'Prosecutors normally have immunity for their actions while working, but Thompson convinced a jury that the district attorney's office had not trained its lawyers sufficiently on how to handle evidence. The 5th U.S. Circuit Court of Appeals was split evenly on appeal, which upheld the lower court verdict.
"They all knew what not to produce. What they didn't know was what to produce," Thompson's lawyer J. Gordon Cooney said.
But justices repeatedly questioned how much training would be enough to satisfy any new legal standard on Brady rights for prosecutors. Brady rights are named after the Supreme Court's Brady v. Maryland case, which says prosecutors violate a defendant's constitutional rights by not turning over evidence that could prove a person's innocence.
REPORTER JESSE J. HOLLAND; THE ASSOCIATED PRESS:
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"Louisiana appellate chief Stuart Duncan, arguing against liability, acknowledged that defendant John Thompson has suffered "terrible injuries" because of the actions of a lawyer in the prosecutor's office, but insisted that Supreme Court precedent does not allow Thompson to recover damages in a civil rights suit when no pattern of misconduct has been shown.
But several justices argued that by their reading of the record, at least four assistant prosecutors were aware that key blood evidence had been withheld, in violation of Brady v. Maryland, the 1963 decision that requires prosecutors to disclose exculpatory evidence to criminal defendants.
Another basis of the lawsuit is that Connick showed deliberate indifference by failing to train lawyers in the office on the importance of complying with Brady.
"It wasn't one rogue prosecutor," said Justice Ruth Bader Ginsburg, adding that there were "multiple opportunities" for the prosecution to turn over the evidence to Thompson's defense. "To shoehorn this into a single incident, it doesn't fit.""
REPORTER TONY MAURO; NATIONAL LAW JOURNAL;
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BACKGROUND TO APPEAL: The case concerning a prisoner's exoneration is Connick v. Thompson, 09-571, which arose from a $14 million jury award in favor of a former inmate who was freed after prosecutorial misconduct came to light. The former inmate, John Thompson, sued officials in the district attorney's office in New Orleans, saying they had not trained prosecutors to turn over exculpatory evidence. A prosecutor there failed to give Mr. Thompson's lawyers a report showing that blood at a crime scene was not his. Mr. Thompson spent 18 years in prison, 14 in solitary confinement. He once came within weeks of being executed.
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"WASHINGTON — The Supreme Court on Wednesday seemed skeptical of a $14 million judgment given to a former death row inmate who accused New Orleans prosecutors of withholding evidence to help convict him of murder," the Associated Press story by reporter Jesse J. Holland published earlier today begins, under the heading, "Court seems skeptical on $14 million judgment."
"John Thompson, who at one point was only weeks away from being executed, successfully sued the district attorney's office in New Orleans, arguing that former District Attorney Harry Connick showed deliberate indifference by not providing adequate training for assistant district attorneys." the story continues.
"Prosecutors normally have immunity for their actions while working, but Thompson convinced a jury that the district attorney's office had not trained its lawyers sufficiently on how to handle evidence. The 5th U.S. Circuit Court of Appeals was split evenly on appeal, which upheld the lower court verdict.
"They all knew what not to produce. What they didn't know was what to produce," Thompson's lawyer J. Gordon Cooney said.
But justices repeatedly questioned how much training would be enough to satisfy any new legal standard on Brady rights for prosecutors. Brady rights are named after the Supreme Court's Brady v. Maryland case, which says prosecutors violate a defendant's constitutional rights by not turning over evidence that could prove a person's innocence.
"I mean, is an hour a year enough? Is an hour a month enough?" Justice Elena Kagan said.
And if the court rules that prosecutors have to train on Brady, what about other issues like using improper statements in closing arguments, Chief Justice John Roberts said. "You know that that can happen, just as you know there can be Brady violations. So they need training in exactly what they can say and can't say in closing arguments," Roberts said.
Added Justice Anthony Kennedy: "And Miranda, and proper supervision of affidavits in support of search warrants, and proper instructions that tell the police not to exceed the scope of the warrant. So our course is expanding."
The concern is "that you don't want to have to give the prosecutors a clinical law school course before you let them do their job," Justice Ruth Bader Ginsburg said.
Most of the issues brought up are either issues for police officers, or issues about what is said in a public courtroom, Cooney said. But prosecutors can hide evidence for decades without anyone knowing about it, leading to long incarcerations or possible executions of innocent people, he said.
"It is clear that four prosecutors knew about the existence of blood evidence for months, and it was never produced to the defense. And that blood evidence would have conclusively established John Thompson's innocence," Cooney said.
Thompson was convicted of attempted armed robbery in 1985, shortly before he was to stand trial in the unrelated case of the killing of Raymond Liuzza Jr. He did not testify during the murder trial. Prosecutors used Thompson's conviction in the robbery case to help secure the death penalty in the murder case.
In 1999, an investigator working on Thompson's case discovered a crime lab report that prosecutors had not turned over, indicating Thompson's blood type did not match the perpetrator in the attempted robbery.
