'Somebody help me understand this': the Supreme Court's interpretation of prosecutorial immunity and liability under s. 1983.

• Author: McClelland, Kate

INTRODUCTION

On March 29, 2011, the Supreme Court of the United States held in Connick v. Thompson (1) that a district attorney's office could not be held liable under 42 U.S.C. [section] 1983 for a single Brady (2) violation by one of its prosecutors. The 5-4 decision split along ideological lines. The conservative branch of the Court refused to hold a district attorney's office liable for what it saw as a single Brady violation by a lone, rogue prosecutor. The liberal wing of the Court interpreted the facts differently, and found egregious Brady violations that deprived the respondent of his constitutional rights. The case appalled commentators. (3) In their opinion, the respondent clearly suffered an injustice at the hands of his prosecutors, and yet the Court's opinion barely acknowledged his suffering and instead justified the decision on questionable (if not downright flimsy) grounds. One commentator went so far as to call the opinion one of the "meanest" Supreme Court decisions ever written. (4) The case will have far-reaching implications for prosecutorial accountability under Brady and the ability of criminal defendants to assert civil rights claims against prosecutors' offices under [section] 1983.

Prior to the Supreme Court decision, respondent John Thompson, in discussing his conviction, said, "They call it malfeasance of office and get a slap on the wrist while I'm up at Angola [the Louisiana State Penitentiary] on death row for 18 years. Somebody help me understand this." (5) But practitioners and judges hardly have any clearer idea of when prosecutors can be punished for their misconduct. The Court's current approach to prosecutorial liability under [section] 1983 is a mess. The decisions in this area of law have made it more difficult for defendants to prove violations of their constitutional rights while increasing the strength of prosecutors' immunity for their actions (both individually and collectively as an office). Even in cases like Connick, where everyone agrees that a constitutional violation occurred, no punishment results. Without enforcement, Brady and other rules designed to protect a defendant's rights are effectively negated.

Currently, a former defendant bringing a [section] 1983 claim against a prosecutor's office must show a pattern of constitutional violations within the office that proves that: (1) the district attorney failed to properly train his or her subordinates and (2) that failure to train directly caused the violations. (6) But the Court has never clearly defined what series of events in a prosecutor's office actually constitutes a "pattern." In lieu of a pattern, some case law suggests that municipal liability for failure to train can result from a "single incident," (7) if the need to train was "so obvious" (8) that the municipal policymakers responsible for training were deliberately indifferent in not training their subordinates. (9) However, Connick appears to reject the single-incident-liability approach, at least in the case of prosecutors' offices. (10)

Part I of this Comment will examine the Connick decision. This Part will walk through the facts of John Thompson's original case, the procedural history of Connick itself, the majority's reasoning in Connick, and the minority's counterpoints. Part II will examine the Supreme Court's case law on prosecutorial immunity and municipal liability--precedent that ultimately shaped the Connick decision. Part III will discuss the problems with the rule established by Connick and the other cases. Part IV will assess alternatives to requiring the Supreme Court to overhaul its precedent in this area, including stricter ethical sanctions for prosecutorial misconduct and internal structural reform of prosecutors' offices. Finally, Part V will argue that the Supreme Court should overrule its precedent and adopt absolute immunity for prosecutors to put an end to the current confusion in the law.

1. CONNICK V. THOMPSON

   John Thompson spent eighteen years in prison--fourteen of them on death row--for a crime that he did not commit. (11) He was charged with the murder of the son of a prominent New Orleans businessman in 1985. (12) John Thompson's face covered the New Orleans press. (13) A local father whose three minor children had been victims of a recent attempted armed robbery showed them a newspaper and asked if Thompson was the man who had robbed them. (14) They identified him as their attacker. (15)

   Four prosecutors from the Orleans Parish District Attorney's Office handled Thompson's two cases. (16) Assistant District Attorneys James Williams and Gerry Deegan were assigned to the armed robbery, while Williams and Eric Dubelier were assigned to the murder. (17) Assistant District Attorney Bruce Whittaker approved the armed robbery indictment. (18) Although Dubelier and Williams were two of the highest ranking attorneys in the office at the time, none of the prosecutors had even five years of experience as a prosecutor. (19) Together the prosecutors made the strategic decision to proceed with the armed robbery trial first. (20) If Thompson were convicted of armed robbery prior to the murder trial, he would be vulnerable to impeachment if he took the stand in his defense at the murder trial. (21)

