Private: No More Disincentives for Prosecutorial Misconduct

The vast majority of prosecutions fall into the “honest and moral” category. Such conscientious self-policing was often not the case, however, in the District Attorney’s Office in Orleans Parish, La., run for almost 30 years by District Attorney Harry Connick, Sr. A disturbing number of convictions secured by Connick’s lawyers have been reversed due to the failure of his prosecutors to provide exculpatory evidence to defense lawyers as required by the Constitution and the 1962 Supreme Court case of Brady v. Maryland.  (Four published opinions cite Brady violations on Connick’s watch between 1974 and 1988, an astonishing number when one considers how rarely judges embarrass prosecutors in writing.)  And revelations of additional cases from the 1980s continue to surface today.

This leads us to John Thompson – arrested in 1985 at age 22 and charged with murder and an unrelated armed robbery. He was convicted of both crimes and sentenced to death. In 1999, with his appeals exhausted and only weeks before his execution, his lawyers unearthed a blood test, conducted by Assistant DAs before his trials but never disclosed to the defense. The blood test proved Thompson’s innocence in the armed robbery; subsequent investigation revealed a number of material witnesses to the murder known to prosecutors and never disclosed to the defense. Thompson secured a retrial in 2003, and was rapidly acquitted. He was released in 2003 after 18 years of unjust imprisonment, 14 of them on Death Row.

How did this happen? The Orleans Parish DA’s Office admits that Brady was violated in Thompson’s case, but Connick claims that he couldn’t oversee every case in his office and says that everyone knew they needed to follow Brady. Former Assistant DAs Eric Dubelier and Jim Williams, who ran Thompson’s trials, likewise claim that they had no idea of the evidentiary manipulation, deciding that they would rather be lawyers who weren’t in control of their cases when a man’s life was at stake than be lawyers who deliberately withheld evidence that put a man on Death Row. All three men place the blame on the junior member of the team, former Assistant DA Gerry Deegan, as the sole bad actor. (Deegan, who died in the 1990s, has been unavailable for comment.)

A New Orleans federal court jury decided in 2007 that Thompson should be awarded $14 million as compensation for his lost 18 years and near execution. Their reasoning was clear: DA Connick knew about the requirements of Brady, knew that many prosecutors in his office would repeatedly face tough Brady decisions (particularly in light of the minimalist evidence-sharing policy he had imposed throughout the office) and knew that when prosecutors fail to properly turn over exculpatory evidence to defense attorneys, the direct result is that people are improperly imprisoned or executed. Under this set of facts, the legal standard of “deliberate indifference“ to Connick’s obligation to properly train his Assistant DAs was clear.

Clarence Thomas, writing for the majority, disagreed. In his view, “deliberate indifference” to a training requirement could not be found despite Connick’s awareness and persistent inaction. Thomas stated that training on the rules of Brady is unnecessary because “attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment.” Certainly the judgment exercised in Thompson’s case might suggest that at least some training was warranted.

In a separate concurrence, Justices Scalia and Alito observed that allowing the unjustly imprisoned to seek reparations from DA’s offices that had repeatedly violated Brady “would engage the federal courts in an endless exercise of second-guessing municipal employee-training programs.” Translation: Given the number of people who are wrongly imprisoned every year, we expect lots of people will sue, and judicial efficiency should trump individual liability.

The decision is not a complete tragedy; Justice Ginsburg’s blistering dissent, which details the numerous Brady violations in Thompson’s case and the complete indifference to Brady, from Connick on down, leaves the hope that at least four Justices understand the significance of what has just happened here.  And for his part, John Thompson is alive, and has started Resurrection After Exoneration, a foundation dedicated to helping exonerees reintegrate into the society that failed to protect them when they were free men the first time. This case was never about money for Thompson. He seeks something larger, grander, and more elusive. Thompson wants prosecutors to have some accountability for their actions, and for other prosecutors in similar situations to protect the innocent. Instead, five Justices have officially refused to accept legal disincentives for prosecutorial misconduct.

It took three prosecutors four months to ruin John Thompson’s life. It took fifteen years and a huge team of dedicated lawyers and staff from the law firm of Morgan, Lewis & Bockius working pro bono to right that wrong. None of the DAs involved received any official reprimand, or any sanction of any sort. The Connick majority has washed its hands of the topic; John Thompson, others like him, and the rest of us deserve better.

Constitutional Interpretation, Criminal Justice, Death Penalty, Supreme Court