Emily Bazelon posts, "Playing Dirty in the Big Easy: New Orleans prosecutors have a checkered history of trying to win-at-all-cost. Now a couple lawyers are trying to hold them accountable," at Slate. Here's the beginning of this must-read:
A year ago, the Supreme Court overturned a $14 million jury verdict for a man named John Thompson. He won the money after being exonerated for a crime that put him in prison for 18 years, including 14 on death row. Thompson’s case is a totemic story of wrongful conviction: The state of Louisiana, where he was tried, had blood work that pointed to a different perpetrator. When the evidence came to light after 11 years of appeals and seven execution dates—thanks to a defense investigator’s last-ditch effort to go through old police records—a New Orleans prosecutor came forward to say that a colleague had hidden the blood analysis five years earlier. Thompson was eventually freed, and he sued the New Orleans district attorney, Harry Connick Sr., for failing to train his prosecutors about their obligations under the Brady rule. This is the 1963 Supreme Court holding that requires prosecutors to turn over exculpatory evidence: everything they know that suggests the defendant may be innocent.
That’s how Thompson won $14 million. Until Justice Clarence Thomas took it away from him, in a decision Dahlia Lithwick called “one of the meanest Supreme Court decisions ever.” In a 5-4 split, Thomas held that Connick couldn’t be responsible for one bad act by a single prosecutor. Thompson lost because, in the majority’s eyes, he hadn’t shown a pattern of office failure. To five justices, it somehow wasn’t enough, as Justice Ruth Bader Ginsburg pointed out in dissent, that there was evidence that a handful of prosecutors were involved in dissembling about the evidence against Thompson (and not only about the blood work—there was also an eyewitness identification that didn’t match his description that wasn’t shared with the defense). Nor did it matter to the majority that the Louisiana courts had overturned four other convictions because of Brady violations under Connick’s watch. Or that the Supreme Court had overturned another New Orleans death sentence for the same reason and would soon reverse yet one more.
Along with pure head-scratching injustice, Connick v. Thompson has done damage by making it much harder to hold prosecutors accountable for misconduct. As a group of Yale Law School students (one of whom is taking a class I’m teaching this semester) pointed out last fall in the Yale Law Journal, defendants can’t sue prosecutors personally, because they have immunity. It’s practically unheard of for prosecutors to be criminally prosecuted, even for blatant wrongdoing. And yet prosecutors abuse their power with some frequency: A 2003 study by the Center of Public Integrity, which the students cite, found more than 2,000 appeals since 1970 in which prosecutorial misconduct prompted dismissals, sentence reductions, or reversals.
Earlier coverage of Connick v. Thompson begins at the link. The case was discussed during an ABA panel at the mid-year meeting this spring, noted at the lin.
Related posts are in the prosecutorial misconduct index.
Thanks to Tristin Aaron for forwarding.
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