GINSBURG, J., DISSENTING
CONNICK V. THOMPSON
563 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-571
HARRY F. CONNICK, DISTRICT ATTORNEY, et al.,
PETITIONERS
v. JOHN THOMPSON
on writ of certiorari to the united states court of
appeals for the fifth circuit
[March 29, 2011]
Justice Ginsburg, with whom
Justice Breyer, Justice Sotomayor, and Justice Kagan join,
dissenting.
In
Brady v.
Maryland,
373 U. S. 83, 87 (1963),
this Court held that due process requires the prosecution to turn
over evidence favorable to the accused and material to his guilt or
punishment. That obligation, the parties have stipulated, was
dishonored in this case; consequently, John Thompson spent 18 years
in prison, 14 of them isolated on death row, before the truth came
to light: He was innocent of the charge of attempted armed robbery,
and his subsequent trial on a murder charge, by prosecutorial
design, was fundamentally unfair.
The Court holds that the Orleans Parish
District Attorney’s Office (District Attorney’s Office or Office)
cannot be held liable, in a civil rights action under 42 U.
S. C. §1983, for the grave injustice Thompson suffered. That
is so, the Court tells us, because Thompson has shown only an
aberrant
Brady violation, not a routine practice of giving
short shrift to
Brady’s requirements. The evidence
presented to the jury that awarded compensation to Thompson,
however, points distinctly away from the Court’s assessment. As the
trial record in the §1983 action reveals, the conceded,
long-concealed prosecutorial transgressions were neither isolated
nor atypical.
From the top down, the evidence showed,
members of the District Attorney’s Office, including the District
At-torney himself, misperceived
Brady’s compass and
therefore inadequately attended to their disclosure obligations.
Throughout the pretrial and trial proceedings against Thompson, the
team of four engaged in prosecuting him for armed robbery and
murder hid from the defense and the court exculpatory information
Thompson requested and had a constitutional right to receive. The
prosecutors did so despite multiple opportunities, spanning nearly
two decades, to set the record straight. Based on the prosecutors’
conduct relating to Thompson’s trials, a fact trier could
reasonably conclude that inattention to
Brady was standard
operating procedure at the District Attorney’s Office.
What happened here, the Court’s opinion
obscures, was no momentary oversight, no single incident of a lone
officer’s misconduct. Instead, the evidence demonstrated that
misperception and disregard of
Brady’s disclosure
requirements were pervasive in Orleans Parish. That evidence, I
would hold, established persistent, deliberately indifferent
conduct for which the District Attorney’s Office bears
responsibility under §1983.
I dissent from the Court’s judgment mindful
that
Brady violations, as this case illustrates, are not
easily detected. But for a chance discovery made by a defense team
investigator weeks before Thompson’s scheduled execution, the
evidence that led to his exoneration might have remained under
wraps. The prosecutorial concealment Thompson encountered, however,
is bound to be repeated unless municipal agencies bear
responsibility—made tangible by §1983 liability—for adequately
conveying what
Brady requires and for monitoring staff
compliance. Failure to train, this Court has said, can give rise to
municipal liability under §1983 “where the failure … amounts to
deliberate indifference to the rights of persons with whom the
[untrained employees] come into contact.”
Canton v.
Harris,
489
U. S. 378, 388 (1989). That standard is well met in this
case.
I
I turn first to a contextual
account of the
Brady violations that infected Thompson’s
trials.
A
In the early morning hours of
December 6, 1984, an assailant shot and killed Raymond T. Liuzza,
Jr., son of a prominent New Orleans business executive, on the
street fronting the victim’s home. Only one witness saw the
assailant. As recorded in two contemporaneous police reports, that
eyewitness initially described the assailant as African-American,
six feet tall, with “close cut hair.” Record EX2–EX3, EX9.[
Footnote 1] Thompson is five feet eight
inches tall and, at the time of the murder, styled his hair in a
large “Afro.”
Id., at EX13. The police reports of the
witness’ immediate identification were not disclosed to Thompson or
to the court.
While engaged in the murder
investigation, the Orleans Parish prosecutors linked Thompson to
another violent crime committed three weeks later. On December 28,
an assailant attempted to rob three siblings at gunpoint. During
the struggle, the perpetrator’s blood stained the oldest child’s
pant leg. That blood, preserved on a swatch of fabric cut from the
pant leg by a crime scene analyst, was eventually tested. The test
conclusively established that the perpetrator’s blood was type B.
Id., at EX151. Thompson’s blood is type O. His prosecutors
failed to disclose the existence of the swatch or the test
results.
