No Comment — April 1, 2011, 2:53 pm

The Supreme Court Stands Tall for Misbehaving Prosecutors

Can prosecutors press a criminal case against a man by suppressing the existence of forensic evidence that shows him to be innocent, without themselves being held accountable? “Yes,” says the Supreme Court, by a 5-4 decision (PDF), in a ruling by Justice Clarence Thomas. It’s a complicated story, but the core issue is fairly straightforward: prosecutorial accountability for serious misconduct—in this case, misconduct that put an innocent man on death row, and at one point within days of execution.

In 1985, John Thompson was arrested and charged with two separate crimes: a murder and an attempted armed robbery that took place three weeks later in New Orleans. Prosecutors opted for two separate trials, beginning with the robbery. Their thinking was likely tactical. If they got a conviction at the robbery trial, they could use that conviction against him at the murder trial, improving their chances at obtaining a conviction.

Two days before Thompson’s robbery trial was slated to begin, however, the prosecutor handling the case got a crime lab report showing that the perpetrator had left blood behind at the scene, and the blood was not Thompson’s. The law required the prosecutor to turn this report over to Thompson’s attorneys. Instead, he suppressed it and pressed forward with his case. The jury found Thompson guilty of the robbery. That conviction had a decisive impact on the second trial, too. Thompson was warned that if he testified in his own defense, the prosecution would be entitled to inform the jury of the robbery conviction and argue that he was not a truthful or reliable witness. Thompson therefore did not testify. The jury, disbelieving his alibi for the murder, perhaps because he failed to testify in support of it, convicted him and gave him a death sentence.

Just before Thompson was set to be executed in 1999, his attorney learned of the suppressed lab report and the grave misconduct of the prosecutor. Armed with this, Thompson’s convictions for both the robbery and the murder were overturned. When he was retried for murder in 2003, a jury, armed with much more testimony and evidence, concluded that he was innocent.

The question is whether Thompson is entitled to be compensated for the imprisonment and anguish to which he was subjected as a result of the gross misconduct of a prosecutor. A Louisiana jury decided that he was, and awarded Thompson $14 million in damages. On appeal, the extremely conservative Fifth Circuit divided evenly, affirming the district court. But Clarence Thomas and four of his colleagues on the bench have overturned that award, leaping to the defense of misbehaving prosecutors and creating a new standard that may render them effectively unaccountable.

The majority wants to make the suppression of the lab report into a momentary failing of a single man. Thomas concludes that the prosecutors are guilty of only a single “Brady violation”—that is, a violation of the duty to turnover exculpatory evidence—and that this is not enough to justify the defendant’s case against them. But in fact, the suppression continued over many years and involved faulty judgments by a number of people in the prosecutor’s office. Moreover, misconduct of Orleans Parish law enforcement officials has emerged as an embarrassment to the United States on the world stage, figuring even in discussions before monitoring human rights bodies and triggering federal prosecutions. Justice Ginsburg has the better of the argument, pointing to the majority’s dodgy presentation of the facts:

What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.

The majority opinion turns a blind eye to the facts of the case as found by the Louisiana jury. Actually hearing the evidence first hand, they had no difficulty determining that the prosecutor fully intended to do what he did and persisted in doing it.

In America today, violations of Brady are epidemic, and they often produce the conviction of innocent defendants like Mr. Thompson. The court has effectively given a wink and a nod to rogue prosecutors, telling them they can put their thumb on the scale of justice from time to time and get away with it. But bad convictions erode confidence in the justice system, and often as not they let the real culprit run free.

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Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

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 Some names and identifying details have been changed. 

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The baby was due in November, when Ashley, who was a nurse, hoped to be enrolled in a graduate program to become a nurse practitioner. Getting pregnant as a teenager had forced her to put that dream on hold, but she had thought that she was finally ready; she had even submitted her application shortly before the March 15 deadline. For the first time in her adult life, Ashley felt as if her plans were coming together. Then she missed her period.

It would be too difficult to attend school as a single mother of two, Ashley knew. She had made an appointment for three weeks from now at the nearest abortion clinic, in Billings, Montana, 318 miles away. But just a week and a half ago, her husband had said he wanted to get back together and offered to raise the child as his own. Was it a sign that she was meant to continue the pregnancy? As a rule, Ashley approached her problems with resolve. She was capable and tough; she liked shooting guns and lifting weights. She kept track of her stats and checked off her goals as she achieved them one by one. Yet the dilemma before her had shaken her confidence. She leaned back and turned to watch the ultrasound screen. The black-and-white image danced. A sharp, fast thumping emerged from the machine. As Degen removed the wand, Ashley wiped the corner of her eye.

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