Prosecutors Get a Mulligan, Wrongfully Convicted Man Gets Squat

The following opinion was published in The Atlantic on March 30, 2011.

By Andrew Cohen

United States Supreme Court Justice Clarence Thomas wrote his first majority opinion of the Term Tuesday and, naturally enough, it was a 5-4 decision against the interests of a criminal defendant whose constitutional rights had been dramatically violated by prosecutors. To mark the occasion, Justice Ruth Bader Ginsburg read her dissent aloud in court (also a first for the Term) and Justice Antonin Scalia, Justice Ginsburg's well-chronicled BFF, took a few shots at her in an otherwise needless concurrence joined by Justice Samuel Alito.

All of this, mind you, occurred before the justices heard oral argument in Walmart v. Dukes, the massive class-action case which garnered sweeping attention at the courthouse Tuesday morning. No wonder the justices seemed so grumpy when the plaintiffs' lawyers started making their discrimination case (or maybe it was just the traffic ticket Justice Scalia's got coming in for work Tuesday morning). And no wonder the Court's striking ruling in Connick v. Thompson was left largely underreported.

Still, it's not every day that the Court so brazenly overrules a jury verdict in the name of protecting state prosecutors (and the political entities which employ them) from the consequences of sustained official misconduct. And it's been quite some time since the Court's conservative majority reached out in such a fashion to snatch form from the jaws of substance. In these circumstances, it's no surprise that Justice Ginsburg blew her stack or that Justices Thomas, Scalia and Alito reacted so defensively to her objections.

Here's the story. Convicted of murder, and on Louisiana's death row for 14 years, John Thompson was just one month away from being executed when defense investigators discovered exculpatory evidence that prosecutors had failed to share with Thompson's lawyers in the two cases (one for armed robbery, one for murder) which led him to death row. The evidence hidden by the state were blood samples -- not from Thompson's blood -- found at the scene of the robbery.

Confronted with the new evidence, an appeals court quickly reversed both of Thompson's convictions. Undaunted, prosecutors tried Thompson again for murder. This time, Thompson was acquitted. He then sued the district attorneys. Thompson alleged that prosecutors had intentionally caused him to be wrongfully imprisoned for a total of 18 years. He argued that the DA's office unconstitutionally handled exculpatory evidence -- or at least that lead prosecutors inadequately trained their office staff to handle such evidence.

Prosecutors conceded before Thompson's civil trial that they had violated the Brady rule, the constitutional standard designed to ensure that government officials don't hide exculpatory evidence in criminal cases. But they argued that it was an isolated incident and thus could not generate a viable damage award. The jury disagreed. It awarded Thompson $14 million -- one million for each year the man had wrongly spent on death row, you could say. The district attorney, Harry F. Connick (yes, the famous singer's father) appealed.

Justice Thomas and the Court's four other conservative justices bent over backward Tuesday to help him out. They overturned the jury's verdict, and the trial judge's ruling, and declared that one Brady violation alone was not enough proof to establish a viable claim against the government. It wasn't the District Attorney's fault for failing to teach prosecutors about the contours of the Brady rule, Justice Thomas justified, because individual attorneys have their own ethical obligations and should have known better themselves. He wrote:

The District Court should have granted Connick judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would "establish that the 'policy of inaction' [was] the functional equivalent of a decision by the city itself to violate the Constitution." (citations omitted)

You got that? Thompson failed because he did not sufficiently show that his prosecutors had similarly ruined the lives of other criminal defendants. And just because prosecutors admitted that they had "violated the Constitution" under Brady didn't mean they had "violated the Constitution" for purposes of a civil lawsuit. Under this warped rationale, the law's obligations to Thompson essentially ended when the appeals courts reversed his convictions. The 18 years of wrongful imprisonment? Not our problem, Justice Thomas wrote:

The role of a prosecutor is to see that justice is done. "It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." By their own admission, the prosecutors who tried Thompson's armed robbery case failed to carry out that responsibility. But the only issue before us is whether Connick, as the policymaker for the district attorney's office, was deliberately indifferent to the need to train the attorneys under his authority.

In dissent, Justice Ginsburg tore into this reasoning. She wrote:

The Court holds that the Orleans Parish District Attorney's Office... cannot be held liable... for the grave injustice Thompson suffered. That is so, the Court tells us, because Thompson has shown only an aberrant Brady violation, not a routine practice of giving short shrift to Brady's requirements. The evidence presented to the jury that awarded compensation to Thompson, however, points distinctly away from the Court's assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.

From the top down, the evidence showed, members of the District Attorney's Office, including the District Attorney himself, misperceived Brady's compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors' conduct relating to Thompson's trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney's Office.

What happened here, the Court's opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney's Office bears responsibility under §1983." (citations omitted)

Prosecutors clearly cheated, Justice Ginsburg reasoned, and Thompson paid a terrible price for such cheating. As the jury had duly concluded, Louisiana should have been required to compensate him for his trouble. The Court's three other liberal members -- Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan agreed. But Justice Scalia was unwilling to let his pal Ginsburg's dissent go unanswered (beyond that which Justice Thomas had already answered it, in depth, in footnote 5 of the majority opinion). Justice Scalia wrote:

The dissent's lengthy excavation of the trial record is a puzzling exertion. The question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors, even though no pattern or practice of prior violations put the municipality on notice of a need for specific training that would have prevented it. The dissent defers consideration of this question until page 23 of its opinion.

It first devotes considerable space to allegations that Connick's prosecutors misunderstood Brady when asked about it at trial, and to supposed gaps in the Brady guidance provided by Connick's office to prosecutors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual published by Connick's office three years after Thompson's trial. None of that is relevant. Thompson's failure-to-train theory at trial was not based on a pervasive culture of indifference to Brady, but rather on the inevitability of mistakes over enough iterations of criminal trials. (citations omitted)

This, indeed, was a bitterly-fought case. And it's ultimately a decision from the Court's majority that reveals outright hostility to the rights of the wrongfully convicted to adequately redress their conceded grievances. You would think such redress would be the least the law could do for men like Thompson.