B
One month after the Liuzza
murder, Richard Perkins, a man who knew Thompson, approached the
Liuzza family. Perkins did so after the family’s announcement of a
$15,000 reward for information leading to the murderer’s
conviction. Police officers surreptitiously recorded the
Perkins-Liuzza conversations.[
Footnote 2] As documented on tape, Perkins told the
family, “I don’t mind helping [you] catch [the perpetrator], … but
I would like [you] to help me and, you know, I’ll help [you].”
Id., at EX479, EX481. Once the family assured Perkins,
“we’re on your side, we want to try and help you,”
id., at
EX481, Perkins intimated that Thompson and another man, Kevin
Freeman, had been involved in Liuzza’s murder. Perkins thereafter
told the police what he had learned from Freeman about the murder,
and that information was recorded in a police report. Based on
Perkins’ account, Thompson and Freeman were arrested on murder
charges.
Freeman was six feet tall and
went by the name “Kojak” because he kept his hair so closely
trimmed that his scalp was visible. Unlike Thompson, Freeman fit
the eyewitness’ initial description of the Liuzza assailant’s
height and hair style. As the Court notes,
ante, at 4,
n. 2, Freeman became the key witness for the prosecution at
Thompson’s trial for the murder of Liuzza.
After Thompson’s arrest for the Liuzza murder,
the father of the armed robbery victims saw a newspaper photo of
Thompson with a large Afro hairstyle and showed it to his children.
He reported to the District Attorney’s Office that the children had
identified Thompson as their attacker, and the children then picked
that same photo out of a “photographic lineup.” Record EX120,
EX642–EX643. Indicting Thompson on the basis of these questionable
identifications, the District Attorney’s Office did not pause to
test the pant leg swatch dyed by the perpetrator’s blood. This
lapse ignored or overlooked a prosecutor’s notation that the Office
“may wish to do [a] blood test.”
Id., at EX122.
The murder trial was scheduled to begin in
mid-March 1985. Armed with the later indictment against Thompson
for robbery, however, the prosecutors made a strategic choice: They
switched the order of the two trials, proceeding first on the
robbery indictment.
Id., at EX128–EX129. Their aim was
twofold. A robbery conviction gained first would serve to inhibit
Thompson from testifying in his own defense at the murder trial,
for the prior conviction could be used to impeach his credibility.
In addition, an armed robbery conviction could be invoked at the
penalty phase of the murder trial in support of the prosecution’s
plea for the death penalty.
Id., at 682.
Recognizing the need for an effective
prosecution team, petitioner Harry F. Connick, District Attorney
for the Parish of Orleans, appointed his third-in-command, Eric
Dubelier, as special prosecutor in both cases. Dubelier enlisted
Jim Williams to try the armed robbery case and to assist him in the
murder case. Gerry Deegan assisted Williams in the armed robbery
case. Bruce Whittaker, the fourth prosecutor involved in the cases,
had approved Thompson’s armed robbery indictment.[
Footnote 3]
C
During pretrial proceedings in
the armed robbery case, Thompson filed a motion requesting access
to all materials and information “favorable to the defendant” and
“material and relevant to the issue of guilt or punishment,” as
well as “any results or reports” of “scientific tests or
experiments.”
Id., at EX144, EX145. Prosecutorial
responses to this motion fell far short of
Brady
compliance.[
Footnote 4]
First, prosecutors blocked
defense counsel’s inspection of the pant leg swatch stained by the
robber’s blood. Although Dubelier’s April 3 response stated,
“Inspection to be permitted,”
id., at EX149, the swatch
was signed out from the property room at 10:05 a.m. the next day,
and was not returned until noon on April 10, the day before trial,
id., at EX43, EX670. Thompson’s attorney inspected the
evidence made available to him and found no blood evidence. No one
told defense counsel about the swatch and its recent removal from
the property room.
Id., at EX701–EX702; Tr. 400–402. But
cf.
ante, at 17, n. 11 (Thompson’s attorney had
“access to the evidence locker where the swatch was recorded as
evidence.”).[
Footnote 5]
Second, Dubelier or Whittaker ordered the
crime laboratory to rush a pretrial test of the swatch. Tr.
952–954. Whittaker received the lab report, addressed to his
attention, two days before trial commenced. Immediately thereafter,
he placed the lab report on Williams’ desk. Record EX151, EX589.
Although the lab report conclusively identified the perpetrator’s
blood type,
id., at EX151, the District Attorney’s Office
never revealed the report to the defense.[
Footnote 6]
Third, Deegan checked the swatch out of the
property room on the morning of the first day of trial, but the
prosecution did not produce the swatch at trial.
Id., at
EX43. Deegan did not return the swatch to the property room after
trial, and the swatch has never been found. Tr. of Oral Arg.
37.
“[B]ased solely on the descriptions” provided
by the three victims, Record 683, the jury convicted Thompson of
attempted armed robbery. The court sentenced him to 49.5 years
without possibility of parole—the maximum available sentence.
