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Annals of American Injustice

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Tomorrow, the Supreme Court will hear arguments on the question on whether prosecutors can be liable if they violate the constitutional rights of the accused. The background of the case is, in addition, very instructive about the functioning of the death penalty, even before we get to the fact that the DA intentionally withheld exculpatory evidence:

In John Thompson’s case, there was no physical evidence linking him to the crime—the brutal robbery and murder of an unarmed New Orleans hotel executive in early December 1984. The shooting was outdoors, and no blood, fabric, or hair samples were collected at the scene. Ballistics confirmed that police had found the murder weapon, but Thompson’s fingerprints weren’t on it. Instead, Thompson’s conviction was based entirely on the testimony of four witnesses. Kevin Freeman, also arrested for the murder, testified (in exchange for a plea bargain) that he had seen Thompson pull the trigger. Two other men (who received cash rewards for their testimony) stated that they had heard Thompson confess to the killing, and another man (whose rape charge had been dropped by prosecutors two days before) said that Thompson had sold him the gun.

In a state with some basic commitment to justice, a case based solely on eyewitness testimony that ranges on a spectrum from “extremely self-interested and unreliable” to “effectively coerced” wouldn’t even go to trail, let alone lead to a capital conviction. This context makes the assertions of the DA’s office that they should have absolute immunity from liability for gross constitutional violations particularly outrageous. Whether a majority of the Supreme Court will see it this way, though…oral arguments should be interesting.

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  • Stag Party Palin

    No-brainer. The DA, as an employee of the city or county, which is a political unit existing as a part of the state, which is part of the union, should therefore enjoy the same privileges as the President, up to and including the right to execute citizens without a trial.

    USA! USA! USA!

  • L2P

    7-2 upholding immunity? Or 9-0?

    • FashionablyEvil

      I’m voting 7-2, Ginsburg and Breyer in dissent.

      • I bet a left behind cookie, thanks slacktivist for poisonin my mind your fundamentalist cookie porn, that the vote will be 7-2. And I think you are right about who the two will be.

  • genjirama

    Golly – that prosecutor is Harry Connick Sr., apparently the father of Jr.

  • mpowell

    What is the legal difference between suing the DA personally and the DA’s office in a case like this? Is one easier to manage than the other?

    It is amazing that conservatives would like to roll back civil rights protections and unfetter police and DA behavior and at the same time resist attempts to rectify violations of constitutional rights via lawsuits.

    • BigHank53

      Why?

      Wealthy white men can buy all the rights they need.

      Other folks–the poor ones, brown ones, and female ones–need to understand that everything they enjoy is an allowance from their betters.

      And stop calling them conservatives. I can’t think of a single thing they want to conserve.

      • Holden Pattern

        This.

      • They want to conserve the old order, where rich, white men can buy whatever rights they need/want.

      • DrDick

        Elite power and wealth is what conservatives have always wanted to conserve.

    • L2P

      For civil rights violations, a DA could be liable simply for doing something wrong. A Monell claim against the municality requires essentially that the municipality have a custom or a policy that would result in the violation. Respondeat superior is not enough. It’s a lot harder to prove.

      Some jurisdictions also have claim provisions that could bar a suit against a municipality, but not against an individual. The municipality might have defenses of acting outside of policy or scope of employment in some jurisdictions.

    • matth

      Don’t prosecutors have almost absolute personal immunity? (That’s a non-rhetorical question. This isn’t my area, and I’m groping back to vague memories from law school.)

  • L2P

    For state claims, it depends on the state. In CA, prosecutors have absolute immunity for prosecutorial conduct, but not for directing investigations, etc. This is a federal claim, and the scope of immunity isn’t clear.

    I’m really curious how qualified immunity would work for prosecutors. There’s a lot of Brady claims out there, and a lot of challenge claims out there. That’s a lot of liability.

  • cpinva

    were i a betting man, i would bet on a 7-2 ruling, for absolute, positively, always immunity, for prosecutors and the municipalities that love them, even if they shoot the defendent in the courtroom. saves money on a trial, they should get a bonus instead.

  • I am not a lawyer but something tells me that the supremes will rule that prosecutors cannot be prosecuted if they made a good faith effort to defend the accused’s constitutional rights.

    • Malaclypse

      if they made a good faith effort

      Those seven words are doing a lot of work in that sentence.

      • DrDick

        Moving mountains as it were.

    • Murc

      Wouldn’t the question of whether or not they made a good faith effort be something that… would need to be decided by a court?

      • Pine

        I guess you’re saying the use of four unreliable witnesses (2 paid, 1 effectively coerced, and 1 with a rape charge dismissed) is not sufficiently bad faith.

        Well, a court did eventually throw out the conviction because of the prosecutors’ failure to turn over exculpatory evidence as required by law.

        Other factors to consider: (1) the defendant did not have any priors for violent crime, and so after the murder, the prosecutors charged the defendant with a second violent crime (carjacking) to make the defendant death-penalty eligible? (2) In that carjacking, the the prosecutors did not disclose the existence of blood evidence from the carjacking that might have exonerated the defendant and later denied the existence of this evidence even though their tests showed that the blood did not belong either to the defendant or the victim. (3) Harry Connick, Sr. (yes, the father of Connick the singer) has had 36 allegations of misconduct against him and that 19 have had their sentences overturned or reduced as a result. (4) The other prosecutor, John Williams, has successfully convicted 5 men of capital murder and all 5 convictions have been overturned on appeal.

        • Murc

          I’m not saying that at all. Please don’t put words into my mouth.

          My point was that even if the Supremes build in a good faith exemption, as seems likely, while this will certainly raise the bar on lowering the boom (to mix a metaphor) on prosecutorial misconduct, it will still be possible to do so, as the question of whether or not there was good faith is something to be adjudicated by a court. That seems POTENTIALLY problematic to me but not on the face of it either bad or illegitimate.

          Having said that, ask me about this again after I’ve read Radley Balko for a couple hours and I might have a very different opinion on how liable prosecutors should be for both fucking up (and people fuck up in good faith; that’s just… that’s going to happen) and outright malfeasance. And the specific case in question is DEFINITELY the later, I don’t think there can be any question about that.

          • Pine

            Fair enough, and even if the Supreme Court rules in the defendant’s favor, the prosecutors will get their day in court. Meanwhile, I’m not particularly inclined to extend the benefit of doubt to this bunch of prosecutors considering what is already a matter of public record.

  • In a state with some basic commitment to justice

    Ah, but we’re talking about Louisiana.

    This context makes the assertions of the DA’s office that they should have absolute immunity from liability for gross constitutional violations particularly outrageous.

    See my previous comment.

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