Supreme Court Revisits Prosecutorial Misconduct

Supreme Court to take another look at prosecutorial misconduct
The Washington Post by Robert Barnes  -  October 30, 2011

Prosecutors, says Angela Davis, former head of the D.C. public defenders office, “are the most powerful officials in our criminal justice system.”  Davis, a professor at American University’s Washington College of Law, explains:  “They decide whether a person’s going to be charged, what to charge them with, whether there’s going to be a plea bargain and what the plea bargain will be. As they make those decisions, they exercise almost boundless discretion.”  That combination of power and discretion, she said, “can and has led to abuse.”  It’s an issue of perpetual interest at the Supreme Court. Next week, the court will hear a case in which a Louisiana death row inmate alleges that prosecutors withheld information that would have cast doubt on the eyewitness account that led to his conviction.  The case from New Orleans concerns prosecutors who worked for former district attorney Harry Connick Sr., who left office in 2003.  If that sounds familiar, it is because Connick and his office were at the center of last term’s big decision about prosecutorial misconduct. In that controversial 5-to-4 decision, the court stripped a $14 million award from John Thompson, who spent 14 years on death row after prosecutors withheld evidence that showed his innocence.

The court has long agreed that individual prosecutors should be protected from civil liability so that they may freely pursue criminals. However, Thompson had convinced a jury that Connick’s office should be held accountable for not properly training staff about the duty prosecutors have to turn over evidence favorable to the defense.  But Justice Clarence Thomas, joined by the court’s other conservatives, said Thompson did not meet the high standard of showing a pattern of “deliberate indifference” on Connick’s part.  Justice Ruth Bader Ginsburg, on behalf of the court’s liberals, read her dissent from the bench, saying she would have upheld the award against Connick’s office for the “gross, deliberately indifferent and long-continuing violation of (Thompson’s) fair trial right.”  Barry Scheck, co-director of the Innocence Project, said the court’s decision in Connick v. Thompson made it clear that civil remedies are not a viable option for those trying to stop prosecutorial misconduct.  He, Thompson and others were part of a group of “innocence advocates” who last week proposed a national dialogue with prosecutors to try to find other ways to investigate and sanction prosecutors who break the rules.  Santa Clara University law professor Kathleen Ridolfi said the group needs to find a way around “a system where the Supreme Court refuses to hold prosecutors accountable, even for repeated, deliberate misconduct.”

The new case, Smith v. Cain , is not about punishing prosecutors. It is about whether withholding evidence should mean a new trial for Juan Smith, who prosecutors said was involved in a gangland-style shooting that left five dead. Prosecutors have an obligation under a nearly 50-year-old Supreme Court precedent in Brady v. Maryland to turn over any evidence material to a defendant’s guilt or punishment.  The case is expected to be determined by its specific facts rather than the potential for a new examination of Brady. It also seems not coincidental that it involves New Orleans prosecutors.  Smith’s lawyers point out that courts have overturned four death sentences from Orleans Parish because of violations of the Brady rules, and they say eight other non-capital cases have met the same fate.  The American Bar Association has asked the court to use the case to tell prosecutors that they have a greater obligation than simply meeting Brady requirements. The ABA says the court should mandate that prosecutors abide by ABA model rules that call for disclosure of any exculpatory evidence, whether it is determined to be material or not.  The National District Attorneys Association replied that the ABA is nothing but a private association of lawyers that consistently takes the side of criminal defendants. The regulation of prosecutors, it says, “is appropriately left to the individual states.”  Such sensitivity is why Scheck and others at a news conference last week took pains to say they believe only a small slice of prosecutors have committed misconduct. He said he was generally advised, “ ‘Don’t go around the country pillorying prosecutors and giving the impression that what happened in John Thompson’s case is happening across the board in an epidemic.’ ”  He added: “ We’re not saying that.”

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Supreme Court rules against exonerated death row inmate who sued prosecutors
The Washington Post by Robert Barnes  -  March 29, 2011

An ideologically divided Supreme Court on Tuesday stripped a $14 million award from a wrongfully convicted man who had spent 14 years on death row and successfully sued New Orleans prosecutors for misconduct.  Conservative justices prevailed in the 5 to 4 ruling, which shielded the district attorney’s office from liability for not turning over evidence that showed John Thompson’s innocence.  Justice Clarence Thomas said Thompson could not show a pattern of “deliberate indifference” on the part of former district attorney Harry Connick Sr. in training his staff to turn over evidence to the defense team.  It was the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench.  “I would uphold the jury’s verdict awarding damages to Thompson for the gross, deliberately indifferent and long-continuing violation of his fair trial right,” she said, adding that she was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.  She said the actions of prosecutors under the control of Connick, who left office in 2003 and is the father of the famous singer of the same name, “dishonored” the obligation to turn over evidence favorable to the accused established in Brady v. Maryland nearly 50 years ago.  But the court has protected prosecutors from civil liability when they take cases to court to allow them to go about their work without fear of being sued. The question for the justices was whether a chief prosecutor could be sued for not ensuring that those who worked for him were properly trained and followed the law.  There is no dispute that one of Connick’s prosecutors did not turn over a blood test that would have shown Thompson innocent of one of the charges against him. But Thomas said that a single incident is not enough to prove liability for the district attorney’s office and that Thompson did not show a pattern of similar violations.  Lawyers are trained and ethically bound to honor Brady, Thomas wrote, regardless of whether additional training is provided. “A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations,” Thomas said.  The court’s decision marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence.  Thompson was convicted of armed robbery in 1985, before he stood trial for the murder of Raymond Liuzza, the son of a prominent New Orleans hotel owner. Prosecutors used the armed robbery conviction as a way to coerce Thompson not to take the stand in his own defense, and, after conviction, to secure the death penalty.  A pair of lawyers at a large Philadelphia law firm took up his case to spare him death; at one point, Thompson came within weeks of execution.  But in 1999, an investigator discovered that a blood test conducted in the armed robbery case showed that Thompson was not the perpetrator. Prosecutors acknowledged that it was withheld from Thompson’s attorneys.  The armed robbery charge was dismissed. A new trial in the murder case introduced new evidence and resulted in a verdict of not guilty. Thompson then sued the district attorney’s office, and a jury awarded him $14 million. In all, he was imprisoned for 18 years, 14 of them in isolation on death row.  Thompson returned to New Orleans, where he runs an organization to help exonerated inmates and travels frequently to speak about wrongful convictions.  Thomas was joined in his opinion by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr. Scalia and Alito wrote separately to emphasize their position that additional instruction from the district attorney would not have changed Thompson’s case.  It “was almost certainly caused not by a failure to give prosecutors specific training but by [a] miscreant prosecutor” determined to railroad Thompson, Scalia wrote.  But Ginsburg said there were other instances of prosecutors withholding evidence, such as a police report’s description of the shooter in the Liuzza killing that did not match Thompson.  “Ample evidence presented at the civil rights trial demonstrated that Connick’s deliberately indifferent attitude created a tinderbox in which Brady violations were nigh inevitable,” she wrote.  Thompson attorneys J. Gordon Cooney Jr. and Michael Banks said in a statement that the evidence showed “multiple constitutional violations by multiple prosecutors.”  “If prosecutors’ offices cannot be held accountable under the facts of this case, it is difficult to imagine when they would be accountable,” they said.  The case is Connick v. Thompson.