasn’t he the guy who botched and falsified a bunch of lab work?
Given as fact that everyone may sometime break a law, of what importance is it whether one is convicted of breaking a law one did not break if one was not convicted of a breaking a law one did break?
What difference does it make if one is convicted of breaking a law before or after breaking it or another law?
Aren’t those just the breaks?
Is it not a fact that we are all guilty of something?
You guys ever hear of Fred Zain, the police serologist from West Virginia?
Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers. The types of issues which may initiate a pattern and practice investigation include:
Lack of supervision/monitoring of officers’ actions;
Lack of justification or reporting by officers on incidents involving the use of force;
Lack of, or improper training of, officers; and
Citizen complaint processes that treat complainants as adversaries.
Mike A.,
Exceptional post.
I’ve said words to this effect elsewhere but it bear repeating here: In the NO legal community, Connick has an excellent reputation as a politician. As a lawyer? He has an excellent reputation as a politician.
There is no justice in New Orleans when dealing with locals like Connick.
There is only politics and cronyism and corruption.
Mike A.
This is very well written, explained and argued! Thanks for the update given to anon nurse. Keep up your good work! I am very sorry for this cruelty and the lack of redress for it.
anon nurse:
The prosecutor who buried the lab report was an assistant DA named Gerry Deegan. He is deceased. Shortly after being diagnosed with terminal cancer, his confessed his actions to Michael Riehlmann, a friend and former assistant district attorney. Riehlmann kept the secret until after Thompson’s lawyers discovered the lab report five years later. Riehlmann was eventually disciplined by the State Bar of Louisiana.
DA Connick (who is the father of singer Harry Connick, Jr.) has neither disciplined nor terminated anyone in his office who was involved in the incident. To the contrary, he terminated a grand jury investigation into the affair on the ground that his prosecutors could not have known the lab report was exculpatory because none of them knew Thompson’s blood type. I guess you could call that a sort of “don’t ask, don’t tell” policy. In any event, the prosecutor handling the grand jury investigation resigned in protest.