The government always wins when justice is done. That’s what prosecutors often say when they lose a jury verdict. By that standard, the government lost big last week when the Supreme Court blinked at an evident injustice by giving the New Orleans district attorney’s office a pass for constitutional violations that put an innocent man on the state’s death row for 14 years.
John Thompson was, in fact, within hours of his scheduled execution in April 1999 before courts intervened to begin unwinding the tangle of belatedly acknowledged prosecutorial misconduct that led to tainted convictions for attempted armed robbery and capital murder in 1985.
Freed from prison in 2003, Thompson sued the Orleans Parish District Attorney’s Office, including the former district attorney Harry Connick, for withholding the evidence that eventually cleared him. The withholding plainly violated a clear Supreme Court precedent, Brady v. Maryland, a 1963 decision as basic to prosecutors as Miranda is to police.
A federal court jury awarded Thompson $14 million. The district court judge and the Fifth U.S. Circuit Court of Appeals both found that Thompson had shown that Connick’s office had been “deliberately indifferent” to defendants’ rights. That is the strict standard the high court had previously established for holding local governments liable in federal civil rights suits.
In a 5-4 decision, the Supreme Court on March 29 threw out that verdict and ordered judgment in Connick’s favor by focusing solely on the concealment of one piece of evidence in the robbery case against Thompson. A single Brady violation, Justice Clarence Thomas wrote for the majority in Connick v. Thompson, was not enough to show a “pattern or practice” of deliberate indifference.
Thomas and the other conservatives in the majority turned a blind eye to the evidence of other prosecutorial misconduct not only in Thompson’s case but also in others. As Justice Ruth Bader Ginsburg explained in a bitter dissent, the “grave injustice” that Thompson suffered resulted from a “cavalier” attitude toward defendants’ rights that appeared to be “standard operating procedure” in the prosecutor’s office.
Similar violations are all the more likely, she suggested, because of the court’s failure to require better training and monitoring of prosecutors in order for local governments to avoid liability for rights violations. And although Ginsburg did not make the point Thompson’s wrongful convictions means that the actual killer in a high-profile murder has gone scot-free.
Thompson had initially been charged with the shooting death of the son of a prominent New Orleans businessman outside his home in December 1984. The case was weak from the outset. He had been implicated by a reward-seeking informant. When Thompson was arrested, prosecutors could plainly see that he did not match the description given by the sole eyewitness to the slaying.
Nevertheless, Connick, father of the same-named actor/singer, thought they had their man and clearly wanted a conviction. He appointed his third-in-command to head a team of three younger prosecutors to handle the case. They got a break of sorts when the victim of an unrelated robbery identified Thompson from his picture published in the newspaper. A swatch of cloth from the pants worn by one of the victims, stained with the perpetrator’s blood, was sent to the New Orleans crime lab for analysis.
Prosecutors decided to try Thompson first in the robbery case, evidently hoping that a conviction would deter him from testifying in a later murder trial as, in fact, actually occurred. In the robbery case, Thompson’s attorney asked for what Brady requires: disclosure of any exculpatory evidence. The prosecutors not only failed to mention the blood evidence, but actually removed the swatch from the evidence room before the defense attorney’s inspection. Today, it is lost. But the lab report, found by investigators 14 years later, shows that the blood did not match Thompson’s blood type.
After the attempted robbery conviction, prosecutors continued a policy of concealment in the murder trial. The informant’s tape-recorded conversation was never disclosed, nor the eyewitness’s unmatching description of the assailant. Without that information, Thompson’s attorney was effectively prevented from impeaching their testimony.
In the later federal civil rights suit, Thompson introduced evidence from former prosecutors that the disregard for Brady in his case was as Ginsburg put it “neither isolated nor atypical.” Indeed, state appellate courts had reversed four convictions from Connick’s office for Brady violations in the decade before Thompson’s trial. The former assistants testified to either minimal or non-existent training about Brady. Connick clearly signaled, they said, that when in doubt evidence should be withheld rather than disclosed.
The discovery of the Brady violation in the robbery case forced the reversal of that conviction. The state appellate court reversed the murder conviction as well, reasoning that the tainted robbery conviction had prevented him from testifying. In a retrial, he was acquitted.
In this sorry episode, the Supreme Court’s majority discerns only a single injustice, not the “pervasive” disregard of prosecutors’ obligations seen by Ginsburg and the other three liberal dissenters. The court has already given individual prosecutors virtually absolute immunity for rights violations during trials. With this ruling, those responsible for guarding against prosecutorial misconduct are largely protected from legal liability as well.