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.


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  5. BROWN v. SALAZAR United States Court of Appeals, Ninth Circuit. Filed May 5, 2011

    California state prisoner Michael Francis Brown appeals from the district court’s order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we vacate and remand. Brown contends that his guilty plea was not knowing or voluntary because it was induced by a misrepresentation that he would receive a sentence of no more than five years in prison. He argues that the 20-year prison sentence he received violates his Sixth and Fourteenth Amendment rights and that the case should be remanded for an evidentiary hearing. Brown has never received an evidentiary hearing on the voluntariness of his guilty plea, despite providing: (1) detailed allegations in his pro se habeas petitions to the California Supreme Court and the District Court, (2) supporting declarations from three attorneys who witnessed the underlying events, (3) a corroborating letter from his trial court counsel, and (4) requests for an evidentiary hearing with each habeas petition he filed. If true, Brown’s allegations are sufficient to warrant habeas relief. An involuntary guilty plea is “a constitutionally inadequate basis for imprisonment.”Blackledge v. Allison, 431 U.S. 63, 75 (1977). Accordingly, the California Supreme Court’s summary denial of Brown’s petition was an unreasonable application of clearly established Federal law, as determined by the Supreme Court. See Cullen v. Pinholster, 563 U.S. __ (2011); see also Blackledge, 431 U.S. at 75-76; Machibroda v. United States, 368 U.S. 487, 493 (1962). The district court abused its discretion by denying Brown’s habeas petition without an evidentiary hearing on the voluntariness of his plea. See Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005) (“[W]here the petitioner establishes a colorable claim for relief and has never been afforded a state or federal hearing on this claim, we must remand to the district court for an evidentiary hearing.”); see also Chizen v. Hunter, 809 F.2d 560, 561-62 (9th Cir. 1987).

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