D
Prosecutors continued to
disregard
Brady during the murder trial, held in May 1985,
at which the prosecution’s order-of-trial strategy achieved its
aim.[
Footnote 7] By prosecuting
Thompson for armed robbery first—and withholding blood evidence
that might have exonerated Thompson of that charge—the District
Attorney’s Office disabled Thompson from testifying in his own
defense at the murder trial.[
Footnote 8] As earlier observed, see
supra, at 5,
impeaching use of the prior conviction would have severely
undermined Thompson’s credibility. And because Thompson was
effectively stopped from testifying in his own defense, the
testimony of the witnesses against him gained force. The
prosecution’s failure to reveal evidence that could have impeached
those witnesses helped to seal Thompson’s fate.
First, the prosecution undermined
Thompson’s efforts to impeach Perkins. Perkins testified that he
volunteered information to the police with no knowledge of reward
money. Record EX366, EX372–EX373. Because prosecutors had not
produced the audiotapes of Perkins’ conversations with the Liuzza
family (or a police summary of the tapes), Thompson’s attorneys
could do little to cast doubt on Perkins’ credibility. In closing
argument, the prosecution emphasized that Thompson presented no
“direct evidence” that reward money had motivated any of the
witnesses.
Id., at EX3171–EX3172.
Second, the prosecution impeded Thompson’s
impeachment of key witness Kevin Freeman. It did so by failing to
disclose a police report containing Perkins’ account of what he had
learned from Freeman about the murder. See
supra, at 4.
Freeman’s trial testimony was materially inconsistent with that
report. Tr. 382–384, 612–614; Record EX270–EX274. Lacking any
knowledge of the police report, Thompson could not point to the
inconsistencies.
Third, and most vital, the eyewitness’ initial
description of the assailant’s hair, see
supra, at 3, was
of prime relevance, for it suggested that Freeman, not Thompson,
murdered Liuzza, see
supra, at 4. The materiality of the
eyewitness’ contemporaneous description of the murderer should have
been altogether apparent to the prosecution. Failure to produce the
police reports setting out what the eyewitness first said not only
undermined efforts to impeach that witness and the police officer
who initially interviewed him. The omission left defense counsel
without knowledge that the prosecutors were restyling the killer’s
“close cut hair” into an “Afro.”
Prosecutors finessed the discrepancy between
the eyewitness’ initial description and Thompson’s appearance. They
asked leading questions prompting the eyewitness to agree on the
stand that the perpetrator’s hair was “afro type,” yet “straight
back.” Record EX322–EX323. Corroboratively, the police
officer—after refreshing his recollection by reviewing material at
the prosecution’s table—gave artful testimony. He characterized the
witness’ initial description of the perpetrator’s hair as “black
and short,
afro style.”
Id., at EX265 (emphasis
added). As prosecutors well knew, nothing in the withheld police
reports, which described the murderer’s hair simply as “close cut,”
portrayed a perpetrator with an Afro or Afro-style hair.
The jury found Thompson guilty of first-degree
murder. Having prevented Thompson from testifying that Freeman was
the killer, the prosecution delivered its ultimate argument.
Because Thompson was already serving a near-life sentence for
attempted armed robbery, the prosecution urged, the only way to
punish him for murder was to execute him. The strategy worked as
planned; Thompson was sentenced to death.
E
Thompson discovered the
prosecutors’ misconduct through a serendipitous series of events.
In 1994, nine years after Thompson’s convictions, Deegan, the
assistant prosecutor in the armed robbery trial, learned he was
terminally ill. Soon thereafter, Deegan confessed to his friend
Michael Riehlmann that he had suppressed blood evidence in the
armed robbery case.
Id., at EX709. Deegan did not heed
Riehlmann’s counsel to reveal what he had done. For five years,
Riehlmann, himself a former Orleans Parish prosecutor, kept
Deegan’s confession to himself.
Id., at EX712–EX713.
On April 16, 1999, the State of
Louisiana scheduled Thompson’s execution.
Id., at
EX1366–EX1367. In an eleventh-hour effort to save his life,
Thompson’s attorneys hired a private investigator. Deep in the
crime lab archives, the investigator unearthed a microfiche copy of
the lab report identifying the robber’s blood type. The copy showed
that the report had been addressed to Whittaker. See
supra, at 7. Thompson’s attorneys contacted Whittaker, who
informed Riehlmann that the lab report had been found. Riehlmann
thereupon told Whittaker that Deegan “had failed to turn over stuff
that might have been exculpatory.” Tr. 718. Riehlmann prepared an
affidavit describing Deegan’s disclosure “that he had intentionally
suppressed blood evidence in the armed robbery trial of John
Thompson.” Record EX583.
