Thursday, October 7, 2010

Connick v Thompson: the "other" case the Supreme Court heard yesterday

Snyder v. Phelps was the center of attention yesterday at the Supreme Court, but it was not the only important case the Court heard. The other important case before the court was Connick v. Thompson, a case in which the U.S. Court of Appeals for the 5th Circuit had affirmed a $14 million award for the wrongful conviction and death sentence of the defendant in a murder case.

The basis of the claim is that the defendant district attorney's office failed to train its lawyers on their legal and ethical duty to disclose exculpatory evidence, which resulted in the wrongful conviction of the then-defendant-now plaintiff. The opinion of the Court of Appeals is available here.

When originally reported in the Blog of the Legal Times, District Attorney Leon Cannizaro Jr. was said to have appealed the ruling to the Supreme Court, "asserting that upholding the 5th Circuit's decision "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct.""

This is a strange argument since the original claim was not based on vicarious liability at all but on the conduct of the district attorney's office itself. According to a story in Slate magazine, at one point, when questioned under oath the then-district attorney Harry Connick, Sr. could not articulate the Brady rule and after listening to two days of testimony about how Connick ran his DA's office, with the acting prosecutors blaming each other and fumbling over conflicting and inaccurate explanations of what Brady requires, a federal court jury in New Orleans awarded Thompson a $14 million verdict in 2007. The jury found that his 18 years behind bars (14 of which he spent in solitary confinement on death row) were caused by Connick's deliberate failure to train his prosecutors on their obligations to turn over exculpatory evidence. According to the Innocence Project, a national organization that represents incarcerated criminals claiming innocence, 36 men convicted in Orleans Parish during Connick's tenure as DA have made allegations of prosecutorial misconduct, and 19 have had their sentences overturned or reduced as a result.

The petitioners' response has been to argue that prosecutors should have absolute immunity from suit— because the plaintiff did not show there was a "pattern" of violations of the duty under Brady. They argued repeatedly that the case was the result of a single violation and in response to some questions during the oral argument appeared to argue that, even if there was a pattern of conduct, there could never be liability for the first offense.

The misunderstanding about whether the case is about vicarious or direct liability aside, the case will have important implications for the concept of prosecutorial immunity and the reach of the possible civil liability in tort and of the ethical responsibilities of the DA's office and its prosecutors.

The case also has another interesting connection to another issue of professional responsibility: the original case against the defendant was the underlying case in In Re Riehlmann (La 2005) often discussed in connection with the duty to disclose attorney misconduct under Rule 8.3. This was the case in which a former prosecutor, upon learning he was dying of cancer, finally decided to unburden himself and confess to a friend (Riehlmann) that he (the prosecutor) had intentionally withheld exculpatory evidence in a case that resulted in the imposition of the death penalty. That case was the case against Thompson, the then defendant-now plaintiff who eventually got the $14 million for the wrongful conviction.

So, let's recap. In 1985, a prosecutor withholds exculpatory evidence intentionally in a case against a man named Thompson, who is then convicted and sentenced to death. In 1994, the prosecutor confesses what he did to his friend Riehlmann. Riehlmann does nothing about this for 5 years. After the exculpatory evidence is discovered in 1999, Riehlmann reveals what the former DA had told him. (Years later, Riehlmann is disciplined for his own misconduct in failing to disclose the prosecutor's misconduct). Eventually, after spending almost 20 years in death row for a crime he did not commit, Thompson's conviction is vacated, he is re-tried and found not guilty. Thompson then sued for damages arguing a violation of this rights under 42 USC Sec 1983 and was awarded $14 million. The Court of Appeals affirmed and now the Supreme Court will review the case.

Interpreting the questioning by the justices during yesterday's oral argument, concludes that the "Supreme Court justices on Wednesday appeared ready to give the green light to efforts by a New Orleans man to win compensation for prosecutorial misconduct that put him behind bars for more than two decades for a murder he did not commit."

For a detailed account of the story behind the case go to Slate.

For more on the case go to the Legal Ethics Forum, USA Today, the Washington Times, the Boston Herald, the, Main Justice, and the the Washington Post. (Thanks to Scotus Blog for these links).

For the actual transcript of the oral argument go here.

For all the briefs, the opinion of the Court of Appeals and other legal documents go here.

UPDATE Oct 8: Go here to listen to the oral argument.

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