I’m sure you’ve heard it before: ignorance of the law is no excuse. Didn’t see the speed limit sign? Too bad. Not sure if you could deduct the cost of that cell phone used for personal and business purposes? Tax fraud. The law doesn’t really care what you think about it: if you break the law, you suffer the consequences, whether in civil liability or in criminal punishment. That’s what the rule of law means.

With an exception.

John Thompson had a bad couple of years, as summarized by the Supreme Court’s Connick v. Thompson opinion released earlier this week:

The Orleans Parish District Attorney’s Office now concedes that, in prosecuting respondent John Thompson for attempted armed robbery, prosecutors failed to disclose evidence that should have been turned over to the defense under Brady v. Maryland, 373 U. S. 83 (1963). Thompson was convicted. Because of that conviction Thompson elected not to testify in his own defense in his later trial for murder, and he was again convicted. Thompson spent 18 years in prison, including 14 years on death row. One month before Thompson’s scheduled execution, his investigator discovered the undisclosed evidence from his armed robbery trial. The reviewing court determined that the evidence was exculpatory, and both of Thompson’s convictions were vacated.

Oops! Turned out that, in the investigation of the first attempted robbery, a blood test performed by the crime laboratory showed that the perpetrator had a different blood type, but no one ever bothered to tell Thompson that. Even before that fact came out, one of the former assistant district attorneys had revealed to a colleague that he had “intentionally suppressed blood evidence” in the trial, but neither of them bothered to reveal it until after everything else cannot.

Can’t the District Attorney’s Office just tell Thompson “my bad” and then we’ll let bygones be bygones?

 

Apparently not, and Thompson was presumptuous enough to believe that eighteen years of his life, fourteen of them on death row, was worth something, and that those years should not have been taken away from him, without recourse, compensation, or responsibility, just because several prosecutors chose not to follow the most basic duty a prosecutor has, which is to serve the interests of justice, including by being aware of and following Brady, one of the most important Supreme Court criminal opinions of the last century. A jury agreed, and awarded him $14 million.

But there’s a hitch. (Justice always gets caught up in hitches.) As I’ve written before when police officers needlessly shot a man to death for the crime of sports betting:

There’s no constitutional right to a competent police force. Instead, there are only constitutional rights to deprivation of life without due process, and rights to be free of excessive governmental force.

How much “process” is “due?” Not a lot. How much “force” becomes “excessive?” A lot more than most people think.

You generally can’t sue state governments at all; we have legal fictions that preclude you from doing it. You have to use a legal fiction and sue the government’s employees individually (even though the government will indemnify them), and watch out for the legal fiction of qualified immunity, which shields government employees from liability unless they violated a “clearly established” statutory or constitutional right.

It’s strange, unfair, and ridiculous, and so it causes people whose civil rights have been violated to jump through hoops, like the Supreme Court noted:

Thompson then brought this action against the district attorney’s office, Connick, Williams, and others, alleging that their conduct caused him to be wrongfully convicted, incarcerated for 18 years, and nearly executed. The only claim that proceeded to trial was Thompson’s claim under§1983 that the district attorney’s office had violated Brady by failing to disclose the crime lab report in his armed robbery trial. See Brady, 373 U. S. 83. Thompson alleged liability under two theories: (1) the Brady violation was caused by an unconstitutional policy of the district attorney’s office; and (2) the violation was caused by Connick’s deliberate indifference to an obvious need to train the prosecutors in his office in order to avoid such constitutional violations.

There are magic words in there that jump out at civil rights lawyers. Deliberate indifference leading to an unconstitutional policy of failing to train government officers. Those are the magical words the Supreme Court has told us civil rights lawyers to chant whenever we want to sue a municipality or municipal entity (like a district attorney’s office) for constitutional violations, like so:

A municipality or other local government may be liable under [42 U. S. C. §1983] if the governmental body itself “subjects” a person to a deprivation of rights or “causes” a person “to be subjected” to such deprivation. See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 692 (1978). But, under §1983, local governments are responsible only for “their own illegal acts.” Pembaur v. Cincinnati, 475 U. S. 469, 479 (1986) (citing Monell, 436 U. S., at 665–683). They are not vicariously liable under §1983 for their employees’ actions. See id., at 691; Canton, 489 U. S., at 392; Board of Comm’rs of Bryan Cty. v. Brown, 520 U. S. 397, 403 (1997) (collecting cases).