Thompson’s lawyers presented to the trial
court the crime lab report showing that the robber’s blood type was
B, and a report identifying Thompson’s blood type as O. This
evidence proved Thompson innocent of the robbery. The court
immediately stayed Thompson’s execution,
id., at EX590,
and commenced proceedings to assess the newly discovered
evidence.
Connick sought an abbreviated hearing. A full
hearing was unnecessary, he urged, because the Office had confessed
error and had moved to dismiss the armed robbery charges. See,
e.g.,
id., at EX617. The court insisted on a
public hearing. Given “the history of this case,” the court said,
it “was not willing to accept the representations that [Connick]
and [his] office made [in their motion to dismiss].”
id.,
at EX882. After a full day’s hearing, the court vacated Thompson’s
attempted armed robbery conviction and dismissed the charges.
Before doing so, the court admonished:
“[A]ll day long there have been a number of young
Assistant D. A.’s … sitting in this courtroom watching this,
and I hope they take home … and take to heart the message that this
kind of conduct cannot go on in this Parish if this Criminal
Justice System is going to work.”
Id., at EX883.
The District Attorney’s Office
then initiated grand jury proceedings against the prosecutors who
had withheld the lab report. Connick terminated the grand jury
after just one day. He maintained that the lab report would not be
Brady material if prosecutors did not know Thompson’s
blood type. Tr. 986; cf.
supra, at 7, n. 6. And he
told the investigating prosecutor that the grand jury “w[ould] make
[his] job more difficult.” Tr. 978–979. In protest, that prosecutor
tendered his resignation.
F
Thereafter, the Louisiana Court
of Appeal reversed Thompson’s murder conviction.
State v.
Thompson, 2002–0361, p. 10 (7/17/02), 825 So. 2d 552,
558. The unlawfully procured robbery conviction, the court held,
had violated Thompson’s right to testify and thus fully present his
defense in the murder trial.
Id., at 557. The merits of
several
Brady claims arising out of the murder trial, the
court observed, had therefore become “moot.” 825 So. 2d, at
555; see also Record 684.[
Footnote
9] But cf.
ante, at 10–11, n. 7, 16–17, n. 11
(suggesting that there were no
Brady violations in the
murder prosecution because no court had adjudicated any
violations).[
Footnote
10]
Undeterred by his assistants’
disregard of Thompson’s rights, Connick retried him for the Liuzza
murder. Thompson’s defense was bolstered by evidence earlier
unavailable to him: ten exhibits the prosecution had not disclosed
when Thompson was first tried. The newly produced items included
police reports describing the assailant in the murder case as
having “close cut” hair, the police report recounting Perkins’
meetings with the Liuzza family, see
supra, at 3–4, audio
recordings of those meetings, and a 35-page supplemental police
report. After deliberating for only 35 minutes, the jury found
Thompson not guilty.
On May 9, 2003, having served more than 18
years in prison for crimes he did not commit, Thompson was
released.
II
On July 16, 2003, Thompson
commenced a civil action under 42 U. S. C. §1983 alleging that
Connick, other officials of the Orleans Parish District Attorney’s
Office, and the Office itself, had violated his constitutional
rights by wrongfully withholding
Brady evidence. Thompson
sought to hold Connick and the District Attorney’s Office liable
for failure adequately to train prosecutors concerning their
Brady obligations. Such liability attaches, I agree with
the Court, only when the failure “amount[s] to ‘deliberate
indifference to the rights of persons with whom the [untrained
employees] come into contact.’ ”
Ante, at 9 (quoting
Canton v.
Harris,
489
U. S. 378, 388 (1989)). I disagree, however, with the Court’s
conclusion that Thompson failed to prove deliberate
indifference.
Having weighed all the evidence,
the jury in the §1983 case found for Thompson, concluding that the
District Attorney’s Office had been deliberately indifferent to
Thompson’s
Brady rights and to the need for training and
supervision to safeguard those rights. “Viewing the evidence in the
light most favorable to [Thompson], as appropriate in light of the
verdic[t] rendered by the jury,”
Patrick v.
Burget,
486
U. S. 94, 98, n. 3 (1988), I see no cause to upset the District
Court’s determination, affirmed by the Fifth Circuit, that “ample
evidence … adduced at trial” supported the jury’s verdict. Record
1917.
Over 20 years ago, we observed that a
municipality’s failure to provide training may be so egregious
that, even without notice of prior constitutional violations, the
failure “could properly be characterized as ‘deliberate
indifference’ to constitutional rights.”
Canton, 489 U.
S., at 390, n. 10. “[I]n light of the duties assigned to specific
officers or employees,”
Canton recognized, “it may happen
that … the need for more or different training is so obvious, and
the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers … can reasonably be
said to have been deliberately indifferent to the need.”
