JOHN THOMPSON: (18) PROF. ERWIN CHEMERINSKY; NATIONAL LAW JOURNAL; DISTURBING MESSAGE SENT OUT BY SUPREME COURT;

"For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens. Unfortunately, the Supreme Court has not gotten the message........."

ERWIN CHEMERINSKY; NATIONAL LAW JOURNAL; (Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.)

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BACKGROUND: 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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"The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct," the commentary by Erwin Cherminsky published in the National Law Review on April 25, 2011, begins, under the heading, "Head in the sand over prosecutorial misconduct: The Supreme Court has sent a disturbing message that it just doesn't realize there is a serious problem infecting our criminal justice system."

"Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels," the commentary continues.

"For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.

Two years ago, in Van de Kamp v. Goldstein, 555 U.S. 335 (2009), the Court dismissed a suit against prosecutors by a man who spent 24 years in prison for a murder that he did not commit. Tommy Lee Goldstein was convicted of murder even though there was no physical evidence linking him to the crime, no eyewitness and no confession. The key evidence against Goldstein was the testimony of two witnesses who said that they heard him admit to the killing. One later recanted.

The other, the key witness, was a jailhouse informant, Edward Fink, who had a long history of making deals with prosecutors to get a reduction in charges and punishments in exchange for giving testimony against other inmates. Fink claimed that Goldstein made incriminating statements when they shared a jail cell together. The prosecutors never disclosed Fink's history to Goldstein's lawyers nor the discussions about the benefits Fink would receive for testifying against Goldstein.

After Goldstein prevailed in his habeas corpus petition and was exonerated, he sued the then-district attorney for failing to institute a policy of disclosing such information to criminal defendants, as is required by the U.S. Constitution. The Supreme Court unanimously held that Goldstein's civil suit had to be dismissed because of absolute prosecutorial immunity.
ABSOLUTE VS. QUALIFIED IMMUNITY

The Supreme Court has held that prosecutors have absolute immunity for their prosecutorial acts, but only qualified immunity for their administrative and investigative acts. See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976). Goldstein argued that his suit was based on the administrative failure of the district attorney, including the failure to adequately train and supervise district attorneys on the need to disclose impeachment material. The Supreme Court rejected this argument and declared: "[W]e conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here."

On March 29, in Connick v. Thompson, 2011 WL 1119022 (U.S.), the Court ruled against a man who was convicted and spent 18 years in prison, and 14 years on death row, because of prosecutorial misconduct. One month before he was to be executed, John Thompson's defense lawyers found blood evidence that prosecutors possessed, but did not disclose, that exonerated him for an armed robbery for which he had been convicted and that greatly affected his murder trial.

Two days before Thompson's trial, the assistant district attorney received the crime lab's report, which stated that the perpetrator had blood type B. The defense was not told of this, not at the trial and not until the report was discovered shortly before Thompson's scheduled execution. Thompson has type O blood.

The district attorney conceded that it violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), in not turning over the blood evidence. Thomp­son sued for prosecutorial misconduct, and a jury awarded him $14 million. But the Supreme Court reversed, in a 5-4 decision, and held that the city could not be held liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the Court, said that a single instance of prosecutorial misconduct was not enough to show sufficient deliberate indifference to allow the city to be sued.

But as Justice Ruth Bader Ginsburg pointed out in her dissenting opinion, this was not a single instance of misconduct. She wrote: "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.…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."

These two cases share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors' failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency. In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material.

Most importantly, in both cases, the Court ruled against the innocent victims of prosecutorial misconduct. In doing so, the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system."

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The commentary can be found at:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202491215314&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20110427nlj&kw=Head%20in%20the%20sand%20over%20prosecutorial%20misconduct&slreturn=1&hbxlogin=1

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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;