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With Notably Rare Exceptions, the New Orelans DA Doesn’t Railroad Innocent People to the Death Chamber

[ 26 ] April 2, 2011 |

More on Connick v. Thompson. I would excerpt, except that it might provide a disincentive to Read the Whole Thing.

I’m glad that Lithwick highlights the remarkable Scalia concurrence, which of course was joined by the most reactionary Supreme Court justice since James McReynolds.   Scalia and Alito actually take a more authoritarian position than the defendants themselves, arguing that 4 of the 5 prosecutors who conspired in the suppression of evidence that nearly got an innocent man executed didn’t act illegally despite their own admission:

By now the reader has doubtless guessed the best-kept secret of this case: There was probably no Brady violation at all—except for Deegan’s (which, since it was a bad-faith, knowing violation, could not possibly be attributed to lack of training). The dissent surely knows this, which is why it leans heavily on the fact that Connick conceded that Brady was violated.

Yes, one explanation for why the dissent relies on the admission of Brady violations is that the dissenters secretly believe that conspiring to withhold evidence that proved to be exculpatory doesn’t violate Brady. The infinitely more plausible explanation is that Ginsburg didn’t think it required elaborate argument to establish a proposition that was admitted against interest by the defendants. Jeebus. As is so often the case, Scalia’s sneering is used to prop up arguments that collapse on the slightest inspection.

More from Healy.

Comments (26)

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  1. joe from Lowell says:

    This Supreme Court is a disgrace, and if there is any justice, they’ll go down in history along with the Plessey v. Ferguson court.

  2. DocAmazing says:

    Regardless of what the evidence shows…
    …it had to be you!
    http://www.youtube.com/watch?v=MUqV1HoEYLw

  3. Still Awesomely Evil, But No Longer Bragging About It In Polite Company DrDick says:

    I have always found it interesting how those “limited government” Republicans never seem to want to limit police and prosecutorial powers (except when they involve corporations) or the military.

    • Holden Pattern says:

      Killing and jailing brown people and white trash — that’s what gummint is for. Everything else is wasting straight white conservative taxpayer dollars.

    • joe from Lowell says:

      Au contraire – they’ve made limiting police and prosecutorial powers in such fields as environmental law, financial regulation, and labor law central elements of their thought and politics.

      It’s getting to the point where telling the statie that you’ve incorporated yourself will soon become the best way to get him to let you off with a warning when you get pulled over.

      • Still Awesomely Evil, But No Longer Bragging About It In Polite Company DrDick says:

        As I said, they do make a notable exception for corporations.

      • Hey, it seems to work for burglary, when its claimed that it’s all part of a forclosure action by a megabank.

        How long will it be before a gang of besuited bank robbers show up with the line “we’re from Citigroup, and we’re here to take all your money”?

  4. blowback says:

    I thought the USA was supposed to be the “exceptional country”. This affair brings new meaning to that phrase!

  5. David Kaib says:

    The fact that the law in many ways is indifferent to whether a person sentenced to death even committed the crime tells you a good deal about what the death penalty is not about – deterring and punishing murder. It seems to breed a disregard for law and basic fairness.

    This decision is but one more reason to legislatively end state execution.

  6. efgoldman says:

    I hope that, deep in his heart of hearts, George Bush 41 has a dark, dead, inconsolable spot, when he remembers what he foisted on the court and the country for the sake of making a political point.

  7. Pastafarian says:

    How do you LG&M commenters feel about changing the law to allow the unjustly convicted to sue the specific attorneys whose wrong-doing actually caused the injustice?

    • (the other) Davis says:

      That proposal is a bit of a mixed bag. On the one hand, it could create stronger personal incentives for prosecutors to refrain from engaging in actionable misconduct.

      On the other hand, prosecutors are not necessarily wealthy (though I wouldn’t go so far as to say judgment-proof), meaning that such a suit would often be economically infeasible for attorneys to take on. You’d certainly see the ACLU and similar organizations taking on some such cases, but it’s probably unwise as a matter of policy to create a cause of action that is only feasible for plaintiffs who (a) can obtain pro bono representation, or (b) can afford to pay for their own attorney.

      And on the flip side, I would worry about representation for prosecutors who are sued under a system like this; the law would have to stipulate that the government would provide an attorney in any case, lest this become a financially burdensome means to harass prosecutors. But then you run into the conflict of interest problem, where the party paying the lawyer’s bill is distinct from the defendant.

  8. Michael H Schneider says:

    Isn’t the court simply reweighing the evidence and coming to a conclusion different from the conclusion the jury came to?

    I thought that jury determinations of fact were entitled to great deference, in part because of the 7th amendment right to trial by jury. I thought that the standard was not whether the court might have decided differently, but whether any reasonable jury could possibly arrive at the conclusion this jury reached.

    I think that’s what the dissent is alluding to on p. 26 when it says “Based on the evidence presented, the jury could conclude…”

    But yet the court doesn’t seem to directly address the question – a question which I thought was usually framed as ‘was there substantial evidence to support the verdict, when viewed in the light most favorable to supporting the jury verdict.’

    In other words, this looks like the perfect example of judicial activism, where the appellate court simply substitutes its judgment for the jury’s judgment.

    • David M. Nieporent says:

      Isn’t the court simply reweighing the evidence and coming to a conclusion different from the conclusion the jury came to?

      No. Please read the opinion, rather than relying on the glib Lithwick or snarky Lemieux’s summary of the case.

      • Michael H Schneider says:

        I read the opinion. And the concurrence. And the dissent.

        I’m perfectly willing to believe I missed something. Something big, even.