Id., at 390. Thompson presented convincing evidence to
satisfy this standard.
A
Thompson’s §1983 suit proceeded
to a jury trial on two theories of liability: First, the Orleans
Parish Office’s official
Brady policy was
unconstitutional; and second, Connick was deliberately indifferent
to an obvious need to train his prosecutors about their
Brady obligations. Connick’s
Brady policy
directed prosecutors to “turn over what was required by state and
federal law, but no more.” Brief for Petitioners 6–7. The jury thus
understandably rejected Thompson’s claim that the official policy
itself was unconstitutional.
Ante, at 5.
The jury found, however, that
Connick was deliberately indifferent to the need to train
prosecutors about
Brady’s command. On the special verdict
form, the jury answered yes to the following question:
“Was the
Brady violation in the armed
robbery case or any infringements of John Thompson’s rights in the
murder trial substantially caused by [Connick’s] failure, through
deliberate indifference, to establish policies and procedures to
protect one accused of a crime from these constitutional
violations?” Record 1585.
Consistent with the question put
to the jury, and without objection, the court instructed the
jurors: “[Y]ou are not limited to the nonproduced blood evidence
and the resulting infringement of Mr. Thompson’s right to testify
at the murder trial. You may consider all of the evidence presented
during this trial.” Tr. 1099; Record 1620.[
Footnote 11] But cf.
ante, at 2, 6,
10, n. 7, 16;
ante, at 1 (Scalia, J., concurring)
(maintaining that the case involves a single
Brady
violation). That evidence included a stipulation that in his
retrial for the Liuzza murder, Thompson had introduced ten exhibits
containing relevant information withheld by the prosecution in
1985. See
supra, at 13.
Abundant evidence supported the jury’s finding
that additional
Brady training was obviously necessary to
ensure that
Brady violations would not occur: (1) Connick,
the Office’s sole policymaker, misunderstood
Brady. (2)
Other leaders in the Office, who bore direct responsibility for
training less experienced prosecutors, were similarly uninformed
about
Brady. (3) Prosecutors in the Office received no
Brady training. (4) The Office shirked its responsibility
to keep prosecutors abreast of relevant legal developments
concerning
Brady requirements. As a result of these
multiple shortfalls, it was hardly surprising that
Brady
violations in fact occurred, severely undermining the integrity of
Thompson’s trials.
1
Connick was the Office’s sole
policymaker, and his testimony exposed a flawed understanding of a
prosecutor’s
Brady obligations. First, Connick admitted to
the jury that his earlier understanding of
Brady, conveyed
in prior sworn testimony, had been too narrow. Tr. 181–182. Second,
Connick confessed to having withheld a crime lab report “one time
as a prosecutor and I got indicted by the U. S. Attorney over here
for doing it.”
Id., at 872. Third, even at trial Connick
persisted in misstating
Brady’s requirements. For example,
Connick urged that there could be no
Brady violation
arising out of “the inadvertent conduct of [an] assistant under
pressure with a lot of case load.” Tr. 188–189. The court, however,
correctly instructed the jury that, in determining whether there
has been a
Brady violation, the “good or bad faith of the
prosecution does not matter.” Tr. 1094–1095.
2
The testimony of other leaders in
the District Attorney’s Office revealed similar misunderstandings.
Those misunderstandings, the jury could find, were in large part
responsible for the gross disregard of
Brady rights
Thompson experienced. Dubelier admitted that he never reviewed
police files, but simply relied on the police to flag any potential
Brady information. Tr. 542. The court, however, instructed
the jury that an individual prosecutor has a “duty … to learn of
any favorable evidence known to others acting on the government’s
behalf in the case, including the police.”
Id., at 1095;
Record 1614. Williams was asked whether “
Brady material
includes documents in the possession of the district attorney that
could be used to impeach a witness, to show that he’s lying”; he
responded simply, and mistakenly, “No.” Tr. 381. The testimony of
“high-ranking individuals in the Orleans Parish District Attorney’s
Office,” Thompson’s expert explained,[
Footnote 12] exposed “complete errors … as to what
Brady required [prosecutors] to do.”
Id., at 427,
434. “Dubelier had no understanding of his obligations under
Brady whatsoever,”
id., at 458, the expert
observed, and Williams “is still not sure what his obligations were
under
Brady,”
id., at 448. But cf.
ante,
at 4–5 (“[I]t was undisputed at trial that the prosecutors were
familiar with the general
Brady requirement that the State
disclose to the defense evidence in its possession that is
favorable to the accused.”).
The jury could attribute the
violations of Thompson’s rights directly to prosecutors’
misapprehension of
Brady. The prosecution had no
obligation to produce the “close-cut hair” police reports, Williams
maintained, because newspaper reports had suggested that witness
descrip- tions were not consistent with Thompson’s appearance.
