Connick v. Thompson: U.S. Supreme Court Allows Prosecutors to Hide Evidence Favorable to the Accused without Consequence
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Thompson spent over 18 years in a Louisiana prison, 14 isolated on death role, after a prosecution described as fundamentally unfair by prosecutorial design.
In Thompson’s struggle for justice, prosecutors intentionally withheld favorable evidence, which indicated he was innocent, prior to trial, during trial and throughout the years he spent in prison. The Supreme Court has now held this was not a civil rights violation.
Our criminal justice system, including its court proceedings, should be an adversarial process in which the “search for truth” entails vigorous, but ethical, advocacy, with the “evidence” put to every possible challenge. But, the truth is sometimes like that proverbial needle in the haystack: it’s hard to find.
Both sides in a criminal case, the prosecution and the defense, start at the same point: the haystack. The judge sits on a bench nearby to make sure that the rule of law is followed and that neither side has an illegal or constitutionally prohibited advantage. But sometimes, the judges are cut from a pro-prosecution cloth; these judges tend to forget they are put in place to ensure that the process is fair and that the law is followed, regardless of the outcome of the case. Whether intentionally or not, these judges tend to allow the prosecution to lie and cheat, often telling frustrated defense lawyers to “take it up on appeal.”
We don’t know why some prosecutors lie and cheat, especially considering, in a majority of the cases, they have a factual and procedural advantage throughout the process. We suspect it’s rooted in a desire to “make the bad guy pay” while simultaneously building a career resume with “wins.” We all saw the kids at the playground who lied and cheated to get the upper-hand; they had to win, to be first, and to stand out as the best, no matter the means.
Unfortunately, some of these rogue prosecutors come by cheating quite naturally and are good at it; they find rules, ethics, and codes of professional behavior binding—a restriction of their self-anointed role of “convicting at any costs.” We have encountered plenty in the past and are quite confident we will encounter even more in the future. The reason we can be so sure about this is because our U.S. Supreme Court recently gave “rogue prosecutors” a license to lie and cheat with impunity.
Connick v. Thompson
The case involved a former condemned inmate named John Thompson who was railroaded to Louisiana’s death row where he spent 18 years in prison, 14 of those on death row for a murder that he did not commit, because a New Orleans assistant district attorney lied and cheated. We blogged last fall about Thompson’s case and predicted that Thompson, at best, faced at uphill battle before the Supreme Court.
After John Thompson proved his innocence and unmistakably established that he had been framed by an assistant district attorney, he filed a multi-million dollar civil rights lawsuit against then New Orleans District Attorney Harry Connick and was awarded a $14 million dollar damage judgment against the Connick’s office, one million dollars for each wrongful year he spent on death row. The civil damage award was upheld through the federal court system until it reached the Supreme Court where it was reversed by a Court that has a long history of protecting prosecutorial misconduct. The facts of the Thompson case were detailed in our post last fall and we repeat them here:
The Factual Basis
“Thompson’s horrific saga in the criminal justice system began in December 1984 when prominent New Orleans businessman Raymond T. Liuzza, Jr. was killed outside his home. The Orleans Parish District Attorney’s office, then headed by Harry Connick, Sr., was under considerable pressure to see the crime solved and its perpetrator(s) prosecuted. In the heat of the Liuzza investigation, Jay LaGarde and his two siblings faced an attempted armed robbery/carjacking outside the city’s Superdome. Shortly after the LaGarde attempted robbery (January 1985) Thompson and a co-defendant named Kevin Freeman were arrested for the Liuzza murder.
“The Thompson/Freeman arrest set in motion a sequence of events that would lead to gross prosecutorial misconduct by Connick’s office. LaGarde’s father saw Thompson and Freeman’s photographs in the local newspaper and figured they were probably the individuals who had tried to rob his children. He contacted Connick’s office about his suspicions which led to Thompson and Freeman being charged with armed robbery.
“The armed robbery charge proved to be a tactical godsend to prosecutors handling the Liuzza murder case. They decided to try Thompson first on the robbery charge which would allow them to use that conviction to help secure a death penalty verdict in the Liuzza case. Thompson was convicted of the attempted robbery based solely on the identification of LaGrade and the two siblings. He was sentenced to the maximum 49 ½ years. His defense attorney was not aware that prosecutors had in their possession evidence that would have exonerated Thompson on the robbery charge—and prosecutors deliberately withheld, and concealed, that evidence from the defense.
“Three weeks after the LaGarde robbery trial Thompson was put to trial for Liuzza’s murder. Kevin Freeman, who was Liuzza’s actual killer, testified for the prosecution, lying to the jury by saying he saw Thompson shoot Liuzza. Thompson was found guilty as charged. At the penalty phase, the LaGarde robbery victims testified with one victim telling the jury she believed Thompson would have killed the three siblings had her brother not wrestled the gun away from him. Prosecutors told jurors that since Thompson was already serving a “near-life sentence” on the robbery charge, the death penalty was the only appropriate verdict to protect society. The jury agreed. Thompson was carted off to death row to await his lethal fate.
