Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
In an appalling 5-4 ruling, the U.S. Supreme Court confirmed and even strengthened prosecutorial immunity, extending it from personal immunity to a stronger form of agency immunity as well. The case is Connick v Thompson, where Connick is the former Orleans Parish District Attorney Harry Connick, Sr. (yes, father of the crooner) and Thompson is John Thompson, a man falsely convicted of murder because Connick's office hid a report that ultimately exonerated him.
The prosecutors admit to that, by the way. There is no controversy over whether they violated the law and their ethical obligations and railroaded an innocent man, who was only weeks away from being executed for that crime he did not commit when the report that proved his innocence was discovered and used to overturn his conviction. The prosecutors admit withholding the evidence.
Thompson then filed suit against the DA's office, showing that Connick had failed to provide training for his prosecutors on the illegalities of withholding evidence. A jury found the office liable for that negligence and awarded Thompson $14 million in damages for the 14 years of his life spent behind bars and facing the death penalty. The appeals court affirmed that verdict. And the Supreme Court has now overturned it. The reason?
A district attorney's office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation.
It was only one guy!
Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by "action pursuant to official municipal policy," which includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. A local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for §1983 purposes, but the failure to train must amount to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." Deliberate indifference in this context requires proof that city policymakers disregarded the "known or obvious consequence" that a particular omission in their training program would cause city employees to violate citizens' constitutional rights.
Okay, so it has to be an official policy. And it can only be an official policy if they knew that the obvious consequence of their actions would be to violate the rights of citizens. So is the argument here that the prosecutors didn't know that withholding evidence of Thompson's innocence would violate his rights? The whole point of doing so was to lock him up and eventually put him to death, for crying out loud.
The 5-4 ruling was predictable -- Thomas, Scalia, Roberts, Alito and Kennedy in the majority, the court's four liberals in dissent. You can read the full ruling here.
Remember when Clarence Thomas, during his confirmation hearings, talked about those buses full of convicts that he saw go by his office in DC and how, because of his background as a poor young black man, he would show more compassion to their situation because, but for the grace of God, there went he? Neither does he.
His message to John Thompson: Sure, the government ruined your life and violated your rights. Tough. You'll get nothing. And like it.
Politics
Comments
Wow, that's appalling.
Now Thompson should go after every law school attended by one of those prosecutors, cuz seriously, that's some 101 shit.
Posted by: Andrea | March 31, 2011 12:52 PM
Huh. Could he sue the state bars who licensed the lawyers?
Posted by: Duke York | March 31, 2011 12:55 PM
Ed, by strengthen you meant "made ironclad." Please fix the headline.
Posted by: SocraticGadfly | March 31, 2011 1:08 PM
I guess by that reasoning, I can plead innocent because I was ignorant of a law. If the schools I went to did not teach me; how can I be liable?
Posted by: Pinky | March 31, 2011 1:22 PM
But it gets even worse. Suppose that the Assistant DA in charge of the case had misgivings about withholding the exculpatory evidence. Suppose further that he wrote a memo to Connick expressing those misgivings. Connick could fire (or otherwise discipline) the Assistant DA for writing the memo. The Assistant DA's speech gets no First Amendment protection.
A rather interesting information management policy the Court has created, isn't it? "Heads we win; tails you lose."
Posted by: Dan | March 31, 2011 1:35 PM
Why isn't Connick on Death Row?
Posted by: paulh | March 31, 2011 1:59 PM
That bullshit Clarence Thomas was spewing was a transparent attempt to liken himself to Thurgood Marshall, who had pointed out that he was the only member of the court who had actually been to jail.
Speaking of Thomas, I wonder what will happen if Scalia dies or retires before himself. He'll have to balance his deep desire to enrich corporations with his inability to do anything other than vote with his good buddy Antonin.
Posted by: Corey | March 31, 2011 2:27 PM
Ignorance of the law is no excuse, unless you are a cop or prosecutor. Apparently, you don't even need to know right from wrong to be a prosecutor.
The prosecutors involved should be indicted on conspiracy to commit murder.
Posted by: cb | March 31, 2011 2:59 PM
I guess by that reasoning, I can plead innocent because I was ignorant of a law.
Only if you work for the state. For everyone else, it's still illegal.
I get the idea of public servant immunity while on the job. I don't get why SCOTUS couldn't use a minimally sophisticated view of it that distinguishes between unusual mistakes (protected), and breaking rules that a reasonable person would consider obvious to the person on the job.
Analogize it to traffic laws; its one thing if some out-of-towner breaks some odd right-hand-turn law. Maybe the civil-servant equivalent of that situation deserves protection. But its quite another if the person living in Podunk, whose job requires them to drive down Podunk's Main st. every day, breaks the Main st. speed limit. There's absolutely no reason to give immunity for (the analogy to) that.
Posted by: eric | March 31, 2011 5:00 PM
Not this transparent shit again:
Our laws are so labyrinthine, so convoluted, so fractally intermingled, that there are bound to be bubbles of vacuum therein, providing wiggle room for this sort of particularly vexing special pleading.