Therefore, Williams urged, the defense already “had everything.”
Tr. 139. Dubelier tendered an alternative ex- planation for the
nondisclosure. In Dubelier’s view, the descriptions were not
“inconsistent with [Thompson’s] appearance,” as portrayed in a
police photograph showing Thompson’s hair extending at least three
inches above his forehead.
Id., at 171–172; Record EX73.
Williams insisted that he had discharged the prosecution’s duty to
disclose the blood evidence by mentioning, in a motion hearing,
that the prosecution intended to obtain a blood sample from
Thompson. Tr. 393–394. During the armed robbery trial, Williams
told one of the victims that the results of the blood test made on
the swatch had been “inconclusive.”
Id., at 962. And he
testified in the §1983 action that the lab report was not
Brady material “because I didn’t know what the blood type
of Mr. Thompson was.” Tr. 393. But see
supra, at 6–7,
n. 5 (District Court instructed the jury that the lab report
was
Brady material).
3
Connick should have comprehended
that Orleans Parish prosecutors lacked essential guidance on
Brady and its application. In fact, Connick has
effectively conceded that
Brady training in his Office was
inadequate. Tr. of Oral Arg. 60. Connick explained to the jury that
prosecutors’ offices must “make … very clear to [new prosecutors]
what their responsibility [i]s” under
Brady and must not
“giv[e] them a lot of leeway.” Tr. 834–835. But the jury heard
ample evidence that Connick’s Office gave prosecutors no
Brady guidance, and had installed no procedures to monitor
Brady compliance.
In 1985, Connick acknowledged,
many of his prosecutors “were coming fresh out of law school,” and
the Office’s “[h]uge turnover” allowed attorneys with little
experience to advance quickly to supervisory positions. See Tr.
853–854, 832. By 1985, Dubelier and Williams were two of the
highest ranking attorneys in the Office,
id., at 342,
356–357, yet neither man had even five years of experience as a
prosecutor, see
supra, at 5, n. 3; Record EX746; Tr.
55, 571–576.
Dubelier and Williams learned the
prosecutorial craft in Connick’s Office, and, as earlier observed,
see
supra, at 17–18, their testimony manifested a woefully
deficient understanding of
Brady. Dubelier and Williams
told the jury that they did not recall any
Brady training
in the Office. Tr. 170–171, 364.
Connick testified that he relied on
supervisors, including Dubelier and Williams, to ensure prosecutors
were familiar with their
Brady obligations. Tr. 805–806.
Yet Connick did not inquire whether the supervisors themselves
understood the importance of teaching newer prosecutors about
Brady. Riehlmann could not “recall that [he] was ever
trained or instructed by anybody about [his]
Brady
obligations,” on the job or otherwise. Tr. 728–729. Whittaker
agreed it was possible for “inexperienced lawyers, just a few weeks
out of law school with no training,” to bear responsibility for
“decisions on … whether material was
Brady material and
had to be produced.”
Id., at 319.
Thompson’s expert characterized Connick’s
supervision regarding
Brady as “the blind leading the
blind.” Tr. 458. For example, in 1985 trial attorneys “sometimes …
went to Mr. Connick” with
Brady questions, “and he would
tell them” how to proceed. Tr. 892. But Connick acknowledged that
he had “stopped reading law books … and looking at opinions” when
he was first elected District Attorney in 1974.
Id., at
175–176.
As part of their training, prosecutors
purportedly attended a pretrial conference with the Office’s chief
of trials before taking a case to trial. Connick intended the
practice to provide both training and accountability. But it
achieved neither aim in Thompson’s prosecutions, for Dubelier and
Williams, as senior prosecutors in the Office, were free to take
cases to trial without pretrying them, and that is just how they
proceeded in Thompson’s prosecutions.
Id., at 901–902;
Record 685. But cf.
ante, at 13 (“[T]rial chiefs oversaw
the preparation of the cases.”).
Prosecutors confirmed that training in the
District Attorney’s Office, overall, was deficient. Soon after
Connick retired, a survey of assistant district attorneys in the
Office revealed that more than half felt that they had not received
the training they needed to do their jobs. Tr. 178.
Thompson, it bears emphasis, is not
complaining about the absence of formal training sessions. Tr. of
Oral Arg. 55. But cf.
ante, at 15–16. His complaint does
not demand that
Brady compliance be enforced in any
particular way. He asks only that
Brady obligations be
communicated accurately and genuinely enforced.[
Footnote 13] Because that did not happen in the
District Attorney’s Office, it was inevitable that prosecutors
would misapprehend
Brady. Had
Brady’s importance
been brought home to prosecutors, surely at least one of the four
officers who knew of the swatch and lab report would have revealed
their existence to defense counsel and the court.[
Footnote 14]
4
Louisiana did not require
continuing legal education at the time of Thompson’s trials. Tr.
