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.


    Third Circuit opinion
    Witasick, an attorney, was found guilty by a jury in the United States District Court for the Western District of Virginia of tax evasion ….

    Witasick alleged that Heaphy and Hogeboom engaged in prosecutorial misconduct by failing to present exculpatory evidence to the grand jury, which led to a defective indictment in his criminal proceedings. Witasick sought a judgment declaring that the prosecution violated his Fifth Amendment rights and the prosecutors’ duties under 28 U.S.C. § 530B, and dismissing his indictment, vacating his convictions, and vacating his sentence. Witasick further sought a temporary restraining order enjoining the Government from incarcerating him.

    ….Witasick specifically requests a declaratory judgment dismissing his indictment, vacating his convictions, and vacating his sentence. Compl. at 61. As noted by the District Court, based on the procedural posture of his criminal case, the proper avenue to pursue such relief is through an appeal to the United States Court of Appeals for the Fourth Circuit….itasick also argues on appeal, as he did in his motion for reconsideration of the District Court’s order of dismissal, that he raised his claim of prosecutorial misconduct at sentencing…the court will not address it on appeal because the trial court did not consider it….Whether Witasick properly presented his claim to the trial court or on appeal has no bearing on the New Jersey District Court’s jurisdiction to entertain his complaint.


    The above is a link to an 2003 article saying:

    A lawyer who won the largest wrongful conviction settlement in the city’s history said yesterday that during his investigation he uncovered dozens of cases of prosecutorial misconduct in the Bronx district attorney’s office that did not result in disciplinary action.

    A review of appellate decisions showed that judges had cited prosecutors for misconduct in 72 cases over a 21-year period, ranging from a prosecutor who invoked the Bible in closing arguments to a prosecutor who knowingly let the sole witness in a murder case lie to the jury, said the lawyer, Joel B. Rudin.

    While the misconduct was often egregious and contributed to the reversal of 62 of the cases, only one prosecutor involved was disciplined by the district attorney’s office, said Mr. Rudin, who examined personnel records that the city turned over to him. All the other prosecutors continued to get merit raises and bonuses, according to the records.

  3. OS,

    They might just so she would have absolutely no cause of action.

    I’d say a lot depends on the individual school’s initial refund practices.

  4. BIL, I was thinking along the same line. Do you reckon they would refund her money, since I doubt she could make it three weeks without being escorted from the place by security?

  5. BIL, can’t you just see it now. Kay in Evidence 101 and she starts telling the professor why he is wrong about the law. Wow, that will go over really well.

    Here is a hypothetical: Assume that you care, and further assume that she could get into a law school in the first place. What do you think the odds are that she gets all the way through the first semester without being called into the Dean’s office for an official visit?

  6. Since you seem to have a problem understanding English in addition to law, let me be clear:

    I do not care.

    Piss off, nuisance.

  7. Thompson must have already had a law firm doing his work on percentage that is already familiar with his record.

    I agree he should be compensated as should others who were the victims of prosecutorial abuse, such as myself.

    It takes determined plaintiffs and plaintiffs’ attorneys to stand up to Color of Law abuses. They keep other people safe from tyrants in uniform by holding them accountable.

    Buddah, you may be happy to know that I have talked to my son about becoming a plaintiffs’ attorney. He is a very good writer and speaker and very logical and he is sympathetic to the powerless but determined. He was successfully standing up to our evil neighbor when he was 8 -10 years old. Our evil neighbor the Steamboat Springs city council president convicted drug dealer took over the end of the street adjoining our property and the public land adjoining it with threats and a fence. Our son set up a camp on the public land in dispute and laughed in his face.

  8. Kay –

    “Maybe Thompson can establish that through the prosecutors’ responses to his habeas corpus petitions and then go back for another trial, or maybe they will settle.”

    Maybe. But how does one locked away for decades finance much of anything?

    The deep pockets are on the other side of the table.