Perhaps one day our laws might undergo a process of simplification (however shrill the opposition to any change might be) and even be integrated with something like, oh, I don't know, something like an Asshole Law?
I wonder if it will ever be possible to establish, with a high degree of certainty not only in fact but in public perception, that someone, by virtue of manipulations and scurrying attempts to cover their their (mostly) obvious intents to the cost and regret if others, are, in fact, assholes. As such, they might then be accorded the same treatment that assholes richly deserve under the protection of popularly established law. The law is, as we all know, a reflection of the will of the people.
E Pluribus Unum, somehow . . . why not try this?
Posted by: Crudely Wrott | March 31, 2011 8:50 PM
To everyone who feels that there should be public servant immunity: who is responsible for making this man whole? It seems self evident that he's entitled to some compensation, if it's not the individuals involved or their organizations that have to pony up, then who? And what's to keep the next prosecutor's office honest and careful? It's amazing to me how little this country and the people in it are willing to admit that incentives matter and then follow through and put in incentives that might make things change.
Posted by: Ryan | April 1, 2011 12:11 PM
I can see that defense flying....
"Hey, I only killed one guy." =)
Posted by: FastLane | April 1, 2011 3:16 PM
It seems that prosecutors get immunity while defense lawyers get railroaded:
http://www.chicagotribune.com/news/local/ct-met-lawyer-charged-phone-0403-20110402,0,7316932.story
Here, a volunteer lawyer trying to help out on her own time is hit with a felony for violating an unknown, unposted policy.
Posted by: Ken | April 3, 2011 10:09 PM
Well, it's worse than most of you think. Professor's, Journalists being the worse offenders, have no clue on the first amendment. The teach logic, but they can't recognize any of the 22 or so fallacies that they state will cause a person of ordinary firmness to recognize a lie when they see it. For instance, most universities pass off to 90 percent of their students, {yes hasty generalization} that our America has free speech only barring "yelling fire in a crowded theater" type speech that could cause injury. But this "Red Herring" has redirected public scrutiny from lessor offenses that make us comparable to cold war Russia and China. google Richard I. Fine a 70 year old
doctorate, former prosecutor, dignitary jailed for 18 months out of retaliation for free speech! Yet as you see, prosecutors have a constitutional right to actually frame citizens to death on death row, and still keep a straight face, only because of the redness and flush feeling they must overcome in looking someone still clinging to human emotions, which they lost years earlier! How can such scum produce offspring with such talent!
Look at Chisholm v. Georgia 1793. The author/framer of the Constitution, as a Supreme Court judge, James
Wilson, stated that no king could rule like George III did escaping liability under the "doctrine of immunity" in the new USA. He stated, "to the constitution the word sovereign is totally unkown" and quantified his intent in a following phrase in his opinion!
Two days later, an anonymous congressmen drafted the 11th amendment. Maybe they though it was divine providence from God himself, affirming that Sovereign power was a necessary evil. Why would a congressman be ashamed of an amendment, after all “james michel ashley" was proud to introduce the 13th amendment that made slavery a constitutional right!
The 11th amendment overturned the cause of actions in the Revolution that ended sovereign power, the “right inestimable and formidable to tyrants only.” Basically it set aside the bill of rights which where bankrupting officials already acting corrupt, typically “war debt contracts.” So after the 11th amendment, all officials were given an immunity defense which overcomes the First Amendment petition clause making it less useless than toilet paper.
The King was back, and was told simply, "hide your crown" shhhh don't talk about the 11th amendment, its a secret, they are too stupid to read opinion from Scotus that explains it! "No one but a few dissidents will ever know" and they'll think the dissidents are crazy! The most brilliant and diabolical coup that ever took place and was never noticed! God this is amazing! I'm honored to have been able to see it, just wish I could explain it better!
Yet your professor failed to inform you of this. And whereas, I love a scientist quoting case law, unqualified authority, fallacy. Nice article, but short on law and facts.
Nothing new gomer! This has been going on since 1790 something! Oh didn’t you get the memo?
Sorry to be so caustic, but good god! It sort of makes me sick to be almost an imbecile when I compare credentials, yet I seem to have no problem researching facts. Someone dispute me please! Free me from this madness! I want to be wrong, but I can’t see it! Point it out to me!
Posted by: Pat Hamer | October 13, 2011 1:51 AM
If you are really interested, they are referring to Monell v. City of New York regarding "long standing policy" to deprive rights, typically arbitrary behavior due to failure to properly train.
District Courts are misconstuing these actions anyway to non actionable not alleged claims and if you have the money and insanity to go to appellate you might get it put back to the corrupt district courts.
See recent case from scotus a week ago, Norse v. City of Santa Cruz piercing immunity of legislators for ad hoc decisions are a main function of municipalities.
wow! this is real good stuff
Posted by: Pat Hamer | October 13, 2011 2:03 AM
Pat - "lessor offenses" Yup, those landlords are pretty offensive.
OBTW TL;DR
Dingo
Posted by: DingoJack | October 13, 2011 10:32 AM