361. But cf.
ante, at 12–13. Primary responsibility for
keeping prosecutors
au courant with developments in the
law, therefore, resided in the District Attorney’s Office. Over the
course of Connick’s tenure as District Attorney, the jury learned,
the Office’s chief of appeals circulated memoranda when appellate
courts issued important opinions. Tr. 751–754, 798.
The 1987 Office policy manual was
a compilation of memoranda on criminal law and practice circulated
to prosecutors from 1974, when Connick became District Attorney,
through 1987.
Id., at 798. The manual contained four
sentences, nothing more, on
Brady.[
Footnote 15] This slim instruction, the jury
learned, was notably inaccurate, incomplete, and dated. Tr.
798–804, 911–918. But cf.
ante, at 13 (“Senior attorneys
also circulated court decisions and instructional memoranda to keep
the prose-cutors abreast of relevant legal developments.”). For
example, the manual did not acknowledge what
Giglio v.
United States,
405 U. S. 150 (1972),
made plain: Impeachment evidence is
Brady material
prosecutors are obligated to disclose.[
Footnote 16]
In sum, the evidence permitted the jury to
reach the following conclusions. First, Connick did not ensure that
prosecutors in his Office knew their
Brady obligations; he
neither confirmed their familiarity with
Brady when he
hired them, nor saw to it that training took place on his watch.
Second, the need for
Brady training and monitoring was
obvious to Connick. Indeed he so testified. Third, Connick’s
cavalier approach to his staff’s knowledge and observation of
Brady requirements contributed to a culture of inattention
to
Brady in Orleans Parish.
As earlier noted, see
supra, at 11,
Connick resisted an effort to hold prosecutors accountable for
Brady compliance because he felt the effort would “make
[his] job more difficult.” Tr. 978. He never disciplined or fired a
single prosecutor for violating
Brady. Tr. 182–183. The
jury was told of this Court’s decision in
Kyles v.
Whitley,
514 U. S. 419 (1995), a capital case
prosecuted by Connick’s Office that garnered attention because it
featured “so many instances of the state’s failure to disclose
exculpatory evidence.”
Id., at 455 (Stevens, J.,
concurring). When questioned about
Kyles, Connick told the
jury he was satisfied with his Office’s practices and saw no need,
occasioned by
Kyles, to make any changes. Tr. 184–185. In
both quantity and quality, then, the evidence canvassed here was
more than sufficient to warrant a jury determination that Connick
and the prosecutors who served under him were not merely negligent
regarding
Brady. Rather, they were deliberately
indifferent to what the law requires.
B
In
Canton, this Court
spoke of circumstances in which the need for training may be “so
obvious,” and the lack of training “so likely” to result in
constitutional violations, that policymakers who do not provide for
the requisite training “can reasonably be said to have been
deliberately indifferent to the need” for such training. 489 U. S.,
at 390. This case, I am convinced, belongs in the category
Canton marked out.
Canton offered an
often-cited illustration. “[C]ity policymakers know to a moral
certainty that their police officers will be required to arrest
fleeing felons.”
Ibid., n. 10. Those policymakers,
Canton observed, equip police officers with firearms to
facilitate such arrests.
Ibid. The need to instruct armed
officers about “constitutional limitations on the use of deadly
force,”
Canton said, is “ ‘so obvious,’ that failure
to [train the officers] could properly be characterized as
‘deliberate indifference’ to constitutional rights.”
Ibid.
The District Court, tracking
Canton’s
language, instructed the jury that Thompson could prevail on his
“deliberate indifference” claim only if the evidence persuaded the
jury on three points. First, Connick “was certain that prosecutors
would confront the situation where they would have to decide which
evidence was required by the Constitution to be provided to the
accused.” Tr. 1099. Second, “the situation involved a difficult
choice[,] or one that prosecutors had a history of mishandling,
such that additional training, supervision or monitoring was
clearly needed.”
Ibid. Third, “the wrong choice by a
prosecutor in that situation would frequently cause a deprivation
of an accused’s constitutional rights.”
Ibid.; Record
1619–1620; see
Canton, 489 U. S., at 390, and n. 10;
Walker v.
New York, 974 F. 2d 293, 297–298
(CA2 1992).[
Footnote 17]
Petitioners used this formulation of the
failure to train standard in pretrial and post-trial submissions,
Record 1256–1257, 1662, and in their own proposed jury instruction
on deliberate indifference.[
Footnote 18] Nor do petitioners dispute that Connick
“kn[e]w to a moral certainty that” his prosecutors would regularly
face
Brady decisions. See
Canton, 489 U. S., at
390, n. 10.
