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.
Well Kay,
Since you have admitted to being numerous “sockpuppet” and “Zombie” names…how can we be sure you are not one of the others…that you deny….
I agree with you about the Connick decision…
I know someone who blogged under the name “Pete Smith”. His real name is someone else. He has emailed to me for years, I know his real name and we have talked on the phone. The “Pete Smith” blogger here is not the same one.
I also don’t believe is is the same person as has been blogging here under the name “Pete”.
Anonymously Yours
I think the Connick v. Thompson decision is bad public policy. I hope that the result is that Congress holds hearings on prosecutorial misconduct and passes a law directed to that. Of course, that wouldn’t directly affect state prosecutors but often when a federal law is passed the states pass a similar law.
As I’ve said before, I think that prosecutors should be required to file a detailed statement under penalty of perjury that they have turned over all exculpatory evidence and that they should be required to file a detailed statement of probable cause before a trial.
Yes Kay,
Federal Courts are courts of limited Jurisdiction…. They cannot generally sit in the same seat as a State judge… They maybe able to do certain things but that is only when congress or the sct has stated that they can….
It is like the eastern district of the american Samoa deciding the law in the western district of Florida… It may be able to be done….but its limited to the issue before it….and tenuous at best…
Oh yeah…you found that one out the hard way….4 months was it…. The Federal Distinct Courts in Wisconsin, Minnesota and Iowa can hear cases affecting people of Colorado…but you have to have some “Nexus” key word….other than that its called forum shopping…. its also called abuse of process…its also called contempt…by the court that it was filed in an dismissed out of….
Because that’s where it is found, Kay. What part of “Since there is no federal rule establishing a procedure for civil contempt, the court should follow the procedures of Fed. R. Crim. P.42 to the extent applicable” doesn’t register? The power to hold you in civil contempt is inherent in the court and not reliant upon statutory authority. I repeat: the court’s power to hold you in contempt does not require specific statutory defined process. Absent the statutory mechanism for a procedure to deal with civil contempt, the Courts use the statutory mechanism for the criminal contempt procedure borrowed from the Fed. Rules of Criminal Procedure. And I’ve got bad news for you, sunshine. Even if the Fed. Rules of Civil Procedure had a defined process for dealing specifically with civil contempt? It would look almost exactly like the current rule FRCP 42(b). It would have to by the simple operations of the nature of contempt and the fact that holding a person in contempt is an inherent power of the court.
Those are the facts, Kay.
If they don’t comport to your insane delusional world where you are the final arbiter of what is the law?
Too goddamn bad.
Seek professional mental health care service.
By the way Kay,
I do not believe that anyone attacked you….again… get a lawyer and get help…. You are deluded in how you approach things.
By the Way….. I went though the blawg and I did see where a Pete posted and you inquired if this was Pete Smith…. Then yesterday, you claimed not to know a Peter Smith and then posted under reader trying to make character assassination upon me…so really Kay, what is going on…. You say that you are having to defend yourself…really now…why?
Have you ever noticed that there are people on this blawg that never feel the need to defend themselves…. could you have tossed the first verbal armament? Do you even realize that you have been offensive, abusive, obnoxious, self serving and most of all in the greatest of denials…which has cost you your liberty….
Kay sez: “It helps me to feel that even if I have suffered, through my court filings and publications I am actually affecting the law so that the same thing won’t happen to someone else. I actually think that I personally have affected the law as to the best of my knowledge no one else has been incarcerated by the USMS for violating a NO PRO SE order.”
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
There are two points here:
1. you have not affected anyone though your “…court filings and publications…” except to establish that there is something seriously wrong with your mental processes.
2. You do not know that to be a fact; however, the order in your case was not to prevent pro se clients from filing whatever they wanted. It was about you specifically for doing something that would have gotten a real lawyer disbarred. If in fact no one else has been jailed for violating an order while filing pro se, perhaps no one else has been dumb enough to do something as incredibly stupid as what you did.
Kay,
As others have suggested, maybe your own blog would be helpful… It’s like watching an endless game of tug o’ war…or someone beating a dead horse…
What about Connick v. Thompson?
I don’t want to be insensitive — I do wish you the best.
