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Connick v. Thompson

It's fun to play the game, "What would I do with $14 million?"  Nice big house, nice new cars, vacations to exotic places, don't have to work any more...  You can also play the game, "What would I do for $14 million."  Lot of possible answers to that one, too, although I'm guessing that one of them isn't "spend fourteen years on death row and come within a couple of weeks of being executed for a crime I didn't commit, because prosecutors didn't turn over evidence to my attorneys."

That was John Thompson's answer to the latter question.  As a result of that, a Louisiana jury gave him $14 million.  And last week, in Connick v. Thompson, the Supreme Court took it away.

Thompson had been charged with capital murder, and the victims of an unrelated robbery saw his picture in a newspaper and fingered him for that as well.  The state decided to try the robbery case first, for strategic advantage:  if it got a conviction, it could be used against Thompson if he testified at the murder trial, and it could also be used to buttress their argument that death was an appropriate penalty.  A swatch of the victims' pants, stained with the robber's blood, was sent out for analysis, and a week before trial it came back, showing that the robber had blood type B.  Nobody told the defense about it, and Thompson was tried and convicted.  As the prosecution anticipated, he didn't take the stand in his capital case, and was convicted and sentenced to death for that. 

Two weeks before Thompson was to be executed, a defense investigator found the report in the crime laboratory's files.  Thompson was tested and found to be Type O.  His robbery conviction was vacated, and the Louisiana court reversed his murder conviction, concluding that he'd been unconstitutionally deprived of his right to testify at the murder trial.  Thompson testified at his retrial, and was acquitted after the jury deliberated for a mere 35 minutes.  He sued, and a jury found the district attorney's office liable for failing to properly train the prosecutors who had handled the case.

Normally, an employer is liable for the torts committed by his employees simply by virtue of the employment relationship, but that's not true in civil rights cases.  The Court didn't want a city to pay out any time some rogue cop decided to use a suspect as a punching bag, so it established the rule that a plaintiff must show that the employee acted pursuant to official municipal policy.

That's not quite as harsh as it sounds; if the practices at issue are so persistent and widespread, they may constitute a policy.  (For example, if police beatings of suspects are routinely condoned.)  There's one other exception:  if the municipality's failure to train its employees in a particular area amounted to "deliberate indifference" to the constitutional rights of citizens, it can be held liable. 

The failure to train theory is what Thompson hung his hat on, but the majority wasn't buying, for two basic reasons.  The deliberate indifference theory generally requires a pattern of violations, which puts the municipality on notice that its training is insufficient.  Here, though, the majority found only the single Brady violation, and seemed rather dismissive of it; the opinion took pains to note that Connick had conceded the Brady violation and thus "that question is not presented here, and we do not address it," and that there was no indication the prosecutors actually knew Thompson's blood type.  Scalia's concurring opinion goes even farther, stating that there "was probably no Brady violation at all."

  The Court had previously hypothesized that there can be situations where a single violation would be sufficient.   Police department know that their officers are equipped with deadly weapons and that they will be called upon to use those weapons.  There's no reason to believe that police recruits are familiar with the constitutional restraints on use of deadly force, and training is the only way for them to acquire that knowledge.  Failure to train under those circumstances could establish the "deliberate indifference" necessary to impose liability, even for a single incident.

But that's not true for lawyers, the Court concludes:  general legal education, the "on-the-job training" provided by working on trials with more experienced prosecutors, and the ethical rules ensure that prosecutors have sufficient understanding of the Brady requirements without any specialized training. 

The validity of this is open to question.  Justice Ginsberg, writing for the four dissenters (the Usual Suspects dissented, and the Usual Suspects, plus Kennedy, were in the majority), pointed out that the prosecutors who handled Thompson's case allowed them to rely on the police to flag potential Brady information, rather than reviewing the reports themselves, and didn't require disclosure of impeachment materials.  Connick acknowledged that the office gave prosecutors no Brady guidance, and had no procedures to monitor compliance.  He also conceded that the high turnover made it impractical to rely on the more experienced prosecutors to provide guidance:  the two top supervisors in his office, both of whom were involved in Thompson's prosecutions, had been out of law school less than five years.

More disturbing, Ginsberg's dissent indicates the prosecutors' conduct was a good bit more malevolent than hinted at by the majority.  The swatch was checked out of the property room by the prosecutors the day after the defense had filed a motion to inspect all physical evidence, and wasn't checked back in until the day before trial.  No one told the defense about the swatch, and it wasn't returned to the property room after the trial.  (It's never been found.)  The prosecutor who checked it out and didn't return it learned he was terminally ill nine years after Thompson's convictions, and confessed to another prosecutor that he had suppressed blood evidence in a robbery case; the friend kept the confession to himself.  Moreover, the prosecutors also failed to disclose numerous other items, including a police report of the murder which contained a description of the assailant as having a shaved head, when Thompson had a large Afro.

As I'd mentioned when I'd discussed the oral argument in Connick, prosecutorial misconduct rarely results in disciplinary actions -- a California study found that of the 707 cases in which courts explicitly determined that prosecutors had committed misconduct, only six were disciplined.  In light of Connick's holding, the possibility of subjecting a prosecutor's office to financial penalty for misconduct seems to have been foreclosed as well.

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