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Cops Are Stupid, But Prosecutors Are Smart

Posted: 04/ 1/11 11:30 AM ET

That's the message from the U.S. Supreme Court's 5-4 decision vacating a $15 million dollar jury award for John Thompson, a Louisiana man who spent 14 years on death row (in all, 18 years in prison) for back-to-back armed robbery and murder convictions. He was weeks away from being executed, until his investigator found blood evidence on the robbery victim's clothing that proved Thompson's innocence (he was Type O, but the blood evidence was Type B) that had been hidden from Thompson's lawyer by a team of prosecutors in the New Orleans Parrish District Attorney's Office, and ultimately led to his murder conviction. As one of these rogue prosecutors had stated to Thompson: "I'm going to fry you. You will die in the electric chair."

This grisly, almost unimaginable story of U.S. criminal justice gone amok, was closed by the Supreme Court this week in a decision by Justice Clarence Thomas, joined by Roberts, Scalia, Alito, and Kennedy, that has to rank as one of the Court's most questionable opinions in the area. Thompson, in his civil rights lawsuit after his exoneration, claimed that New Orleans District Attorney Harry Connick, Sr. at the time was "deliberately indifferent" to the constitutional rights of defendants prosecuted by his office - one of the prosecutors actually "confessed" to another having allegedly suppressed the exculpatory blood evidence - and, in fact, knowingly allowed prosecutors in his office to engage in repeated acts of misconduct, especially hiding exculpatory evidence, without any adverse consequences to them. Critical to Thompson's argument, which the jury, as well as two lower federal courts, found persuasive, was proof that Connick willfully failed to train his prosecutors about how to handle exculpatory evidence. Connick's office, the civil jury learned, had one of the worst records in the country in mishandling such evidence. Connick astonishingly claimed in his own testimony that training would make his job more difficult.

Agreeing that an office policy of deficient training could establish a prosecutor's deliberate indifference, the Supreme Court majority reasoned that there was insufficient evidence of deficient training in Connick's office, and even if there was such evidence, it was irrelevant to the violation of Thompson's constitutional rights. The majority's bizarre reasoning goes like this: whereas police officers need extensive training, for example, when they chase fleeing felons and need to know when they can use deadly force, prosecutors, by contrast, are lawyers who have been extensively trained in law school on how to interpret and apply legal rules, and how to use evidence, and they have passed a bar examination demonstrating their fitness to practice law. Moreover, prosecutors receive abundant on-the-job training on the use of evidence. And anyway, according to the majority, the constitutional principle at stake in Thompson's case did not require special training; it was an aberrant act - the supposed act of "one rogue prosecutor," all evidence to the contrary notwithstanding - and training would have made no difference.

Unaccountably, the majority ignored, dismissed, or misstated the massive evidence that the jury heard and accepted that the absence of education and training in Connick's office contributed to a culture of deliberate indifference to the rights of defendants, which produced Thompson's horrific miscarriage of justice. This evidence was described in the powerful dissenting opinion of Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, which Justice Ginsburg took the unusual step of reading from the bench. Her dissent was so contemptuous of the majority's decision that it provoked a gratuitous concurring opinion from Justice Scalia in a likely effort to seek to legitimize the majority opinion from her savage rebuke.

As the jury learned, under Connick's watch, the misconduct by Thompson's several prosecutors was neither isolated nor aberrant. There was considerable evidence that both Connick and prosecutors in his office were ignorant of the constitutional rules regarding disclosure of exculpatory evidence; they were ignorant of the rules regarding disclosure of scientific evidence; there was no training, or continuing education, and no procedures to monitor compliance with evidentiary requirements; prosecutors did not review police files; and shockingly, Connick himself had been indicted by federal prosecutors for suppressing a lab report of the kind hidden from Thompson.

Moreover, the culture of misconduct in Connick's office was not unfamiliar to the Supreme Court. A few years earlier, in Kyles v. Whitley, the Court, in an influential 5-4 decision, vacated a capital murder conviction prosecuted by Connick's office based on egregious prosecutorial misconduct, especially hiding exculpatory evidence that, as in Thompson's case, provided a vivid example of how an innocent man had been railroaded to the death chamber by unscrupulous prosecutors. The salient difference between Kyles and Thompson, of course, is that Justice Alito replaced Justice O'Connor.

District Attorney Connick is fortunately gone from office. His famous son might, on his behalf, croon in Sr.'s defense his version of "Please Don't Talk About Me When I'm Gone." For those who would seek to reform the continuing frailties of the criminal justice system, the truth is that what happened to John Thompson in Connick's office must be talked about. Prosecutors may indeed be smart, but some may sometimes cause unimaginable injustices.