The Impunity of the Roberts Court

John Thompson served 18 years in prison -- 14 of them on death row -- for a murder and an armed robbery he did not commit. The prosecution's case was a house of cards: Thompson did not match the eyewitness description originally given of the murderer (although the most crucial witness against him did), and a blood test taken from the scene proved that he did not commit the robbery.

If the blood evidence should have exonerated him before either case went to trial, why did he come so close to being executed?

It happened, quite simply, because prosecutors withheld the critical blood evidence. Since the Supreme Court's 1963 decision in Brady v. Maryland, suppressing evidence favorable to the defendant has been recognized as a violation of the Constitution (failures to turn over possibly exculpatory evidence are now known as "Brady violations"). Because of a series of lucky breaks, Thompson and his attorneys happened to find out about the illegal suppression of evidence, and after more than two decades of legal wrangling and a disgraceful attempt to retry him that resulted in an acquittal after only 35 minutes of jury deliberation, he was finally free. For obvious reasons, following his vindication, Thompson sued the New Orleans district attorney's office for violating his civil rights. A jury awarded him $14 million. Of course, no ending to Thompson's story could be happy, but he at least received substantial compensation for the gross violation of his rights.

But the injustice didn't end there. Earlier this week, a bare majority of the Supreme Court threw out the jury award. Speaking through Justice Clarence Thomas, the Court's five Republican appointees held that New Orleans District Attorney Harry Connick Sr. was not legally liable for the criminal actions of the prosecutors under his supervision. According to Thomas, Thompson did not "prove a pattern of similar violations" that would make the D.A.'s office responsible for illegally suppressing exculpatory evidence.

As Justice Ruth Bader Ginsburg's closely argued dissent pointed out, there was an obvious long-running pattern of misbehavior. The violations of Thompson's rights, she writes, "were not singular and they were not aberrational"; They resulted from prosecutorial misconduct over a nearly 20-year period. If this doesn't constitute a pattern for which the D.A. can be responsible, it's unclear what would, particularly given how hard it is to uncover evidence of Brady violations. The jury also had other reasons for finding that Connick was "deliberately indifferent" to whether the prosecutors in his office followed Brady. Connick and other senior prosecutors were unable even to correctly articulate what the Brady decision requires of prosecutors, nor did prosecutors in the office receive training explaining them. Despite all this, the conservative wing of the Court elected to compound the injustices inflicted on Thompson by throwing out the jury verdict.

Viewed in the context of the Court's other jurisprudence on the responsibilities of prosecuting attorneys, Thomas' opinion looks even worse. Let's accept for the sake of argument the majority's position that the injustice done to Thompson was just the product of five bad apples and that Connick should not be held liable for them. Can't you go after the individual lawyers who withheld the evidence? No. There is a doctrine that gives prosecutors absolute immunity for their actions as prosecutors (although they can still be subject to liability for their actions as administrators or investigators, which is why Connick was not entirely immune). So by also making it exceptionally difficult to hold district attorneys accountable for the illegal acts of their employees, the Court has created a classic catch-22 in which nobody can be held responsible for rights violations.

Nor does it seem likely that the Court will revise its ill-advised grant of total immunity for prosecutors anytime soon. The Court recently heard oral arguments in a case called Pottawattamie County v. McGhee, which involved a case in which a prosecutor procured false testimony and then introduced it at trial. The case was settled before the Court issued a ruling, but during oral argument Chief Justice John Roberts twice fretted about the alleged "chilling effect" on prosecutors of not maintaining absolute immunity for prosecutorial actions at trial. As Radley Balko pointed out, the argument is bizarre in its misplaced priorities: "We want prosecutors to 'flinch' before introducing evidence they suspect might not be true. In fact, we want them to not introduce that evidence at all. And there should be a chilling effect on misconduct as egregious as coaching witnesses to lie." And this unwillingness to create incentives that will discourage prosecutors from violating people's rights is reflected in Thompson as well.

The treatment of John Thompson reflects poorly on the American criminal-justice system for another reason as well. He was, after all, nearly executed. And leaving aside the illegal suppression of evidence, the case against him was remarkably weak. His conviction "was based entirely on the testimony of four witnesses," all of whom received either cash rewards, plea bargains, or dropped charges in exchange for their testimony. The fact that an individual could receive a death sentence based on such thin and unreliable evidence is further evidence of a death penalty system that is indefensibly prone to error.

That John Thompson was nearly railroaded to the death chamber remains a damning indictment of the functioning of the justice system, even though his life was ultimately spared and his innocence confirmed. And as long as the Supreme Court makes it nearly impossible to hold prosecutors properly accountable, cases like his will continue to occur.

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