“After many years of post-conviction efforts to overturn the death penalty verdict, highlighted by multiple requests for any Brady material, Thompson faced imminent execution in 1999. One month before his execution, Thompson’s appellate attorneys independently, without any assistance from the District Attorney’s office, discovered a crime lab report concerning blood evidence found on LaGarde’s pants leg. Prosecutors knew the blood belonged to the robber—and they also knew it did not belong to Thompson. The report was irrefutable evidence that they had wrongfully convicted Thompson for the LaGarde robbery and they were not about to disclose this evidence to his defense counsel.
“With this belated discovery, the courts ordered Connick’s office to make all its files available to Thompson’s appellate counsel. They found a treasure trove of exculpatory evidence, including evidence that matched Freeman to the LaGarde robbery. This newly discovered evidence resulted in a new trial for Thompson in 2003 at which he was acquitted following only 35 minutes of deliberation. Thompson, through new attorneys, filed a 42 U.S.C. § 1983 lawsuit against Connick and his prosecutors, alleging that the district attorney’s failure to train his staff in Brady-related matters triggered liability under the U.S. Supreme Court precedent City of Canton v. Harris which held that a municipality may be held liable for failure to train its employees. The jury awarded Thompson $14 million in damages and the Fifth Circuit Court of Appeals upheld that judgment.”
What the Supreme Court Held
Essentially, the Court ruled that a district attorney’s office cannot held liable under § 1983 for a failure to train its prosecutors based on a single Brady violation (prosecutorial misconduct). The Court adhered by a standard it set in 1977 in Monell v. New York City Dept. of Social Services which requires an individual suing a local government municipality prove that his/her injury was caused by an action taken pursuant to an “official municipality policy” and requires a showing that decisions by the government’s lawmakers (such as a city council or a district attorney’s office), as well as acts by its “policymaking officials,” are wrongful practices so “persistent and widespread as to practically have the force of law.”
However, twelve years after Monell the Court in Canton qualified its municipality liability standard by finding that a government’s decision not to train “certain employees” (such as police) about their legal duty to avoid violating the rights of citizens “may” rise to the level as to permit civil damages under § 1983, but only if the failure to train amounts to “deliberate indifference to the rights of the persons with whom the [untrained employees] come into contact.” To satisfy this “deliberate indifference” test, the Court eight years later in Board of Comm’rs of Bryan City v. Brownsaid the wronged party must prove that “city policymakers” disregarded “known or obvious consequences” that a “particular omission” to train would result in untrained employees violating citizens’ rights.
Further, under Bryan City, the aggrieved party must ordinarily show a “pattern of similar constitutional violations” in order to establish “deliberate indifference.” The court reasoned that without some kind of “notice” that its deficient training is a problem, city policymakers would not know they have chosen a particular training program that would likely violate the rights of citizens.
Thompson did not try to prove a pattern of similar Brady violations by the Orleans Parish District Attorney’s Office, although he did point to four reversals of convictions for Brady violations by the Louisiana courts emanating out of Connick’s office during the ten years prior to his trial. The Supreme Court casually dismissed these four reversals, saying they were dissimilar to Thompson’s situation and, therefore, could not have put Connick on notice that there was a need for Brady training among his assistants.
We’re not making this stuff up. That’s what Justice Clarence Thomas said, and he was joined by Justices Roberts, Scalia, Alito, and Kennedy. But let’s look at the facts. Thompson was put to trial in 1985. During the 23-year period from the pronouncement of the Brady rule in 1963 by the Supreme Court and Thompson’s trial, Brady was cited, followed or distinguished in 40 cases decided by the high court, in 222 cases by the Fifth Circuit Court of Appeals, and in 179 cases by the Louisiana Supreme Court and the state’s courts of appeals. That’s a total 441 cases in which Brady was explained, discussed, or just mentioned by those various federal and state courts before Thompson was put to trial.
Just how much notice did District Attorney Harry Connick need that his assistants needed “training” in this area of law; namely, that district attorneys could not lie and cheat by fabricating evidence, concealing favorable evidence from the defense, and encouraging or at the least sanctioning perjured testimony in order to secure criminal convictions. This was evidenced by a 1995 U.S. Supreme Court in Kyles v. Whitley, a precedent ruling in an Orleans Parish capital murder conviction that sent Curtis Lee Kyles to Louisiana’s death row where he joined Thompson. Kyles, like Thompson, was innocent and the New Orleans police built its case around him through a well-known informant. Prior to Kyles trial, his defense attorney filed a Brady motion seeking discovery of all exculpatory evidence, and despite having in its possession at least 7 pieces of critical evidence that tended to exonerate Kyles, one of Connick’s assistants told a bald faced lie to the court, saying we have “no exculpatory evidence of any nature.”
