Friday, November 11, 2011

Deliberately Indifferent Training and Brady Violations

John Thompson spent 18 years in prison following convictions for attempted armed robbery and murder. A month before his scheduled execution, an investigator hired by Thompson’s lawyers made a discovered a lab report which exonerated Thompson of the attempted robbery charge.  The report contained results of a test conducted on blood left by the robber on the clothing of one of the victims. The robber had type B blood. Thompson’s is type O. The prosecutor in Thompson’s attempted robbery case deliberately withheld the test results from defense counsel despite Brady v. Maryland  in which the Supreme Court held that a prosecutor has a duty to disclose exculpatory evidence to the accused. At Thompson’s subsequent trial on the murder charge, he understandably declined to testify so that the attempted robbery conviction could not be used for impeachment purposes. In course both convictions were overturned. A second trial on the murder charge produced a defense verdict after 35 minutes of jury deliberation.

When Thompson sought compensation from the District Attorney’s office, his legal options were limited. The actual prosecutors who committed the Brady violations were immune from liability. Thompson could only successfully bring a §1983 action against Connick, the New Orleans District Attorney, in his official policymaker capacity, under a theory of municipal liability. Thompson could not sue Connick on the basis of respondeat superior, disallowed by Monell v. New York City Department of Social Services. A municipality is subject to liability under § 1983 only when the violation of the plaintiff's federally protected rights was caused by enforcement of a municipal policy, a custom or practice, or a decision of a final policymaker. 

Under City of Canton, deliberately indifferent training may also give rise to §1983 liability. §1983 municipal liability may be based upon deliberately indifferent training that was the moving force of the violation of the plaintiff's federally protected rights. To make out such a claim, the plaintiff must demonstrate specific training deficiencies, and either a pattern of constitutional violations of which policymaking officials are charged with knowledge, or a showing that training is obviously necessary to avoid constitutional violations. Thompson sued under the Canton supported theory that additional training of the District Attorney’s employees was obviously necessary to prevent Brady violations.

The overwhelming evidence provided by Thompson was breathtaking. The jury found for him in less than thirty minutes to the tune of 14 million. The Fifth Circuit affirmed but the Supreme Court reversed. The Court did not take issue with the jury instructions or with the facts as presented. So what could possibly have been the problem? The majority opinion essentially claimed it is impossible for a jury to ever find deliberate indifference when it comes to prosecutors and Brady violations, regardless of the facts.  Prosecutors are already trained in the law.  Therefore, it can never be obvious to a policymaker (the DA) that additional training in the law is needed to prevent constitutional violations on the part of subordinates. As such, deliberate indifference can never be established.

The opinion ignores the evidence in the record, shows contempt for the concept of jury fact-finding, creates a new, categorical exemption from current law for prosecutors (without admitting it), and leaves a wrongly accused man who spent 14 years wasting away on death row with nothing. 

Will Ellis

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