One thing I've found in doing appeals is that defense lawyers aren't really bothered by an allegation that they rendered ineffective assistance at trial. I've even had lawyers tell me how they might have screwed something up. I've never had one ask me not to make an IAC claim, or be upset with me because I did.
On the other hand, I've found that prosecutors get really, really pissed if you claim they engaged in prosecutorial misconduct. Which is interesting in light of the juxtaposition of two stories from yesterday.
The first was Wednesday's oral argument in the Supreme Court in Connick v. Thompson. Thompson was charged with an armed robbery and a capital murder back in 1984 in New Orleans. The prosecutors chose to try the robbery case first, hoping that a conviction would keep Thompson from testifying in his murder trial. The strategy worked: Thompson was convicted of the robbery, didn't testify at his murder trial, and was convicted and sentenced to death. Thompson spent 18 years on death row before his attorneys discovered that the prosecution hadn't turned over blood tests which showed Thompson hadn't committed the robbery. That, and numerous other pieces of exculpatory evidence that hadn't been disclosed, led to a new trial in the murder case, and a jury spent only 35 minutes deliberating before acquitting Thompson. He sued the DA's office, and a jury awarded him $14 million.
Thompson's main hurdle in holding the DA's office liable was a 1978 decision limiting the liability of governmental entities in Section 1983 suits: the plaintiff could not rely on respondeat superior, but had to show that the injury resulted from a "custom or policy" of the entity. Obviously, the DA's office didn't have a custom or policy of withholding Brady materials, so Thompson had to rely on the argument that the office had failed to properly train its prosecutors. But in a 1987 decision, the Court had limited that theory to cases in which the plaintiff could show "deliberate indifference": either prior violations should have alerted the policymaker to a training problem, or the case involved a single incident, but stemmed from a situation where the need for training was so obvious that constitutional violations would be inevitable.
And that's where Thompson's lawyer ran into problems. The 1987 case had involved a failure to train police officers in the standards for using deadly force. Obviously, policemen are going to be required to use deadly force, so one can easily foresee that not training them in how and when to do that is going to cause problems. But what would you tell a prosecutor about his duty to comply with Brady? That was the exact question posed by Alito, and the problem was compounded by the nature of the violation here: the prosecutor did not know that the blood test exonerated Thompson, he simply didn't bother handing it over to the defense. Brady doesn't have a mens rea requirement; a violation doesn't have to be wilful.
From the tone of the questioning -- even Sotomayor, a presumed liberal but a former prosecutor, jumped onto the "what is the exact training that was required in this situation" bandwagon -- I won't be surprised if Thompson gets reversed. Which brings us to Story #2, an article from the National Law Journal:
Only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period, according to a report released Monday.
The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.
Among the 707 cases, only six prosecutors -- 0.8% -- were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors.
That's not surprising. Earlier this year, in a case I discussed here, the Supreme Court considered a case where a prosecutor had withheld evidence in a child rape case. The disciplinary board found a violation (the professional code also requires a prosecutor to disclose exculpatory evidence) and recommended a 12-month suspension, with six stayed; the Supreme Court decided there was no violation at all and dismissed the case.
That's not to suggest that prosecutorial misconduct is prevalent. I've had only a few cases in my career in which I found out a prosecutor withheld evidence. (Of course, the phrase "I found out" is significant there.) I mentioned yesterday that the Innocence Project found that snitches had played a key role in almost 20% of wrongful convictions; the figures on prosecutorial misconduct is much lower, somewhere around 5%.
But my guess is that the decision in Thompson isn't going to push that figure any lower.