- Current Issue
SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
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.
More from Scott Horton:
No Comment — November 4, 2013, 5:17 pm
An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath
No Comment — August 12, 2013, 7:55 am
How will the Obama Administration handle Edward Snowden’s case in the long term?
No Comment — July 29, 2013, 11:36 am
Is it possible to simply disband the partisan FISA court?
Chances that a deep breath inhaled today will contain a molecule from Julius Caesar’s dying breath:
Innumeracy: Mathematical Illiteracy and Its Consequences, by John Allen Paulos, Hill and Wang (N.Y.C.)
The earth once had three moons; the two lost moons may have crashed into the surviving moon, or been sucked into the sun, or flung out of the solar system to drift through deep space.
In Florida, an 87-year-old World War II veteran flying touch-and-go drills in a Cessna collided with an airborne skydiver. “There was a ‘woof’ sound,” said a witness, “like falling on your face into your pillow.”
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“American politics has often been an arena for angry minds.”