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A Supreme Miscalculation: High Court Should Revisit Prosecutorial Immunity

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John Thompson has lived through more ups and downs than most of us will. In April 1985, he was convicted of an armed robbery he did not commit and sentenced to 49 and one half years in prison. The next month, he was tried and convicted of a murder he also didn't commit. He was sentenced to death.

It took 18 years to unravel the wrongful convictions. "I was delivered an execution warrant in my cell seven times," Thompson said. "I was only weeks away from being executed when the lawyers got the killing stopped."

The killing was stopped in late April 1999, because an investigator, hired by Thompson's attorneys in a last-ditch effort to avert his looming execution, happened upon a microfiche copy of a police report that revealed that blood left by the assailant at the scene of the armed robbery did not belong to Thompson.

The armed robbery charge was dismissed. Thompson then won a new trial in the murder case. A jury acquitted him after just 35 minutes of deliberation.

Then, in 2003, Thompson filed a civil lawsuit arguing that prosecutors working for the District Attorney's Office in Orleans Parish, Louisiana had deliberately concealed physical evidence from the armed robbery crime scene and then had hidden the crime lab report showing Thompson wasn't linked to the blood found there. They sat on this information year after year, as Thompson rotted on Death Row.

In his suit, Thompson contended that the Orleans Parish District Attorney--one Harry Connick, Sr.--was responsible for his wrongful convictions, because he failed to train his assistant DAs on their responsibility under the U.S. Constitution to turn over exculpatory evidence to the defendant and his lawyer.

The Supreme Court's seminal decision in Brady v. Maryland recognized that prosecutors must tell the defense about any evidence that negates the guilt of the accused. If a prosecution witness has a motive to lie in order to curry favor from the state, the defense has a right to know. If evidence from the scene of the crime proves the defendant innocent, the defendant obviously has a right to know. A criminal trial is not a game. The prosecution's objective must be to do justice, even if that means the defendant gets acquitted.

The evidence at the trial of Thompson's civil lawsuit proved overwhelmingly that Connick was indifferent, if not hostile, to his obligation under the Brady ruling. Connick's office didn't provide any training to assistant DAs on the disclosure requirement. His assistants didn't know the basics of the rule. And in Thompson's case, they withheld from the defense team ten exculpatory reports and records - in addition to the exonerating blood evidence in the armed robbery - that undercut Thompson's murder conviction.

There was also evidence that Connick himself is not a good man. He had once been indicted by the federal government for his own failure to turn over a crime lab report to the defense. Appellate decisions have repeatedly chastised Connick's office for violating the Brady rule. And in the aftermath of the Thompson fiasco, Connick quashed a grand jury investigation of the misconduct by the assistant DAs who tried Thompson's case, commenting that an investigation of possible criminal wrongdoing by those assistants "w[ould] make [his] job more difficult."

Unsurprisingly, the jury that heard Thompson's civil trial awarded him a judgment of $14 million as compensation for his nearly two decades of wrongful imprisonment and his brush with death. The federal Court of Appeals affirmed the verdict. For several years, Thompson was a millionaire in waiting.

On Tuesday of last week, however, the US Supreme Court wiped out the award by a vote of 5 to 4. The Court's much-lamented decision reasoned that Connick couldn't be found liable unless he had been on notice of a "pattern of similar constitutional violations" prior to the misconduct in Thompson's case. Ignoring the ample evidence in the trial record, the Court found that Thompson hadn't proved such a pattern.

This magisterial indifference to the record of Connick's complicity in Thompson's plight is a tragedy. Given a chance to ameliorate the injustices heaped on John Thompson, the Supreme Court aggravated them.

Of equal (possibly greater) concern, though, is a misstep the Supreme Court made decades ago that reverberates today in the Thompson case. In a 1976 decision, the Court adopted the doctrine of prosecutorial immunity. Under this rule, prosecutors enjoy complete protection from suit for civil rights violations they may commit in the course of preparing or trying a criminal case.

Because of this doctrine, Thompson couldn't sue the trial prosecutors most directly responsible for railroading him--despite their deliberate and flagrant violations of his constitutional rights, and despite the Supreme Court's description of one of his prosecutors as a "miscreant." (Administrative malfeasance, on the other hand, isn't subject to absolute prosecutorial immunity. Hence, the attempt by Thompson's civil lawyers to hold Connick accountable.)

The Court's decision to bar civil rights suits against trial prosecutors came in a more innocent era. The Court was confident that prosecutors would be deterred from misconduct by their own professional culture; by oversight from the courts and the organized bar; and by the threat of discipline should they overstep constitutional limits. Lawsuits, the Court reasoned, were unnecessary and would distract prosecutors from the "vigorous and fearless" performance of their duties.

The cascade of wrongful convictions--many of them, like John Thompson's, the result of egregious prosecutorial misconduct--belies the Court's sunny view of the criminal justice system's ability to police itself. Repeatedly, we have seen that prosecutors haven't been deterred from egregious constitutional violations. John Thompson's case proves that it's time we started rethinking the idea that miscreant prosecutors get a free pass when they trample on the rights of innocent defendants.