    I sincerely hope the man gets at least enough money to live out the rest of his life in peace.

  9. Anonymously Yours –

    Well, I did fudge a little by saying “one of the scariest.”

    But you are oh, so very right, about this damn, knee-jerk love our fearless leaders have for playing with its nifty explosive toys.

    The last time I looked it up, the good ‘ol USA had inflicted its military into something like 70+ actions in 75 years.

    Not even Hannibal could match that.

    And jumping into the middle east must look like bowling for dollars to the Joint Chiefs – the gift that will indeed keep on giving (medals & money) for eons.

  10. PP,

    No the scariest or maybe the worst is the Iraq war….. That will never have an end….NEVER… ask the RCC….about its spat with the Turks….

  11. Dear Paramedic

    In cases against local governments the S.C. ruled that a local government can be sued when the policy represents unofficial government policy. Monnell v. Department of Soc. Servs., 436 U.S. 658, 690-91 (1978)

    Maybe Thompson can establish that through the prosecutors’ responses to his habeas corpus petitions and then go back for another trial, or maybe they will settle.

  12. Stamford Liberal reported:

    “Thomas said that Thompson didn’t deserve any money because he couldn’t prove that there was a pattern of similar violations in previous cases . . . .”

    No, but he certainly could prove he lost many valuable years of his life.

    Hey Stamford:

    Ever think maybe the Senate Judiciary nuts might have paid better attention to Anita Hill? And they completely ignored Angela Wright.

    I’m no expert on the Supreme Court, but I suspect the Bush fast-tracking of Thomas’ career all the way to the top, is one of the scariest manipulations of our time.

  13. Kay,

    If you think I owe you anything let alone an apology?

    Go fornicate yourself, fruit loop.

    I don’t owe you a damn thing but the contempt for your selfishness, arrogance and stupidity that you earned the ol’ fashioned way.

  14. OS That qualifies as an attack.

    The 6th Circuit ruled this week in conformance with my interpretation of the Privacy Act and against DOJ’s pleading. I had argued claims for disclosure of information without authority and possession of First Amendment Records without authority.


    Yes, a lawyer won that appeal. I agree that lawyers can be useful.

  15. OS,

    Not sure she is capable of understanding logic in its written form….then again…sometimes law is not logical…you look for the best that supports your position and go with it…

  16. “181, April 14, 2011 at 3:44 pm
    “No one with a legal background gives a shit what you think, Kay.” Buddha Is Laughing”


    Buddha et al. should apologize to me. I didn’t go to law school, but I can and do read.


    Geeze Kay, I wonder who drop the first stinky bomb here today?

  17. AY, she keeps ignoring the very sound advice to get some psychiatric or psychological help.

    She cannot seem to get the message that she is NOT going to get legal advice here, other than to hire a lawyer if she can find one nutty enough to take her case.

    If she goes to a therapist and finds there is nothing wrong, psychologically speaking, fine. If it is OCD or something similar, then there are good medications and therapy that can help. In the meantime, those incessant postings of the same thing over and over–that no one bothers to read any more–are really getting on everyone’s nerves.

  18. What did I post that was “nasty” or an “attack” or used “obscene” language? (hint, save the blog as a pdf and use word search)

    My experience with law was being abused by the law, including prosecutorial misconduct and failure to disclose exculpatory evidence, i.e. that the prosecution was started in violation of statutory requirements.

    Your experience with the law was that it fed you and yours.

  19. Kay,

    Please stop it….You started out by attacking on this very thread and it got quite nasty….No one has commented here since then…You threw the first scud missile out…

    I wonder what the difference between your other postings on other thread…when you comment about the subject basically…and don’t jack the thread….. Have you noticed NO ONE has attacked you?

    Today, you start this shit….why? Things settled down in your life? It has been a pleasure to read peoples stuff….even Brian has not been so off the wall…. get with the program or get the fuck off….

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