Supreme Court Lets District Attorney Off The Hook
The case before the Supreme Court asked whether a man who narrowly escaped the death penalty for a murder he did not commit could sue the Orleans Parrish District Attorney for not properly training his staff on how to provide criminal defendants a fair trial. In a 5-4 decision, the Justices in late March 2011 held that John Thompson could not sue Harry Connick, Sr., whose deputies withheld exculpatory blood evidence that confirmed that Thompson was innocent.
Connick v. Johnson teaches us a number of lessons about how the Supreme Court decides cases and how the majority and dissent opinions sometimes talk past each other by emphasizing different evidence and legal principles.
To understand the ruling, a few elementary legal principles need clarification. First, thanks to a Supreme Court ruling from 1978, you cannot sue a municipality like a city or county simply because one of its employees broke the law. You have to show that a policymaker is responsible for the civil rights violation. One way to do that is by showing that a policymaker, such as the district attorney or mayor, failed to adequately train subordinates, and that this dereliction caused a foreseeable civil rights violation.
While the victim can always sue the subordinate personally under civil rights laws, lawyers in the district attorney's offices are immune from suit, one of the few public officials exempt from personal liability. The only way that Thompson could recover damages in this case was by naming the district attorney.
Thompson was certainly aggrieved and his story resembles something from fiction. He was arrested for attempted armed robbery. Somehow, the robber's blood ended up on the victim's pants. The prosecution was supposed to provide that blood evidence to Thompson's lawyers under the well-settled principle under Brady v. Maryland (1963), which holds that prosecutors must turn over any exculpatory "Brady evidence" to the defense team. Two days before trial, Assistant District Attorney Whittaker received the crime lab report that showed the robber's blood type: it wasn't Thompson's. On the first day of trial, Assistant District Attorney Deegan brushed aside the blood evidence and it never came up at trial. The jury convicted Thompson of armed robbery. Thompson certainly could have used that blood evidence to prove his innocence.
Meanwhile, Thompson had a pending murder charge. The prosecutors opted to try Thompson first on the armed robbery charge, reasoning that if the jury found him guilty of robbery, in order to prevent the jury from learning about his robbery conviction, he would elect not to testify on his own behalf at the murder trial. Had he testified, the robbery conviction would have come up on cross-examination, destroying his chances of a murder acquittal. Following his one-sided murder trial in which he could not testify on his own behalf, Thompson was convicted and sentenced to death. All of these events happened in 1985.
Fast-forward to 1999. Thompson went to jail, but his legal team was still challenging the conviction. Thompson's investigators eventually discovered the crime lab report that showed that the robber's blood type was not Thompson's. The execution was stayed and the robbery conviction thrown out. The courts then overturned the murder conviction because the Brady violation compelled Thompson not to testify in his murder trial, which meant the murder trial wasn't fair.
When the district attorney tried Thompson again for murder, he testified in his own defense (the robbery conviction could no longer haunt him) and the jury easily acquitted him. Also that year, Assistant District Attorney Riehlmann revealed that his former colleague, Deegan, had made a deathbed confession in 1994 that he had "intentionally suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated John Thompson." Riehlmann kept this information to himself as Thompson sat on death row.
This is the evidence that the Supreme Court set forth in its majority opinion, written by Clarence Thomas and joined by conservatives Anthony Kennedy, Antonin Scalia, John Roberts, and Samuel Alito—all appointed by Republicans, the last two by George W. Bush. This case reached the Court after a jury decided that District Attorney Connick was deliberately indifferent in failing to train his attorneys in their Brady obligations, awarding Thompson $14 million for the pain and suffering of being unjustly convicted of murder and spending years on death row. It was that jury finding that the Supreme Court overturned in March 2011. Justice Thomas wrote that the above evidence of a single Brady violation was not enough to show that the district attorney had failed to train his staff on its Brady obligations such that an obvious consequence would be John Thompson's unjust murder conviction. The Court anchored its reasoning on the theory that Thompson had only proven a single incident Brady violation: the failure to produce exculpatory blood evidence. Since the district attorney's assistants all went to law school and have to abide by the profession's ethics rules, Justice Thomas reasoned, "the obvious need for specific legal training…is absent here."
