Power To The People

The following piece was originally published on Second Class Justice, a blog published by Steve Bright, president and senior counsel of the Southern Center for Human Rights, and one of the great death penalty and social justice lawyers in the country.

The Supreme Court's Vision of the 'Invincible Prosecutor'

by Bidish Sarma, April 18, 2011

The U.S. Supreme Court’s recent opinion in Connick v. Thompson threw out a $14 million award that a jury provided to John Thompson, a man who spent 18 years in prison (14 of them on death row) for crimes he did not commit. Mr. Thompson faced a possible execution not because he provided a false confession or because a jailhouse informant cut a deal to testify against him, but because New Orleans prosecutors never disclosed several vital pieces of evidence, including a blood test that demonstrated he was innocent of an attempted armed robbery – evidence that blew apart the State’s strategy and theory in the murder case. (That’s right: Mr. Thompson was not wrongfully convicted once, but twice.) After a court threw out his attempted armed robbery conviction and a jury acquitted him on the murder charge at a re-trial, Mr. Thompson filed a lawsuit, seeking some remuneration for the years of his life and the future opportunities that a corrupt prosecution stole from him. A jury found that the district attorney’s office had failed to sufficiently train its employees to observe the constitutional duty to disclose evidence favorable to the defendant under Brady v. Maryland. Two weeks ago, five robed individuals seated 1,000 miles from New Orleans overturned the decision of 12 Louisiana residents, depriving Thompson of every dime.

Connick v. Thompson has appropriately garnered a great deal of attention. Dahlia Lithwick referred to it as one of the “meanest” decisions ever. And, Scott Lemieux discussed how the opinion “reflects poorly on the American criminal justice system.”  These and other commentators have made two key points, and have made them well: first, both the Supreme Court and the Orleans District Attorney’s office mischaracterized the facts, straining to depict the cause of Mr. Thompson’s wrongful conviction as the work of a single rogue prosecutor who committed “a single” Brady violation; second, the decision all but forecloses the possibility of anyone ever winning a civil suit against a prosecutor. One cannot hold a district attorney liable in an official capacity because Connick v. Thompson sets an impossibly high bar for proving that an office failed to adequately train its lawyers. Moreover, careless and crooked prosecutors enjoy absolute immunity in their individual capacities. The options are limited, to say the least.


As the dust settles from the havoc wreaked by Thompson, two questions must be asked: (1) why did the Supreme Court take this case?; and, (2) what can be done to prevent prosecutors from going too far in the future?

The first question is significant because nobody forced this case upon the Court. Instead, out of the thousand-plus petitions submitted each term, the Court selected this to be one of a few dozen cases it would decide on the merits. The Court’s discretionary docket tells us a lot about its current concerns. Recently, it has demonstrated an interest in protecting corporations’ rights to make campaign contributions. It has also embarked on a mission to reverse Ninth Circuit decisions that, in its view, do too much to protect individual rights. And in preventing an innocent man from collecting any restitution for the 117,000 hours he spent in an 80-square-feet cell at Louisiana State Penitentiary, the Supreme Court revealed a third priority: promulgating its vision of the “invincible prosecutor.”

The image of the “invincible prosecutor” also appeared earlier in the term, when the Supreme Court unanimously reversed a Ninth Circuit decision which had granted a criminal defendant a new trial where the prosecutor had (arguably) intentionally discriminated against prospective African-American jurors. Not only did the Supreme Court’s opinion reinstating the conviction in Felkner v. Jackson trigger no dissent, but it was a per curiam ‘summary reversal’ – an unsigned decision handed down without briefing or oral argument. In other words, the Supreme Court put the Ninth Circuit in its place.

Contrary to what some commentators have suggested, Jackson stands for more than Ninth Circuit eccentricity. The Supreme Court has limited resources, and every case on which it expends energy – even a five-page summary reversal – has far-reaching implications. In reversing the opinion, the Supreme Court did more than correct another Ninth Circuit “outlier”; it solidified the notion that prosecutorial conduct is unassailable on appeal. Moving forward, district attorneys and courts will interpret the opinion as endorsing the prosecutor’s decision to exclude an African-American man who had negative experiences with law enforcement twenty years before trial but to allow a white female who had felt targeted and neglected by police officers to serve on the jury. And, courts will incorrectly deny claims of racial discrimination when prosecutors, like the one in Jackson, fail to meaningfully question African Americans about issues that later become the basis for their exclusion.

Taken together, Jackson and Thompson are pieces of an emerging jurisprudence that makes prosecutors nearly invincible. Under Jackson, appellate courts (even those not bound by AEDPA) will hesitate to reverse convictions in cases where the defense argues that the State has discriminated against potential jurors on the basis of their race. And, under Thompson, exonerees will struggle to persuade civil attorneys to front the money needed to bring their lawsuits to court. In this era of the infallible prosecutor, the second question posed – how to keep prosecutors in line – becomes more urgent than ever.

There are five primary means to keep prosecutors from overstepping the bounds of propriety and fairness: (1) criminal courts can overturn convictions obtained as a result of prosecutorial misconduct and dismiss unwarranted charges; (2) juries in civil courts can hold district attorney offices liable for prosecutorial misconduct; (3) professional associations and disciplinary counsel can fine, suspend, or disbar prosecutors who violate ethical canons; (4) district attorney offices can meaningfully train their assistants and punish those who engage in misconduct; and (5) the Department of Justice can initiate proceedings against prosecutors who violate federal civil rights legislation.

Option 1 is not promising, particularly in light of Jackson. Courts are reluctant to reverse convictions, especially in jurisdictions where the judges themselves are elected officials. The Thompson majority demolished option 2. And, as anyone who with experience in the criminal justice system can tell you, options 3, 4, and 5 are almost never utilized. Disciplinary actions against prosecutors are extremely rare, if not non-existent in most jurisdictions. Though some offices provide sufficient training, the conduct that put John Thompson behind bars is all too common when district attorneys are under intense pressure to secure convictions and position themselves as ‘tough on crime’ to succeed in competitive elections. Finally, the Department of Justice has hardly ever enforced certain laws that impose fines on prosecutors for their civil rights violations.

As the Supreme Court continues to advance the ideal of the invincible prosecutor, the time has come for federal and state legislators to implement effective schemes to deter misconduct. Mr. Thompson may have walked out of the Supreme Court empty-handed, but he is not the only one endangered by the Court’s decisions.

[Related posts:   Carte Blanche for Prosecutors, Travesty of Justice]