Supreme Court justices on Wednesday appeared ready to give the green light to efforts by a New Orleans man to win compensation for prosecutorial misconduct that put him behind bars for more than two decades for a murder he did not commit.
The Court heard arguments in the case of Connick v. Thompson in which former New Orleans District Attorney Harry Connick maintains that his office should not be held liable for what he contends was a single incident of failing to hand over exculpatory evidence to the defense before trial.
Louisiana appellate chief Stuart Duncan, arguing against liability, acknowledged that defendant John Thompson has suffered "terrible injuries" because of the actions of a lawyer in the prosecutor's office, but insisted that Supreme Court precedent does not allow Thompson to recover damages in a civil rights suit when no pattern of misconduct has been shown.
But several justices argued that by their reading of the record, at least four assistant prosecutors were aware that key blood evidence had been withheld, in violation of Brady v. Maryland, the 1963 decision that requires prosecutors to disclose exculpatory evidence to criminal defendants.
Another basis of the lawsuit is that Connick showed deliberate indifference by failing to train lawyers in the office on the importance of complying with Brady.
"It wasn't one rogue prosecutor," said Justice Ruth Bader Ginsburg, adding that there were "multiple opportunities" for the prosecution to turn over the evidence to Thompson's defense. "To shoehorn this into a single incident, it doesn't fit."
"There were four incidents here," said Justice Stephen Breyer. "And therefore, I don't have to try to make up weird hypotheticals." Duncan asserted that it should be viewed as one incident "that possibly could have involved one to four prosecutors."
Ginsburg and other justices also underlined the importance of Brady violations because, unlike disputes over Miranda warnings or other constitutional safeguards, failure to turn over evidence usually goes undiscovered. "Shouldn't there be extra vigilance when we are talking about a Brady claim?"
J. Gordon Cooney Jr., Morgan, Lewis & Bockius partner who has represented Thompson on appeals for 22 years, fielded several questions from justices about what kind of training, and how much, was required for a prosecutor to preserve immunity from liability. "The point of concern here is that we're going to have to go through a list, case by case, of everything there has to be training on," said Justice Anthony Kennedy.
Ginsburg added, "You don't want to have to give the prosecutors a clinical law school course before you let them do their job."
Cooney, picking up on Ginsburg's earlier comment, said there is "particular force" to training about Brady violations because they are "made in secret."
Wednesday's arguments represented the culmination of a 22-year pro bono effort by Cooney and fellow Morgan Lewis partner Michael Banks to obtain justice for Thompson. In 1999, when what seemed like a final appeal to the Supreme Court failed, they told Thompson nothing further would stop his execution. That same day, however, an investigator found exculpatory blood evidence that had been hidden by the prosecutor. We wrote about Cooney and Banks here and here.
Joining them at the counsel table was R. Ted Cruz, head of Morgan Lewis' Supreme Court and appellate practice.
When the evidence that would have exonerated Thompson from charges of armed robbery and murder was discovered, Thompson was retried in 2003 and freed. Thompson sued for a Section 1983 civil rights violation and a jury awarded him $14 million.
The 5th U.S. Circuit Court of Appeals upheld the award, ruling that it was unnecessary for Thompson to prove a pattern of Brady violations in Connick's office. Connick, who retired in 2003, filed an appeal to the Supreme Court that was joined by Louisiana. Connick is the father of the famous singer Harry Connick Jr., and also figured in a 1983 Supreme Court case, Connick v. Myers, on the First Amendment rights of government employees.