Four Justices dissented, revealing once again the fault lines on the Court, where the five Republican appointees outnumber the Democrats. While the majority opinion summarized the case in tidy fashion and offered straightforward reasoning, the dissenters seemed to describe a different case entirely, emphasizing the deep-rooted failure on the part of the New Orleans district attorney's office to train its lawyers on Brady obligations. Drawing from a voluminous evidentiary record from Thompson's civil rights trial against Connick (which Justice Thomas ignored or explained away as irrelevant), Justice Ginsburg pointed out:
· An eyewitness to the murder said the killer was a six-foot black male with "close cut hair." Contrary to District Attorney's Brady obligations, this information was not turned over to Thompson's lawyers. Thompson is five-foot-eight and styled his hair in a large "Afro." This evidence alone would have probably resulted in an acquittal.
· Shortly after the murder, a "witness" named Perkins approached the victim's family, which had offered a $15,000 reward for information leading to the murderer's conviction. The police tape-recorded Perkins's conversation with the victim's family in which he made it clear that he wanted money for his cooperation. Perkins identified Johnson as the killer after the family assured him that "we want to try and help you." While Perkins testified at the murder trial that he volunteered information to the police with no knowledge of the reward money, Thompson's lawyers were unable to impeach this critical witness because, contrary to its Brady obligations, the district attorney's office never provided them with the tapes of the conversation with the victim's family. In closing argument, the prosecution actually emphasized that Thompson had presented no "direct evidence" that Perkins' testimony was motivated by reward money.
· The prosecution did not turn over a contemporaneous eyewitness account of the murder that suggested that the murderer wore his hair in a style that was quite different from Thompson's. This was additional Brady evidence that the district attorney's office did not produce to Thompson's lawyers. As Justice Ginsburg wrote, "the omission left defense counsel without knowledge that the prosecutors were restyling the killer's 'close cut hair' into an 'Afro.'" Prosecutors finessed this discrepancy at trial by having a police officer testify that the killer's hair was "black and short, afro style."
Ginsburg noted, however, that "as prosecutors well knew, nothing in the withheld police reports, which described the murderer's hair simply as 'close cut,' portrayed a perpetrator with an Afro or Afro-style hair." Justice Ginsburg also summarized "abundant evidence [that] supported the jury's finding [in Thompson's civil rights trial] that additional Brady training was obviously necessary to ensure that Brady violations would not occur." This evidence included the following:
· Connick testified at Johnson's civil rights trial "that his earlier understanding of Brady, conveyed in prior sworn testimony, had been too narrow." Shockingly, he also testified that there could be no Brady violation arising from "the inadvertent conduct of an assistant under pressure with a lot of case load." Courts rarely, if ever, excuse the violation of civil rights on the basis that the wrong-doer was too busy to honor constitutional obligations.
· One assistant district attorney admitted that he never reviewed police files, relying instead on the police to flag any potential Brady information. The attorneys thus deferred to the police about the criminal defendants' entitlement to relevant information. Of course the district attorney's office should engage in independent analysis in handling evidence.
· Another assistant incorrectly testified that Brady material did not include documents that could be used to impeach a prosecution witness "to show that he's lying." This misunderstanding of Brady would allow the prosecution to put on witnesses whose reliability cannot be impeached by the defendant's attorneys, thereby destroying the adversarial nature of criminal trials necessary to ensure that the jury is able to arrive at a truthful verdict.
· While police reports said that the murderer had "close-cut hair," a prosecutor testified that the office was not required to turn them over because newspaper articles suggested that witness descriptions were inconsistent with Thompson's appearance and that therefore Thompson already "had everything."
· Connick himself conceded that his office's Brady training was inadequate, as shown by his admission that his office gave new attorneys no Brady guidance and had installed no procedures to monitor Brady compliance. While Connick relied on supervisors to train their young attorneys, he did not ensure whether the supervisors understood the importance of teaching new lawyers about Brady. One attorney in the office testified that he could not "recall that [he] was ever trained or instructed by anybody about [his] Brady obligations."