   The armed robber left blood behind on the pant leg of one of his victims. (22) A crime lab technician took a swatch of the bloodied fabric from the pants and sent it to the crime lab one week before Thompson's armed robbery trial. (23) Whittaker received the report from the crime lab, and placed it on Williams's desk, but Williams denied ever seeing it in his later testimony at trial. (24) Meanwhile, Deegan checked out all of the physical evidence in the case from the police property room on the first day of trial, including the bloody swatch. (25) But when he checked all of the evidence into the courthouse property room, the swatch was missing. (26) Thompson's defense counsel never learned of its existence, and Thompson was convicted of the armed robbery. (27) Because of this conviction, he did not testify at his later murder trial, and later in 1985 he was also convicted of first-degree murder. (28)

   In 1994, Deegan was dying. (29) He confessed to his friend and fellow prosecutor Michael Riehlmann that he had hidden exculpatory blood evidence during Thompson's armed robbery trial. (30) Riehlmann did not tell anyone about this conversation for five years. (31)

   In 1999, Thompson's private investigator--in a last-ditch effort to save his client from being executed--reexamined all of the prosecution's files on Thompson's cases. (32) He uncovered the crime lab report on the blood evidence from the armed robbery. (33) The robber's blood was Type B. (34) Thompson is Type 0. (35) When the new information came forward, a judge vacated the armed robbery conviction and in 2003, when he was retried for murder, Thompson was found not guilty. (36)

   After his release from prison in 2003, John Thompson filed suit against the Orleans Parish District Attorney's Office, District Attorney Harry Connick Sr., James Williams, and others under 42 U.S.C. [section] 1983. (37) Thompson alleged that the defendants violated his constitutional rights under Brady (38) by withholding the crime lab report. (39) Thompson put forward two theories. (40) First, he claimed that the district attorney's office had an unconstitutional Brady policy. (41) In the alternative, he alleged that regardless of what Orleans Parish's official Brady policy was, the violation resulted from Connick's deliberate indifference to the need to train his subordinates in proper Brady procedure. (42) In district court, the jury rejected the first claim, but agreed with Thompson that Connick was deliberately indifferent to the need to train. (43) They awarded Thompson $14 million in damages (44)--$1 million for each year that he was on death row. (45)

   The Court of Appeals for the Fifth Circuit, sitting en banc, divided evenly on the failure-to-train issue, thus upholding the district court judgment. (46) The Supreme Court then granted certiorari "to decide whether a district attorney's office may be held liable under [section] 1983 for failure to train based on a single Brady violation." (47) In a 5-4 decision, the Court held that an office could not be held liable based on a single Brady violation. (48)

   Justice Thomas wrote the Court's opinion. (49) He reasoned that Thompson's claim could not succeed because he did not prove a pattern of violations that would indicate a failure to train prosecutors. (50) Moreover, Thompson did not prove that the single violation in his case was sufficient to give rise to liability. (51)

   Consistent with precedent, the opinion stated that "[a] pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." (52) Thomas stated that Thompson did not try to prove a pattern. (53) Yet Thompson did reference four convictions from Orleans Parish that were overturned by Louisiana courts in the ten years prior to his armed robbery trial due to the failure to disclose exculpatory evidence. (54) Those cases, however, were not "similar to the violation at issue" in Thompson's case because the disputed evidence was not scientific, like Thompson's blood evidence was. (55)

   The single Brady violation at issue in the case was also not enough on its own to establish liability. (56) In Canton v. Harris, the Court hypothesized a situation in which specific legal training was so clearly needed that the failure to give employees that training would necessarily lead to constitutional violations. (57) Here, Thomas reasoned, the assistant district attorneys already had the legal training that they needed. (58) They had all received a law license, graduated from law school, and passed the bar examination. (59) Continuing education classes were readily available, (60) and...