        If you wish to point out what I missed, and where, please do. Simply averring the conclusion that I’m wrong, without pointing out where, is not helpful.

  9. Jim Harrison says:

    In a federal system with substantial local authority, civil rights in criminal cases can only be protected by throwing out convictions and allowing civil suits when rights are violated. If those remedies are blocked off, the obvious solution is a much more centralized system where Federal judges or executive branch officials have the ability to fire local cops, prosecutors, and judges. If conservatives think that destroying the Bill of Rights fits in with Federalism, they may be fooling themselves. I don’t like top down, inquisitorial systems of justice myself because they have obvious and grave dangers, which is why I wish courts would go back to asserting their authority by protecting defendants instead of acting as class warriors and repo men of last resort.

  10. 4jkb4ia says:

    This post shows that this is too important a case to be used to troll your own blog.

    (Over there, it is “She is taking eemom’s part”. She is NOT. It takes a genuinely admirable quality to go out there every day and be willing to admit regularly that you didn’t know, or made a mistake.)

  11. owlbear1 says:

    TransOcean(Gulf Coast Killers) demonstrates exactly what Greenspan meant by the opaque invisible hand:

    “Notwithstanding the tragic loss of life…” our executives deserve bonuses.

  12. Ben says:

    Also in rare exceptions news:
    With notably rare exceptions, Transocean has had an excellent safety record over the last year.

  13. David M. Nieporent says:

    The infinitely more plausible explanation is that Ginsburg didn’t think it required elaborate argument to establish a proposition that was admitted against interest by the defendants.

    Strangely, when I pointed out that Thompson himself did not argue that there was a pattern, you did not apply this same “admission against interest” standard and accept this as evidence that there wasn’t a pattern.

    • Scott Lemieux says:

      I’m so old I remember when David Nieporent used to claim that he was a libertarian rather than an utterly orthodox statist Republican!

      Anyway, this is begging the question. Thompson conceded that there wasn’t a “pattern” in the sense that he didn’t introduce the other violations of Brady by DAs in the New Orleans Parish office. But he certainly didn’t claim that there wasn’t a “pattern” in the sense of “five prosecutors acting over nearly two decades.” Like the jury, 5CA, and 4 of the 9 Supreme Court justices I think Thompson did indeed show a “pattern.” The prosecutors, conversely, did actually concede to violating Thompson’s Brady rights.

      • Michael H Schneider says:

        he didn’t introduce the other violations of Brady by DAs in the New Orleans Parish office

        Actually, he did. The concurrence, however, calls this evidence irrelevant:

        “… supposed gaps in the Brady guidance provided by Connick’s office to prosecu- tors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual published by Connick’s office three years after Thompson’s
        trial, …” (pp. 23-24)

        I have no trouble with the inferences that (a) if they were trained to do it wrong three years later, they were trained to do it wrong at the time; and (b) if they were trained to do it wrong, they did it wrong; and (c) if they were trained to do other aspects of Brady wrong, that’s a part of a pattern of doing Brady wrong.

        The Court apparently feels that since the jury found no culture or policy of indifference, that this pattern doesn’t also go towards establishing a lack of training and supervision. I don’t see that, myself. I can see the jury concluding that there was a policy of paying attention to Brady, but not of paying enough attention to Brady to cause them to adequately train and supervise.

      • David M. Nieporent says:

        I’m so old I remember when David Nieporent used to claim that he was a libertarian rather than an utterly orthodox statist Republican!

        I’m a libertarian. I’m also a lawyer. Which means that when I read a case, I read what it says and what the precedents say. That doesn’t mean I can’t argue that the precedents are wrong; it does mean that I can’t argue that a decision based on those precedents is wrong without also arguing for overruling those precedents. I don’t like the decision in this case, but I find it compelled by precedent. As I said in another thread, Thompson’s attorney did the best he could to shoehorn a hard set of facts into a narrow exception, but it just wasn’t quite enough.

        Anyway, this is begging the question. Thompson conceded that there wasn’t a “pattern” in the sense that he didn’t introduce the other violations of Brady by DAs in the New Orleans Parish office.

        Right. And that “sense” is the legal sense. What you’re trying to do is utilize your own definition of “pattern,” instead of relying on the applicable one. The point of the “pattern” factor for liability is not that four prosecutors violating your rights is much worse than one prosecutor doing so; the point is that the government has been put on notice that a new policy is needed. It happening several times in the same case before being discovered doesn’t put the government on any more notice than it happening once in that case.

        But he certainly didn’t claim that there wasn’t a “pattern” in the sense of “five prosecutors acting over nearly two decades.” Like the jury, 5CA, and 4 of the 9 Supreme Court justices I think Thompson did indeed show a “pattern.”

        Juries don’t make legal determinations — only factual ones — and you’re simply incorrect about what they found. The actual argument by Thompson, and the holding by both the 5th Circuit and 4 of 9 Supreme Court justices was that Thompson didn’t need to prove a pattern — not that he actually had done so. (Actually, all nine justices agreed on that point, but the dissenting four argued that he had proved what he needed to in the absence of a pattern, while the majority disagreed.)

  14. Michael H Schneider says:

    when I read a case, I read what it says

    Right, because what it says is right there, inherent in the words themselves, completely revealed by the words within the four corners of the document. That’s because Supreme Court decisions are never ambiguous, unclear, self-contradictory, or nonsensical. You just have to read them, and then you know what they say.

    I’d overrule Canton, too, and go for a theory of constructive knowledge inferable frm a patern involving subsequent conduct, but that’s neither here nor there.

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