A state appeals court set aside Thompson's murder conviction in 2002 after deciding he'd been unconstitutionally deprived of his right to testify during the murder trial. That cleared the way for the new trial in which Thompson was acquitted.
The district attorney's office does not contest that its prosecutors withheld a crime lab report favorable to Thompson.
But "it is impossible to determine beforehand exactly why a Brady violation will occur, and what specific training measures would prevent it from occurring," said Stuart K. Duncan, arguing for the district attorney's office.
A former prosecutor, Gerry Deegan, confessed to another lawyer in Connick's office, Michael Riehlmann, that he had intentionally withheld the evidence. Deegan made the admission after learning he was going to die of cancer.
"Even assuming training, if Deegan was going to destroy the evidence, or remove it anyway, as he admitted later to Riehlmann, then the training or lack of training is just irrelevant," Kennedy said."
The case number in Connick v. Thompson, 09-571.
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The story can be found at:
http://www.google.com/hostednews/ap/article/ALeqM5jN1qQEw6JhaklhyE5c0avwI0hQxQD9IMCMTG1?docId=D9IMCMTG1
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"Supreme Court justices on Wednesday appeared ready to give the green light to efforts by a New Orleans man to win compensation for prosecutorial misconduct that put him behind bars for more than two decades for a murder he did not commit," the National Law Journal by reporter Tony Mauro published earlier today begins, under the heading, "Justices Appear Ready to Hold New Orleans Prosecutors Liable for Misconduct."
"The Court heard arguments in the case of Connick v. Thompson in which former New Orleans District Attorney Harry Connick maintains that his office should not be held liable for what he contends was a single incident of failing to hand over exculpatory evidence to the defense before trial," the story continues.
"Louisiana appellate chief Stuart Duncan, arguing against liability, acknowledged that defendant John Thompson has suffered "terrible injuries" because of the actions of a lawyer in the prosecutor's office, but insisted that Supreme Court precedent does not allow Thompson to recover damages in a civil rights suit when no pattern of misconduct has been shown.
But several justices argued that by their reading of the record, at least four assistant prosecutors were aware that key blood evidence had been withheld, in violation of Brady v. Maryland, the 1963 decision that requires prosecutors to disclose exculpatory evidence to criminal defendants.
Another basis of the lawsuit is that Connick showed deliberate indifference by failing to train lawyers in the office on the importance of complying with Brady.
"It wasn't one rogue prosecutor," said Justice Ruth Bader Ginsburg, adding that there were "multiple opportunities" for the prosecution to turn over the evidence to Thompson's defense. "To shoehorn this into a single incident, it doesn't fit."
"There were four incidents here," said Justice Stephen Breyer. "And therefore, I don't have to try to make up weird hypotheticals." Duncan asserted that it should be viewed as one incident "that possibly could have involved one to four prosecutors."
Ginsburg and other justices also underlined the importance of Brady violations because, unlike disputes over Miranda warnings or other constitutional safeguards, failure to turn over evidence usually goes undiscovered. "Shouldn't there be extra vigilance when we are talking about a Brady claim?"
J. Gordon Cooney Jr., Morgan, Lewis & Bockius partner who has represented Thompson on appeals for 22 years, fielded several questions from justices about what kind of training, and how much, was required for a prosecutor to preserve immunity from liability. "The point of concern here is that we're going to have to go through a list, case by case, of everything there has to be training on," said Justice Anthony Kennedy.
Ginsburg added, "You don't want to have to give the prosecutors a clinical law school course before you let them do their job."
Cooney, picking up on Ginsburg's earlier comment, said there is "particular force" to training about Brady violations because they are "made in secret."
Wednesday's arguments represented the culmination of a 22-year pro bono effort by Cooney and fellow Morgan Lewis partner Michael Banks to obtain justice for Thompson. In 1999, when what seemed like a final appeal to the Supreme Court failed, they told Thompson nothing further would stop his execution. That same day, however, an investigator found exculpatory blood evidence that had been hidden by the prosecutor. We wrote about Cooney and Banks here and here.
Joining them at the counsel table was R. Ted Cruz, head of Morgan Lewis' Supreme Court and appellate practice.
When the evidence that would have exonerated Thompson from charges of armed robbery and murder was discovered, Thompson was retried in 2003 and freed. Thompson sued for a Section 1983 civil rights violation and a jury awarded him $14 million.
The 5th U.S. Circuit Court of Appeals upheld the award, ruling that it was unnecessary for Thompson to prove a pattern of Brady violations in Connick's office. Connick, who retired in 2003, filed an appeal to the Supreme Court that was joined by Louisiana. Connick is the father of the famous singer Harry Connick Jr., and also figured in a 1983 Supreme Court case, Connick v. Myers, on the First Amendment rights of government employees."
The story can be found at:
http://www.law.com/jsp/article.jsp?id=1202472982657&Justices_Appear_Ready_to_Hold_New_Orleans_Prosecutors_Liable_for_Misconduct
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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;