Even though the Kyles decision was handed down 10 years after Thompson was convicted, it was at the very least prima facie evidence that deliberate, methodical, and unethical Brady violations had been a fixture in Harry Connick’s office since his election as Orleans Parish District Attorney in 1973. The repeated reversals of criminal convictions over a 20-year period for Brady violations—ten years before and 10 years after Thompson’s conviction—was more than ample evidence that Connick was not only aware of this pattern of systemic prosecutorial misconduct in his office but that he ignored, condoned, or perhaps even encouraged, the “convict at any costs” mentality associated with Brady violation convictions. What does seem obvious is that there was no serious training, or strict policies in place, demanding that that Brady be followed or that exculpatory evidence be turned over to the defense.
What the Justice Said
In distinguishing the Thompson case from the “single incident” rule expressed by the Court in Canton, Justice Thomas had this to say: “Attorneys are trained in the law and equipped with tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority of jurisdictions must do both … These threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules …
“Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements … Even those few jurisdictions that do not impose mandatory continuing-education requirements mandate that attorneys represent their clients competently and encourage attorneys to engage in continuing study and education … Before Louisiana adopted continuing-education requirements, it imposed similar general competency requirements on its state bar.”
Justice Thomas also pointed out:
- Attorneys who practice in district attorney’s office receive on-the-job training from “more experienced attorneys;”
- Attorneys in all jurisdictions must “satisfy character and fitness standards to receive a law license and are personally subject to an ethical regime designed to reinforce the professional standards;”
- Prosecutors are not only equipped but “are also ethically bound to know what Brady entails and to perform legal research when they are uncertain;”
- District Attorneys, like Connick, are “entitled to rely on prosecutors’ professional training and ethical obligations in the absence of some specific reason, such a pattern of violations, to believe that those tools are sufficient to prevent future constitutional violations in ‘the usual and recurring situations with which [the prosecutors] must deal’;”
- The Canton “failure-to-train” liability rule “is concerned with the substance of the training, not the particular instructional format;” and
- “We do not assume that prosecutors will always make correct Brady decisions or that guidance regarding specific Brady questions would not assist prosecutions … but showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability.”
Justice Ginsburg, who was joined in dissent by Justices Breyer, Sotomayor and Kagan, had these pointed observations:
The Brady rule, as all the parties conceded, “was dishonored in this case; consequently, John Thompson spent 18 years in prison, 14 of them isolated on death row, before the truth came to light: He was innocent of the charge of attempted armed robbery, and his subsequent trial on a murder charge, by prosecutorial design, was fundamentally unfair.
“The Court holds that the Orleans Parish District Attorney’s Office … cannot be held liable, in a civil rights action 42 U.S.C. § 1983, for the grave injustice Thompson suffered. That is so, the Court tells us, because Thompson has shown only an aberrant Brady violation, not a routine practice of giving short shrift to Brady’s requirements. The evidence presented to the jury that awarded compensation to Thompson, however, points distinctly away from the Court’s assessment. As the trial record in the § 1983 action revealed, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.
“From the top down, the evidence showed, members of District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.
“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. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under § 1983.”
We endorse everything Justice Ginsburg said about the John Thompson travesty. We believe Justice Thomas, and his conservative brethren, have given rogue prosecutors a virtual free pass to lie and cheat, even when they knowingly send innocent people to prison. These five justices have given constitutional blessing to the deplorable, shameful, and ever-increasing taint of prosecutorial misconduct in our legal system, and that is a judicial disgrace. The law, and its constitutional foundation, can be twisted and manipulated to achieve any objective, too often political ones. And that is precisely what we believe occurred in the Thompson case—a decision by pro-prosecution justices designed to cover and insulate prosecutorial misconduct.
The John Thompson and Curtis Lee Kyles cases, and their handling by the New Orleans District Attorney’s Office, is precisely why the death penalty should be abolished.
When the U.S. Supreme Court allows prosecutors from district attorney’s offices to conceal evidence in order to send potentially innocent men to death row, and gives those individuals victimized by this abuse no relief in civil court, we must conclude the system is broken. When the Supreme Court grasps for reasons to deny a civil recovery for a man who was intentionally set up and denied a fair trial and sent to prison by unethical prosecutors, we must conclude the Court simply doesn’t care about justice or innocence. Under such a system we must believe that innocent people have executed and that more will be killed in the future because too many prosecutors, and judges, consider it necessary collateral damage in their “war on crime.”
One or more of the four prosecutors involved in the John Thompson case should have been indicted and sent to prison. An innocent man suffered 18 years in prison, 14 of them under the specter of execution on death row. He will never see any justice for the state-orchestrated injustice inflicted upon him. That’s an incomprehensible tragedy. When prosecutors can send an innocent man to prison through lies and deceit, and there is no accountability at all for this misconduct, our legal system is bankrupt. After the Supreme Court’s decision in Connick v. Thompson, the meaning behind the scales of justice hanging in every courthouse in the country has been tarnished. This once honored symbol now stands tilted in mockery to Lady Justice herself, a joke.
And, yes, that is why even innocent people accused of crimes hire the best criminal defense attorneys they can afford. They know they are going up against a stacked deck because prosecutors begin the game with all the aces up their sleeves and, yes, because prosecutors can lie and cheat and get away with it…
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization