Prosecutorial training wheels: Ginsburg's Connick v. Thompson dissent and the training imperative.

Author:Fry, Timothy
Position:US Supreme Court Justice Ruth Bader Ginsburg
 
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  1. INTRODUCTION

    On March 29, 2011, the Supreme Court released a 5-4 decision in Connick v. Thompson, (1) reversing an evenly divided en banc decision of the Fifth Circuit. (2) The Court held that a [section] 1983 suit could not be used to hold a prosecutor's office liable for a single Brady violation by a member of its staff (3) on the theory that the office provided inadequate training. (4) This decision overturned a $14 million jury award to respondent John Thompson, a former death row inmate who had been exonerated weeks before his scheduled execution. (5) Beyond merely clarifying the reach of a failure-to-train claim, (6) the majority and the dissent revealed starkly different views on training America's prosecutors. (7)

    In the criminal cases underlying Thompson's [section] 1983 suit, the Orleans Parish District Attorney's Office in Louisiana tried Thompson separately for armed robbery and murder and secured convictions at both trials. In both trials, the prosecutor's office failed to turn over to the defense material evidence that cast doubt on Thompson's guilt--blood tests that indicated he had not committed the armed robbery and eyewitness testimony suggesting he was not the murderer. (8) After failing to turn over the blood tests, the Orleans Parish District Attorney's Office prosecutors secured the armed robbery conviction. This ensured Thompson would not take the stand in his own defense at the murder trial, (9) where he was convicted and sentenced to death. When a defense investigator discovered these undisclosed facts weeks before Thompson's scheduled execution, the court promptly reversed both of Thompson's convictions. (10)

    After Louisiana unsuccessfully reprosecuted Thompson for both crimes, Thompson commenced a [section] 1983 suit against the Orleans Parish District Attorney's Office, prosecutors, and various officials. The only claim that went to trial alleged a failure to train prosecutors on their Brady doctrine obligations. (11) The jury awarded $14 million because the district attorney's office was "deliberately indifferent to the need to train, monitor, and supervise [its] prosecutors to comply with the constitutional requirements concerning production of evidence favorable to an accused." (12) The Supreme Court, in reversing, claimed that the plaintiff had not met his burden because he could not show either an official policy or a pattern of violations that caused his harm. (13) Justice Thomas, writing for the majority, read the facts to say that only a single prosecutor withheld the evidence and Thompson's case was unique. (14) The office had no notice of Brady violations to correct through training. (15)

    Justice Thomas went on to discuss how prosecutors' offices are protected more broadly from [section] 1983 suits because they employ trained attorneys. Individual prosecutors have received "professional training and [have] ethical obligations" to inform themselves of the Brady doctrine. (16) Specifically, the attorneys in the Orleans Parish District Attorney's Office graduated from law school, passed the Louisiana bar exam, and possibly attended continuing legal education training; they alone were responsible for their actions. (17)

    In an impassioned dissent, Justice Ginsberg took direct aim at whether this "training" was adequate. She noted that the lead prosecutor's alma mater did not require criminal procedure, passing the Louisiana bar exam did not require knowledge of Brady, and the state did not require continuing legal education at the time. (18) In her dissent, which she read from the bench, she reasoned:

    A District Attorney aware of his office's high turnover rate, who recruits prosecutors fresh out of law school and promotes them rapidly through the ranks, bears responsibility for ensuring that on-the-job training takes place. In short, the buck stops with him.... The evidence in this case presents overwhelming support for the conclusion that the Orleans Parish Office slighted its responsibility' to the profession and to the State's system of justice by providing no on-the-job Brady training. [The petitioner district attorney] was not "entitled to rely on prosecutors' professional training," for [he] himself should have been the principal insurer of that training. (19) This Comment corroborates Justice Ginsburg's view of the necessity of prosecutor training by exploring the interplay between discretion, misconduct, and training. Specifically, in Part II, this Comment discusses how prosecutorial discretion can lead to cases of misconduct, which complex procedural doctrines like the Brady doctrine have been unable to eliminate. In Part III, this Comment reveals the weaknesses of current training regimes, which other proposals have not addressed. Finally, in Part IV, the Comment turns to a series of modest proposals to incentivize increased Brady-doctrine training. Without increased training, Justice Ginsburg's dissent will continue to echo as an unheeded warning against prosecutors who fail to provide proper due process protections for the accused, even those who are innocent.

