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No recompense for John Thompson's stolen years
The high court's opinions in his case raise troubling questions, such as: Why did the ADAs fail to test his blood?

OPINION
The National Law Journal
June 20, 2011

ohn Thompson spent 18 years in prison, 14 on death row. He landed there because the prosecution team responsible for his convictions of attempted armed robbery and capital murder failed to turn over evidence that had the potential to prove his innocence. None of the four assistant district attorneys involved has incurred any sanction. After his convictions were vacated and he was retried for murder and acquitted, Thompson brought a § 1983 suit against the then Orleans Parish District Attorney, Harry F. Connick. Thompson sought damages for Connick's "deliberate indifference to an obvious need to train" his staff about their duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose to the defense evidence favorable to the accused. He contended that such instruction would likely have averted this miscarriage. Plainly agreeing, a jury awarded Thompson $14 million; the en banc U.S. Court of Appeals for the 5th Circuit affirmed by an evenly split vote.

Dividing 5-4 on ideological lines, the U.S. Supreme Court reversed in an opinion written by Justice Clarence Thomas. Connick v. Thompson (March 29, 2011). The decision held that a failure to train premised on a single Brady violation did not amount to government policy so as to sustain municipal-agency liability. Thus, absent a pattern-and-practice showing, someone like Thompson has no recourse since individual prosecutors have absolute immunity (and lack deep pockets). Moreover, from a deterrence perspective, the Office of the District Attorney is by far the preferable defendant: The prospect of damages would furnish a strong incentive to prevent infractions.

Justice Ruth Bader Ginsburg vigorously dissented. According to her and three other justices, this was no instance of "aberrant" wrongdoing. Based on the prosecutors' actions here, a jury "could reasonably conclude that inattention to Brady was standard operating procedure" in the office.

What did happen to make even the majority justices describe the misbehavior as "flagrant"? With regard to the culpability of specific assistant district attorneys, the facts are murky. What is clear is that publicity surrounding Thompson's murder arrest caused victims of an unrelated armed robbery attempt to identify Thompson as their assailant. Although the police had procured a swatch from the pants of one of them, stained with the perpetrator's blood, prosecutors did not have it tested until the very eve of trial. The lab report, which indicated that the guilty party had type B blood (found in only 10% of the population), was never revealed to Thompson's lawyers, who were told by a clerk that no blood evidence existed. (Thompson had blood type O.) The resulting conviction in the robbery case virtually ensured Thompson's conviction and death sentence in the later murder proceedings. Its impeachment potential made him decline to testify and served as proof of his violent propensities.

The report only surfaced nine years later, a month before his scheduled execution, when an investigator working for his lawyers unearthed a copy. Its discovery eventually led to a former assistant district attorney, who executed an affidavit revealing that deceased ex-prosecutor Gerry Deegan had confessed to him five years earlier (following a diagnosis of terminal cancer) that Deegan "had intentionally suppressed blood evidence" in [Thompson's] armed robbery trial." Despite his urging, Deegan never alerted the authorities — nor did the former ADA until these events. This recitation surely warrants the outrage expressed by Ginsburg rather than the dismissive tone pervading the treatment of her concerns by the majority and justices Antonin Scalia and Samuel Alito Jr.'s concurrence.

Yet after reading all the opinions, one is left with some troubling questions. Most prominently: Where was the Brady violation? Because Connick conceded its existence, the majority never considered the issue. Scalia wrote there was likely none at all, except for Deegan's (which, since it was "bad-faith" and "knowing," could not be ascribed to lack of training). His major point seems right: There is no indication the prosecution knew that Thompson's blood type excluded guilt. But then why the qualification respecting Deegan? He admitted suppressing evidence, not having been aware of its exculpating significance; and Brady violations do not depend on "mens rea." That leads to the question: Why did the assistant district attorneys fail to test Thompson's blood? If proven a match, its rare type would likely have guaranteed conviction. Could they have suspected they had the wrong man?

Ginsburg rejected their " 'don't ask, don't tell' " approach to Brady. As for the link to lack of training, she wrote: "Had Brady's importance been brought home to prosecutors, surely at least one of the four" would have revealed the lab report.

Perhaps Thompson's was a hard case that made bad law. Yet whatever the precise bounds of civil rights or Brady jurisprudence, it should be plain that due process cannot tolerate the sharp practice engaged in by Harry Connick's office.