WITHIN ONE HOUR OF EXECUTION

WITHIN ONE HOUR OF EXECUTION

CONNICK, District Attorney et al V. THOMPSON, Case No. 09-571, Decided 3/29/2011

U.S. Supreme Court Opinion review

By Larry Delano Coleman, Esq.

In a 5-4 decision the United Supreme Court, on March 29, 2011, reversed a $14million dollar civil judgment in favor of a black man, John Thompson, of New Orleans, who had sued the District Attorney of New Orleans, after being twice wrongly convicted of armed robbery, and murder, in separate trials, due to illegally withheld evidence, showing his innocence. http://www.supremecourt.gov/opinions/10pdf/09-571.pdf

The District Attorney’s office “conceded” that its prosecutors had violated the law in being failing its obligation turn over “Brady” materials, prior to either trial, to counsel for the Respondent Thompson. They admittedly failed to turn over an exculpatory lab report, or its analysis of a bloody cotton swatch containing the alleged perpetrator’s blood, as required by the 1963 landmark case, Brady v. Maryland, which was earlier decided by the Supreme Court .

Thompson had type “O” blood, and the withheld cloth swatch from the crime lab showed Type “B” blood from the robber. Clearly, then, Thompson was the wrong man. But, he came within one month of execution, having sat on death row for 14 years, and having served 18 years altogether, before this discovery was made by his investigator. Four New Orleans Parish prosecutors had knowledge of this evidence, and refused to disclose its existence to Thompson. He had also lost appeals and collateral actions in both state and federal court in unsuccessful attempts to gain his freedom.

Even so, the U.S. Supreme Court, in a decision written by Justice Thomas, ruled that the civil rights statute, 42 U.S.C. 1983, which prohibits violation of federal rights under color of state law, could not be used to establish municipal liability based on merely one incident—particular one’s own—rather, a pattern of similar abuses would have to be established. An evenly divided Fifth Circuit Court of Appeal en banc decision to the contrary was reversed by the Supreme Court, leaving Thompson with nothing.

Somewhat remarkably, the Court found that four (4) similar violations over ten (10) years was insufficient to show a pattern of deliberate indifference under Canton v Harris, another Supreme Court precedent on which Thompson relied, because a jury had rule against Thompson on his pattern or practice claim. Thus, Thompson was left only with his failure to train claim as a basis for municipal liability, which the Court described as “nebulous.” The Canton v Harris Court also found that where a violation is “obvious,” one need not establish a prior practice of similar abuses.

Respondent Thompson argued, unsuccessfully, it was “obvious” that the prosecutors’ failure to turn over the exculpatory evidence, which only it had, or had knowledge of, and its pursuit of criminal convictions, notwithstanding non-disclosure of these “Brady” materials, was an “obvious” constitutional violation. But, the Supreme Court found its prior, Canton v. Harris decision’s “obvious” alternative dicta was not applicable, for reasons which strain credulity, considering that all licensed attorneys comprising the DA’s staff are sworn to uphold and to enforce all this nation’s laws, their knowledge of such laws being presumed.

The real handicap for Respondent Thompson, and for all others with similar claims, is that there is no vicarious liability attributable to the municipal employer under 42 U.S.C. 1983 for federal civil rights violations of its employees, the Supreme Court had previously ruled in other cases. Instead, municipal liability, itself, would have to be established which could only be done by showing “decisions of government lawmakers, acts of government policymaking officials, and practices so persistent and widespread as to practically have the force of law.” The policymaking official herein, Harry Connick, Sr., father of the entertainer of like name, claimed Thompson could not prove that he had knowledge of the need for “Brady” training and was deliberately indifferent to affording such training. The Court agreed, and took away a $14,000,000 damages award, plus over a million dollars in attorney’s fees and costs which had also been awarded.

Ironically, earlier in March 2011 the Executive Branch, through the U.S. Department of Justice, Civil Rights Division, issued a scathing report of its investigation of the New Orleans Police Department’s deep and wide-spread statutory and Constitutional violations in its operation. Such violations could not have been unknown to the District Attorney’s Office, and were probably well known to that office, whose cases come exclusively from that City’s police. Because this judgment was reversed outright, and not remanded in any respect for new trial, Thompson’s counsel may never be able to use that Justice Department Report to establish a pattern and practice of similar violations in the DA’s office, itself. http://www.justice.gov/crt/about/spl/nopd_report.pdf

Although this decision sounds horrific, it is consistent with prevailing U.S. Supreme Court precedents in all respects, unfortunately, despite the arguments of the four dissenting justices.

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