  2. PROSECUTORIAL DISCRETION AND ITS LIMITS

    1. THE RESPONSIBILITY AND DISCRETION OF A PROSECUTOR

      Prosecutors have enormous, wide-ranging discretion to choose what crimes to investigate, whether to entertain plea bargains, when to grant immunity to a potential witness, how to organize the state's case, which charges to prosecute, and even in which jurisdiction to bring a case. (20) Prosecutors are powerful actors, controlling the criminal justice system with an outsized impact on the wider political system. (21) Prosecutors' day-to-day decisions happen behind closed doors and are virtually unreviewable. (22) Prosecutors are answerable only to other prosecutors, (23) who rarely prosecute such misconduct. (24) Elected prosecutors, despite having a responsibility to their electorates, (25) rarely face punishment at the ballot box because the public usually does not learn of the misconduct and even if it does, it may not care as long as convictions resulted. (26)

      Prosecutorial discretion--deciding what legal actions to take, if any (27)--is a "residual concept" that leaves prosecutors the opportunity to exercise subjective judgment within the gaps of statutory and judge-made law. (28) Legal philosophers have typically not provided a more particular definition (29) because "like the hole in a doughnut," discretion exists in between restrictions and "is therefore a relative concept." (30) The theoretical base of discretion is the Anglo-American understanding of free will. (31) Since people choose whether to exercise their own power, they have discretion to make choices about their actions. (32) Discretion is likely inevitable due to human limitations (33) and resource limitations making punishment of all crimes impossible. (34) The Supreme Court has endorsed prosecutorial discretion on numerous occasions. (35)

      Resource limitations make some discretion inevitable, but the modern criminal justice system guarantees wide-ranging discretion. There are likely over 4,000 federal crimes, (36) and that number is growing. (37) The state level mirrors the federal crime increase. (38) While this means that prosecutors face increasing trial dockets, (39) there are also numerous crimes that go unprosecuted. (40) This allows prosecutors to select the prosecutions they pursue and those they do not. Further, directly in response to their large dockets, prosecutors rely on plea agreements. (41) In state courts, plea agreements account for over 94% of felony convictions (42) and this rate is even higher in federal courts. (43) These agreements also often come early in an investigation when a prosecutor can dictate terms to a defendant before the defendant's attorney has had time to investigate the case. (44) No one reviews prosecutors' discretionary decisions to offer or not to offer such plea agreements. (45) Taking charging and plea-bargaining powers together, prosecutors have large discretion in determining criminal sentences. Often the prosecutor is setting the punishment for criminal acts with a force of law similar to that of the legislatures that write the initial law. (46)

      Prosecutorial discretion is reinforced by immunity from civil lawsuits. (47) The first American case to extend immunity to a prosecutor was an 1896 Indiana Supreme Court decision affirming dismissal of a complaint for malicious prosecution. (48) This decision became the majority rule in the United States. (49) By 1927, the Supreme Court endorsed this rule (50) by affirming per curiam the Second Circuit's holding that a prosecutor "is immune from ... malicious prosecution based on an indictment and prosecution...." (51) The Second Circuit grounded this rule in public policy considerations. (52) In 1976, the Supreme Court extended this common law rule of immunity to [section] 1983 civil rights claims. (53) This holding was limited to the "judicial phase of the criminal process." (54)

      In subsequent cases, the Supreme Court further extended prosecutorial immunity. In Van de Kamp v. Goldstein, (55) the Court extended absolute immunity to administrative tasks, such as training, supervision, and management of information systems. (56) The Court's rationale for this expansion was that these administrative tasks relied on the prosecutor's "legal knowledge and the exercise of related discretion." (57) In other circumstances, the Court has granted qualified immunity to provide a "defense of good faith" for prosecutors performing certain official duties. (58) These official duties include: (1) advising the police; (59) (2) interacting with the media; (60) and (3) testifying as a complaining witness. (61) Qualified immunity will protect a prosecutor unless he or she knowingly violates clear constitutional standards. (62)

      Since absolute or qualified immunity will be extended to most actions of a prosecutor, one concern is that immunity leads to an increase...

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