The federal courts are courts of limited jurisdiction. Nottingham had dismissed my action in 2004. In 2005-2007, he used threats of violence by USMS to control what happened in a different court.
anon nurse,
It does not help her…Kay is either so self deluded, never came back from the acid trip, is drinking, or certifiable insane….
What Kay does not grasp….is that the court make hold you in civil contempt….with a component of criminal contempt….
It may very well be true that she was never charged with Criminal contempt…she could have been just held on the civil matter until she dismissed the other law suits….You see the Judge did not have power over them…what he did have power over was the one that was in front of him….. and if she wanted out of the custody of the USMS…then…she held the keys….
It is kind of like how do you like your eggs cooked…. Once the shell is broken…you can no longer have a hard boiled egg…you can poach it…of you can fry it….but you’ll never have the ability to have a hard boiled egg…
The problem with her reasoning is the “Yoke” is on her…
BIL
If the courts can use Rule 42(b) for “civil contempt” then why is the Rule in the Rules of Criminal Procedure and not in the Rules of Civil Procedure?
Dear Anon Nurse
What do you consider “this”? I was merely blogging about the article until certain people attacked me.
It helps me to feel that even if I have suffered, through my court filings and publications I am actually affecting the law so that the same thing won’t happen to someone else. I actually think that I personally have affected the law as to the best of my knowledge no one else has been incarcerated by the USMS for violating a NO PRO SE order.
I already did and I don’t have to withdraw a damn thing, Kay.
This isn’t a court, you aren’t even a lawyer let alone a judge so do not presume to tell me to withdraw anything, you arrogant delusional asshat. You have zero power to order me to withdraw anything. ZERO. Just to be clear.
You were held in CIVIL contempt. There was a judicial finding holding you in civil contempt as evidenced by the fact a filing was made with the clerk and your dumb ass was arrested. The Courts used the mechanisms of 42(b) to handle CIVIL contempt. Why? Because that’s what it is there for. That you are too delusional and stupid to understand that? Is your problem. And like all of your related personal problems, you should quit hijacking other’s blogs with them.
Seek professional mental health care.
Kay,
How does this help you?
Please provide a citation for your opinion that civil contempt is punishable under Rule 42(b) BIL or withdraw it.
Rule 42(b) Summary Disposition.
Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.
My case didn’t have an order finding me in criminal contempt.
Quote whomever you like, Kay.
You’re a crazy person spouting out of context gibberish.
You were held in civil contempt.
Civil contempt is dealt with in Federal courts by the same mechanism as criminal contempt: Rule 42(b).
OS,
Reality has many different meaning to the person claiming they are sane. I know we all do some insane thing but to verging degrees…. It appears that Kay suffers from the scorned spouse that feels like they did not get a fair share….
to QUOTE the 7th Circuit
“A finding of direct contempt is appropriate only if the criminal contempt occurred in the presence of the judge and “the judge saw or heard the contemptuous conduct and so certifies.” Fed. R. Crim. P. 42(b). Contempt in the presence of the court “must be punished on the spot to maintain the court’s authority.” Mann v. Hendrian, 871 F.2d 51, 52 (7th Cir. 1989). The use of the summary contempt power is proper only for “charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority’ before the public.” Pounders v. Watson, 521 U.S. 982, 988 (1977).
“The Supreme Court has said that [summary contempt] is reserved for ‘exceptional circumstances’ ” which include “acts threatening the judge or disrupting a hearing or obstructing court proceedings.” Id. at 250. Absent those circumstances, the judge should proceed under Rule 42a’s procedures. See id. “[T]he power of summary contempt is capable of grave abuse, and is properly regarded by the courts with extreme disfavor.” Id.
“Accordingly, the Supreme Court has indicated that the power of summary contempt is limited to cases in which immediate punishment is essential to prevent demoralization of the court’s authority before the public, and that before the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual obstruction of justice.” Id. at 250-51
The judge found the “presence” condition satisfied in this case because he could read the e-mails on the court’s computers (including the computer in the courtroom) and his PDA which he carried with him so that he was “always in communication” with the court. Neither finding is sufficient to satisfy Rule 42’s “presence” requirement. We resist the district court’s suggestion that the term “presence” should be expanded to reach beyond the judge’s actual, physical presence.The narrow construction makes sense in this case.
