Constitutional Law, Criminal law, Supreme Court, Torts

CONNICK V. THOMPSON AND PROSECUTORIAL IMPUNITY

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.

405 thoughts on “CONNICK V. THOMPSON AND PROSECUTORIAL IMPUNITY”

  2. Do you want to go to the subject of the responsibility to supervise prosecutors?

    I think that the parent organization is responsible when the conduct represents the informal policy of the organization. The Supreme Court ruled on that in Monell
    v. Department of Soc. Svcs., 436 U.S. 658 (1978)

    “2. Local governing bodies (and local officials sued in their official capacities) can, therefore, be sued directly under § 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other § 1983 “person,” may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such custom has not received formal approval through the government’s official decisionmaking channels. Pp. 436 U. S. 690-691.
    3. On the other hand, the language and legislative history of § 1983 compel the conclusion that Congress did not intend a local government to be held liable solely because it employs a tortfeasor — in other words, a local government cannot be held liable under § 1983 on a respondeat superior theory.” Just quoting

  3. Gyges sez:

    I thought Sit Coms were only supposed to last 30 min.
    Maybe The Kay Show just needs a theme song to end.

    May I suggest the classic Tuxedo Junction?

    *************************************
    I have an idea for one even more appropriate. How about The Last Post? As someone once said, we all need a dream.

  4. Swarthmore,

    Left click on the video, you should get an option to “copy embed code.” That’s how I got mine to work.

  8. Goat is pretty fatty, generally, isn’t it… Had it in Jamaica years ago… I’ll go with the beef…

    re: “I go to Wyoming to shoot mine..” (I believe you, but 🙂 )

  9. Anon Nurse,

    I go to Wyoming to shoot mine, but they’re a pain to hunt. Use beef or if you’re feeling adventurous goat’s pretty close to antelope.

  10. Gyges:

    re: “Worth a try, it’s not like I’m taking away from a conversation that HASN’T been had ad nauseum.”

    Yes, to that. 🙂 Thanks for the Glenn Miller… Sorry about posting it… Wanted to see if it really worked… Wasn’t sure when you’d get back…

  11. Vid posted for Gyges. (Now if you can tell me where to get some Pronghorn Antelope for that chili of yours… 🙂 )

  16. Try using the address from the address bar… I’m not sure… (Buddha’s instructions — if I understood him correctly…)

  17. Anonymously Yours

    Actually I hardly posted anything on this blog other than under my name.

    Prosecutorial misconduct is only the beginning. In my case there was no government prosecutor. The USMS acted as lawless thugs. I don’t believe the USMS guards who created the papers thought what they were doing was legal. I think they just thought that they wouldn’t get caught and that they did it so they could get BJ’s and lap dances that they didn’t have to pay for.

  20. Anonymously Yours

    I did have a basis for jurisdiction in the other federal courts.

    In DDC I had 1.) the fact that the ABA sent a letter to former judge Nottingham asking him to suspend the summary judgment process 2.) An insurance company in Bermuda was run by a lawyer in DDC and the law firm in Colorado was billing and taking directions from the law firm in DDC in 2003-2005 before I ever filed a lawsuit in DDC.

    In Kansas I had 1.) the computer server that broadcast the articles about me was located in Kansas 2.) The newspaper that wrote and broadcast the articles about me was owned by parties in Kansas, the same parties that owned and managed the Lawrence Journal World 3.) Both the newspaper in Kansas and the newspaper in Colorado publicly claimed that parties that owned and managed the newspaper in Kansas also managed the newspaper in Colorado. 4.) The newspaper in Colorado was owned by WorldWest LLC and that is listed on the website of the secretary of state in Kansas as being owned and located in Kansas with the same address as the newspaper in Kansas where the computer server was located.

    In Minnesota I had 1.) The home office of the law firm in Colorado, Faegre & Benson, was in Minnesota. 2.) The firm’s website claimed that the Minnesota office what was the exact word controlled or managed the Colorado office 3.) The lead person that hurt me was a partner in the firm so therefore the entire partnership is liable 4.) The assistant editor of the newspaper in Colorado said that their lawyer said they could print whatever they wanted about me 5.) The law firm’s own verified attorney bills itemized discussions with the newspaper about continuing the Internet publications.

    When I sued the law firm in Minnesota they did not offer a lack of jurisdiction defense.

    There is federal long arm jurisdiction when another federal forum is not available and they made the District of Colorado not available to me because I didn’t have $100,000 to file a lawyer conducted lawsuit there and that, according to Colorado Federal Judge John Kane, is how much it costs — $100,000 just to start!

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