Questioning Protection

U.S. Supreme Court agrees to take another look at prosecutorial immunity

Pennsylvania Law Weekly
April 13, 2010

John Thompson spent 18 years in prison for a robbery and murder he did not commit.

In fact, he was only months away from execution while on Louisiana's death row. Thompson's fight for freedom was a long and tortured story of misdeeds, wrongful convictions and delay.

Thompson's case included after-discovered evidence, prosecutorial misconduct, a death-bed confession, a last-minute stay of execution, exoneration and a multi-million dollar verdict. It had all the makings of a Hollywood blockbuster. In fact, The Nine Lives of John Thompson, starring Matt Damon, is already in production.

The full story of John Thompson and the legacy of his prosecution, conviction and exoneration, is unfinished, however.

Last month, the U.S. Supreme Court agreed to hear the Orleans Parish District Attorney's Office appeal to John Thompson's $14 million verdict in Connick v. Thompson. The suit alleged that Thompson's civil rights were violated when the district attorney's office failed to train prosecutors regarding their responsibilities under Brady v. Maryland.

In Brady, the U.S. Supreme Court declared that the failure to disclose evidence favorable to the accused violated due process where the evidence was material to either guilt or punishment. In the 1972 case Giglio v. United States, the high court expanded on Brady, holding that a prosecutor's failure to disclose a promise of leniency made to a material witness that could be used for purposes of impeachment violated due process.

In this case, the Brady question is raised in the context of absolute immunity for prosecutors. Absolute immunity has long protected prosecutors from litigation attacking the exercise of their core public functions. Without absolute immunity, a prosecutor may be subject to an unnecessary depletion of resources and the unavoidable distractions that come with defending countless challenges to the decision-making process.

Last term, the U.S. Supreme Court decided Van de Kamp v. Goldstein. The court unanimously extended absolute immunity to claims that supervising prosecutors failed to train subordinate prosecutors on their obligation to disclose impeachment evidence as required by Giglio. The high court held individual prosecutors are immune from suits alleging failure to "adequately train and supervise deputy district attorneys" on disclosure obligations, and "failure to create any system" for managing impeachment evidence.

The Supreme Court is now being asked to decide whether a single-incident failure-to-train claim that is covered by absolute immunity for an individual prosecutor pursuant to Van de Kamp can stand against a district attorney's office pursuant to a 42 U.S.C. 1983 civil rights action.

The facts of Thompson are compelling.

Thompson and an accomplice were arrested for the 1984 robbery and murder of a man outside his New Orleans home. As a result, Thompson's photograph was in the newspaper.

The victim of a separate robbery identified Thompson, through the newspaper, as her assailant. Thompson was arrested for the second robbery. The robbery investigation revealed blood on the clothing of one of the victims. The blood was earmarked for testing.

The same two assistant district attorneys were assigned to Thompson's pending murder and robbery trials. They made a tactical decision to try the robbery before the murder. The rationale was that a robbery conviction against Thompson would keep him from testifying at his murder trial. A robbery conviction could also be useful in obtaining a death sentence at the murder trial.

The blood from the robbery was tested on the eve of trial and found not to be that of Thompson. The blood test was not provided to the defense as required by Brady. Instead, the test was buried and a third prosecutor actually removed the blood stained clothing from the evidence room.

The trials proceeded as planned by the district's office. Thompson was convicted of robbery, he did not testify during his murder trial and the robbery victims testified during the penalty phase following his murder conviction. Thompson was sentenced to death.

A Buried Blood Test
Fast forward 14 years and Thompson was on death row. He was scheduled for execution when a defense investigator found the buried blood test. A subsequent test of Thompson's blood eliminated him as the offender in the robbery. It was then revealed that the assistant district attorney who removed the blood evidence was stricken with terminal cancer and made a death bed confession regarding the disposal of the evidence.

Thompson's murder conviction was overturned by the Louisiana Court of Appeals due to the fact that his robbery conviction — now overturned — deprived him of his right to testify in his own defense during his murder trial. Thompson was awarded a new trial and subsequently found not guilty.

He sued the Orleans Parish District Attorney's Office. The jury found that the district attorney's office showed "deliberate indifference" to establishing policies and procedures to avoid unconstitutional Brady violations. The jury awarded Thompson $14 million and an additional $1 million in legal fees. A divided en banc panel of the U.S. Court of Appeals for the Fifth Circuit affirmed the verdict.

The issue before the Supreme Court is whether a single-instance of failure-to-train gives rise to municipal liability, in this instance a district attorney's office, and whether such a claim is compatible with the court's previous decision affirming absolute immunity for failure-to-train as it applied to the occupants of that municipal body.

The U.S. Supreme Court has recognized municipal liability for failure-to-train under Monell v. Department of Social Services, City of Canton v. Harris and Board of the County Commissioners of Bryan County v. Brown.

Beyond the issue of municipal liability, the U.S. Supreme Court has shown a recent interest in prosecutorial immunity.

Last term, it was Van de Kamp and another major prosecutorial immunity case, Pottawattamie County v. McGhee, was argued earlier this term before the parties reached a settlement.

The limits of prosecutorial immunity have garnered the attention of prosecutors across the country. The National District Attorneys Association filed a brief expressing concern that liability based on a single-incident of failure-to-train created an "alarming prospect" that the strong tradition of prosecutorial immunity may begin to erode.

Why are prosecutors concerned?

Holding an office liable for the conduct of its occupants, when those occupants individually have absolute immunity seems to abrogate the very holding of Imbler v. Pachtman and Van de Kamp. If a district attorney's office were subject to the same litigation that is barred against its employees, how are those individual prosecutors protected from the "judgment-distorting burdens of litigation" protected through Imbler and Van de Kamp?

In Thompson, the very prosecutors who committed the egregious acts of withholding and destroying exculpatory evidence would be protected by absolute immunity. Their office, on the other hand, would not be protected by immunity on the premise that the office failed to train when, in fact, there is scant evidence that training would have had any impact on preventing the intentional misdeeds by the prosecutors involved in this glaring injustice.

Elected district attorneys need to take heed of the growing volume of civil rights suits alleging, among other things, "deliberate indifference" to training and establishing office policies regarding the intricacies of Brady and Giglio, and the constitutional implications of failing to meet those standards, and the liability issues that could follow.