Plaintiffs who seek to impose liability on local governments under §1983 must prove that “action pursuant to official municipal policy” caused their injury. Monell, 436 U. S., at 691; see id., at 694. Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. See ibid.; Pembaur, supra, at 480–481; Adickes v. S. H. Kress & Co., 398 U. S. 144, 167–168 (1970). These are “action[s] for which the municipality is actually responsible.” Pembaur, supra, at 479–480.

So Thompson chanted these magic words to the judge, who allowed him to take his case to the jury, which awarded him $14 million.

It was a straightforward case. The district attorneys prosecuting his case made a mockery of justice and intentionally concealed exculpatory evidence — as they had done in several other cases — and then compounded the problem by continuing to conceal it until after Thompson’s private investigator uncovered it.

None of those facts, proven to a jury, matter to the Supreme Court, which held:

Connick argues that he was entitled to judgment as a matter of law because Thompson did not prove that he was on actual or constructive notice of, and therefore deliberately indifferent to, a need for more or different Brady training. We agree.

So Thompson lost. “My bad” and it’s over.

As witty as I like to be on the blog, the Supreme Court’s opinion in Connick v. Thompson, released two days ago, is sad, sad the same way a lot of civil rights lawsuits are. John Thompson’s government turned against him, and failed to provide him with one of the most basic due process rights afforded to criminal defendants, the right to review all exculpatory evidence in his favor. Prosecutions are about justice, truth, and innocence versus guilt, right? It’s not just that prosecutions shouldn’t be about winning — it’s that, by law, winning is not supposed to be any part of it.

Factual guilt is everything, and the district attorney’s office knew John Thompson wasn’t factually guilty. The violation of constitution rights is self-evidence; it is only through legal fictions heaped upon legal fictions that Thompson had to style his claim as an allegation of deliberate indifference leading to an unconstitutional policy by the district attorney’s office of failing to train its prosecutors. But those legal fictions were enough for the Supreme Court, which blithely ignored the substance of the case in service of the legal fiction that the district attorney’s office isn’t responsible for its district attorneys unless it is “deliberately indifferent” to the “policies” affecting those district attorneys. It’s like if we gave drunk driving a free pass so long as the drunk’s spouse had a policy against intoxication.

I don’t have the heart to pick apart the shoddy reasoning of the slim majority of the Supreme Court that believes it’s better for John Thompson to have lost most of his life to prison than for New Orleans to pay the dues that a New Orleans jury told it to pay. But I can’t help revisiting this key line from the opinion, part of the explanation for how the Supreme Court, which never heard John Thompson or anyone else in the case, just knew that the DA’s office wasn’t deliberately indifferent:

A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations in “the usual and recurring situations with which [the prosecutors] must deal.”

Read that again: a district attorney has no constitutional obligation to ensure that the prosecutors under his or her command actually know the first thing about constitutional law. He and his city government are free from any responsibility to train the individuals vested with one of the greatest and most abuse-prone powers in the United States, the prosecutorial power.

If you want to work at Dunkin Donuts, you have to get trained on the bagel slicer. Would it be so wrong to require that prosecutors get training on constitutional law?

Until then, we can add to the list: there’s no constitutional right to a competent police force, and, now, no constitutional right to a district attorney’s office with a policy prohibiting “intentionally suppressing evidence.”

Ignorance of the law is no excuse unless, of course, you are the law. Then it’s policy.

  • joe

    Great post on a sad story. I posted a quote from you at one of my “side blogs,” Lawyer Says: http://lawyersays.tumblr.com/post/4233374313/as-witty-as-i-like-to-be-on-the-blog-the-supreme

  • It’s amazing that things like this still happen… thanks for posting

  • Margedga

    Although this is an old posting, I can’t help but wonder what the ABA and other groups are DOING about this recurrent problem. I read lots of commentary in news articles, and similar blogs, but seems that more MUST be done to stop this, and similar court decisions that now must rely on the Supreme’s supremacy!!! Perhaps the general public is not aware how easy it would be to set up one person – or persons? I am from New York State and know of a few cases where similar has occurred, lives ruined, etc. Are there behind-the-scenes activities in which us non-lawyer citizens can become involved that would assist in preventing this from snowballing – or further reinforcing already recalcitrant prosecutors or lawyers from doing the same??? Would love to hear from someone. Marge