Tony Mauro posts"Stevens Criticizes Ruling on Prosecutorial Immunity," at Legal Times/Law.com.
In a speech last night, retired Supreme Court Justice John Paul Stevens made clear his displeasure with the Court's recent decision in Connick v. Thompson and urged congressional action to hold prosecutors clearly liable for the civil rights violations of their underlings.
It is rare but not unheard of for retired justices to comment critically about the Court's work, especially about a specific recent decision. But it seems in keeping with how the 91-year-old Stevens plans to spend his retirement, speaking out on issues of the day and, as he recently revealed, writing a book.
Stevens spoke at a New York dinner in his honor sponsored by the Equal Justice Initiative, the Alabama-based organization that supports indigent defendants and prisoners.
By a 5-4 vote, the Court in Connick overturned a $14 million judgment awarded to a man who spent 14 years on death row in Lousiana before his convictions were overturned.
And:
Stevens highlighted what he said were the "shocking facts" of the case, which pointed to prosecutorial misconduct well beyond a single act — including concealment of blood evidence and of conflicting police reports. Stevens indicated he agreed with dissenting Justice Ruth Bader Ginsburg that the jury was correct in finding deliberate indifference on the part of the prosecutor.
Justice Antonin Scalia came in for criticism from Stevens. Stevens quoted from Scalia's statement in a concurrence that "there was probably no Brady violation at all" in the case, except by one deputy sheriff which, Scalia said, was "a bad-faith knowing violation" that was not the result of lack of training. Stevens said Scalia had "either overlooked or chosen to ignore the fact that bad faith, knowing violations may be caused by improper supervision."
That point led to Stevens' broader assertion that reform is needed to apply respondeat superior principles to prosecutors in the same way they apply to private employers. In other words, he concluded, district attorneys need to be held liable for wrongdoing by employees. Stevens noted that prosecutors' immunity from that liability is a "judge-made rule" stemming from dicta in the 1978 decision Monell v. New York City Department of Social Services. That rule was a mistake, Stevens said, especially given that political pressure gives prosecutors little incentive to train their underlings on Brady. Stevens said the problem could be fixed — as with other statutory interpretations by the Court — by an act of Congress, amending the civil rights protection known as Section 1983.
"Stevens Urges Congress to Crack Down on Prosecutorial Misconduct," is the title of Jess Bravin's post at the WSJ Law blog.
Retired Justice John Paul Stevens said Supreme Court decisions have given local prosecutors impunity for violating constitutional rights, and urged Congress to respond by authorizing victims of misconduct to sue.
In a speech Monday night to the Equal Justice Initiative, which advocates for indigent defendants, Justice Stevens criticized the court’s March decision overturning a jury’s $14 million award to an innocent man who spent 14 years on death row after prosecutors concealed evidence that could have cleared him.
The case of Connick v. Thompson saw the court split 5-4 along its conservative-liberal divide. Writing for the majority, Justice Clarence Thomas rejected the freed man’s theory that the New Orleans district attorney’s office was negligent for failing to train its staff to comply with longstanding precedents requiring prosecutors to disclose exculpatory evidence to defendants.
And:
Stevens said Monday that the nature of the American criminal justice system—where most local prosecutors are elected—“creates a problem of imbalanced incentives that ought to be addressed at the state and national level.”
Because district attorneys often run on tough-on-crime platforms, the pressures to ensure convictions far outweigh the rewards for respecting rights of the accused, Stevens said.
That could be fixed, he said, by making district attorneys liable when their subordinates commit outrageous violations of constitutional rights. Private-sector employees already are liable for their employees’ misconduct, under a legal doctrine called respondeat superior.
The doctrine “provides a powerful continuing incentive for employers to make sure that their employees are adequately trained,” Stevens said, something “especially important where electoral incentives encourage abuse.” More important, he said, “it would produce a just result in cases like Thompson’s in which there is no dispute about the fact that he was harmed by conduct that flagrantly violated his constitutional rights.”
Justice Stevens' speech is available in Adobe .pdf format. Thanks to Elizabeth Zitrin for pointing me to the speech.
More on Connick v. Thompson, prosecutorial misconduct, and the plight of John Thompson at the links.
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