Further, despite his statement that he relied on no extrinsic evidence to find Trudeau in contempt, the judge had to do research in order to figure out why he was getting Trudeau’s e-mails. He (or his staff) went on Trudeau’s web site, had his court reporter transcribe the broadcast, and entered the e-mails, web site posting, and broadcast into the record.
This level of fact-finding renders summary disposition improper: the justification for summary process is that because he witnessed the contemptuous conduct, the judge knows all he needs to know in order to punish the defendant. Even if the external facts determined by the court are uncontested, we are loath to endorse a system where the only way a defendant can avoid summary process is by denying these facts. This would create a real Fifth Amendment concern by essentially forcing the defendant to admit or deny incriminating behavior before determining the process to which he is entitled.
Amicus presses the urgency of the situation the district judge faced, which he says justified summary punishment. We note that this argument assumes that the contempt occurred in the judge’s presence, which we reject.Amicus presses the urgency of the situation the district judge faced, which he says justified summary punishment. We note that this argument assumes that the contempt occurred in the judge’s presence, which we reject. But underlying the argument is the idea that increased urgency attenuates the necessity of actual presence.
In short, urgency, while required to invoke summary contempt power, is not sufficient to justify its exercise. There must be a nexus between the urgency of the situation and the need for immediate punishment.
Here, the need to preserve the court’s security and the need to punish Trudeau summarily were not closely linked. A finding, by itself, that the court’s security procedures were implicated does not amount to a finding that there was a “compelling reason” to immediately punish Trudeau. The urgency required for summary disposition is not merely that the conduct itself created an emergency but that the need to punish the conduct was so urgent that procedural safeguards should be disregarded.
The record in this case is devoid of any suggestion that Trudeau’s summary punishment was necessary to restore the court’s ability to resume its duties.
This is not to say that there should be no consequence for Trudeau’s actions, only that absent a compelling reason for summary disposition, Trudeau is entitled to the normal array of procedures under Rule 42(a). Because there was no compelling reason for the summary disposition and the conduct did not occur in the court’s presence, Trudeau’s contempt case did not warrant summary disposition. Therefore, the “exclusive remedy” for Trudeau’s conduct is found in Rule 42(a).”
FTC v. Trudeau, 579 F.3d 754 (7th Cir. 2009)
No, Kay.
Because ordering a BJ or for someone to give them a car is an ILLEGAL order. A judge’s powers aren’t arbitrary. They cannot order you to do something unrelated to a case before them nor can they order you to do them what amounts to a personal favor like a blow job or any other kind of gift.
And the Federal courts most certainly do prosecute civil contempt under the mechanisms of Rule 42(b), your ignorance, denial and opinion notwithstanding. I’ve already provided ample evidence that that is exactly what they do. That you’re incompetent to understand this because you have a delusional belief that no matter what the law actually says or how the process works it must comply to what you want.
You are willing to twist and misapply anything you can get your hands on to justify your weak and factually incorrect rationalizations in furtherance of your delusional psychological denial that you didn’t screw yourself over when all the facts say that clearly you screwed yourself over. To actual lawyers, the gibberish you spout is the equivalent of a child screaming “The sky is plaid because I said so!” The sky is not plaid, Kay. And the law is not as you say it is. End of story.
You’re insane, Kay. Crazy like a soup sandwich. There is something wrong in your head. Seek professional mental health care.
Kay, get help. As BIL said, you are not in contact with reality. You come to a legal blog and lecture lawyers who actually have legal training on what you think the law is. You have been shown where you are wrong, repeatedly. You obviously are only in tenuous contact with reality. You can walk and talk, and not make messes in the house, but that seems to be about it. Reality is not what you want it to be, Kay. Reality is something quite different than what you are trying to make it. Copy and paste all the stuff you want, but do not expect anyone to be impressed.
You are NOT going to get the legal advice you seek here. The lawyers here have given you information on why you are wrong and what the law actually says. You reject it all. Hire a lawyer of your own and stop expecting free legal consultation. And get help. Look in the phone book under mental health clinics.
“Rule 42(b) recognizes the power of the court to take summary action against “a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies.” In re Troutt, 460 F.3d 887 (7th Cir. 08/21/2006)