· While some young attorneys in his office asked him about Brady from time to time, Connick conceded that he had "stopped reading law books…and looking at [court] opinions" when he became district attorney in 1974. For this reason, Thompson's expert witness testified that Connick's supervision as to Brady was "the blind leading the blind." This expert witness was eminently qualified, having authored the authoritative guide on prosecutorial misconduct used by the prestigious federal defender program. He further testified that the evidence showed "complete errors…as to what Brady required prosecutors to do."
· A survey of attorneys in Connick's office showed that more than half believed they had received inadequate training to do their jobs. The office policy manual at the time gave a cursory summary of the district attorney's Brady obligations, and "this slim instruction, the jury learned, was notably inaccurate, incomplete and dated." No surprise, then, that over the course of 10 years, courts had overturned four convictions because of Brady violations.
All this evidence was relevant to Thompson's civil rights case against the district attorney. In Thompson's civil case, the judge told the jury that it could consider all evidence presented at trial, not just the blood evidence, in determining whether the district attorney provided his assistants adequate training. In light of this evidence, the dissenters were astounded that the majority Justices found that Thompson had not shown that Connick was deliberately indifferent to properly training his attorneys about their Brady obligations.
Justice Ginsburg wrote, "had Brady's importance been brought home to prosecutors, surely at least one of the four officers who knew of the swatch and lab report would have revealed their existence to defense counsel and the court." Yet, while Ginsburg's dissent established that "no fewer than five prosecutors" were responsible for Thompson's wrongful conviction, the majority made it appear as if a single rogue prosecutor was responsible, and only because of the blood evidence.
In throwing out the civil rights verdict in Thompson's favor, the majority strained to explain away Connick's cavalier approach to Brady. While Justice Thomas noted that four criminal convictions were overturned because of Connick's Brady violations in the ten years prior to Thompson's conviction, he wrote that "these four reversals could not have put Connick on notice that the office's Brady training was inadequate with respect to the sort of Brady violation at issue here. None of these cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind." This reasoning places the focus on Connick's training as to the precise circumstances that led to Thompson's unjust conviction, and not Connick's broader obligation to comply with Brady in general. This is how judges explain away contrary evidence in pursuit of the results they wish to achieve.
Justice Thomas also suggested that the district attorney cannot be deliberately indifferent to Brady training because his assistant district attorneys all graduated from law school and are required to take continuing legal education classes (CLE) post-graduation. But, as Justice Ginsburg noted, lawyers in Louisiana were not required to take CLE classes at the time, and one lawyer in that office testified that his criminal procedure class in law school did not even cover Brady. Criminal procedure is not a required course in some law schools, and even if it were, court decisions are routinely handed down that further interpret and refine the Supreme Court's Brady precedent.
The majority in this case went out of its way to reject Johnson's claim, even after a jury ruled in his favor and the Court of Appeals twice upheld the verdict. Justice Thomas stated that this case lacked merit because, in 1989, the Supreme Court suggested in a footnote what a hypothetical "deliberate indifference" case would look like: "arming a city police force without training them about the use of deadly force." But there is no basis for the Supreme Court to limit a civil rights entitlement to a narrow set of facts, and the majority's emphasis in Johnson's case about the assistant district attorneys' independent Brady knowledge would seem to foreclose any further claims against a district attorney's office on a failure to train theory.
When a jury hears all the evidence and renders a verdict, appellate courts presume that the jury got it right unless the trial judge committed a serious error at trial. Verdicts are rarely overturned on this basis. When the Supreme Court does so (after the Court of Appeals upholds the verdict), it's because the Court wants to take the law in a different direction. In this instance, any fair reading of Justice Ginsburg's comprehensive dissenting opinion suggests that the majority ignored her scathing attack on Connick's Brady training because it wants to make it more difficult for civil rights victims to prevail against municipalities, particularly in failure-to-train cases.
For Thompson, this new direction is heartbreaking: the 5-4 decision throwing out his verdict erases the $14 million award for his wrongful conviction and death row anxiety. A prosecutorial failure of monumental proportions goes unremedied.
Stephen Bergstein is a civil rights lawyer in New York. He blogs on civil rights cases at www.secondcircuitcivilrights.blogspot.com.