The jury, furthermore, could reasonably find
that
Brady rights may involve choices so difficult that
Connick obviously knew or should have known prosecutors needed more
than perfunctory training to make the correct choices. See
Canton, 489 U. S., at 390, and n. 10.[
Footnote 19] As demonstrated earlier, see
supra, at 16–18, even at trial prosecutors failed to give
an accurate account of their
Brady obligations. And, again
as emphasized earlier, see
supra, at 18–20, the evidence
permitted the jury to conclude that Connick should have known
Brady training in his office bordered on “zero.” See Tr.
of Oral Arg. 41. Moreover, Connick understood that newer
prosecutors needed “very clear” guidance and should not be left to
grapple with
Brady on their own. Tr. 834–835. It was thus
“obvious” to him, the jury could find, that constitutional rights
would be in jeopardy if prosecutors received slim to no
Brady training.
Based on the evidence presented, the jury
could conclude that
Brady errors by untrained prosecutors
would frequently cause deprivations of defendants’ constitutional
rights. The jury learned of several
Brady oversights in
Thompson’s trials and heard testimony that Connick’s Office had one
of the worst
Brady records in the country. Tr. 163.
Because prosecutors faced considerable pressure to get convictions,
id., at 317, 341, and were instructed to “turn over what
was required by state and federal law, but no more,” Brief for
Petitioners 6–7, the risk was all too real that they would err by
withholding rather than revealing information favorable to the
defense.
In sum, despite Justice Scalia’s protestations
to the contrary,
ante, at 1, 5, the
Brady
violations in Thompson’s prosecutions were not singular and they
were not aberrational. They were just what one would expect given
the attitude toward
Brady pervasive in the District
Attorney’s Office. Thompson demonstrated that no fewer than five
prosecutors—the four trial prosecutors and Riehlmann—disregarded
his
Brady rights. He established that they kept from him,
year upon year, evidence vital to his defense. Their conduct, he
showed with equal force, was a foreseeable consequence of lax
training in, and absence of monitoring of, a legal requirement
fundamental to a fair trial.[
Footnote 20]
C
Unquestionably, a municipality
that leaves police officers untrained in constitutional limits on
the use of deadly weapons places lives in jeopardy.
Canton, 489 U. S., at 390, n. 10. But as this case so
vividly shows, a municipality that empowers prosecutors to press
for a death sentence without ensuring that those prosecutors know
and honor
Brady rights may be no less “deliberately
indifferent” to the risk to innocent lives.
Brady, this Court has
long recognized, is among the most basic safeguards brigading a
criminal defendant’s fair trial right. See
Cone v.
Bell, 556 U. S. ___, ___ (2009) (slip op., at 1). See also
United States v.
Bagley,
473 U. S. 667, 695 (1985) (Marshall,
J., dissenting). Vigilance in superintending prosecutors’ attention
to
Brady’s requirement is all the more important for this
reason: A
Brady violation, by its nature, causes
suppression of evidence beyond the defendant’s capacity to ferret
out. Because the absence of the withheld evidence may result in the
conviction of an innocent defendant, it is unconscionable not to
impose reasonable controls impelling prosecutors to bring the
information to light.
The Court nevertheless holds
Canton’s
example inapposite. It maintains that professional obligations,
ethics rules, and training—including on-the-job training—set
attorneys apart from other municipal employees, including rookie
police officers.
Ante, at 12–15. Connick “had every
incentive at trial to attempt to establish” that he could
reasonably rely on the professional education and status of his
staff. Cf.
ante, at 10, n. 6. But the jury heard and
rejected his argument to that effect. Tr. 364, 576–577,
834–835.
The Court advances Connick’s argument with
greater clarity, but with no greater support. On what basis can one
be confident that law schools acquaint students with
prosecutors’ unique obligation under Brady? Whittaker
told the jury he did not recall covering Brady in his
criminal procedure class in law school. Tr. 335. Dubelier’s
alma mater, like most other law faculties, does not make
criminal procedure a required course.[Footnote 21]
Connick suggested that the bar
examination ensures that new attorneys will know what
Brady demands. Tr. 835. Research indicates, however, that
from 1980 to the present, Brady questions have not
accounted for even 10% of the total points in the criminal law and
procedure section of any administration of the Louisiana Bar
Examination.[Footnote 22] A
person sitting for the Louisiana Bar Examination, moreover, need
pass only five of the exam’s nine sections.[Footnote 23] One can qualify for admission to
the profession with no showing of even passing knowledge of
criminal law and procedure.
The majority’s suggestion that
lawyers do not need Brady training because they “are
equipped with the tools to find, interpret, and apply legal
principles,” ante, at 17–18, “blinks reality” and is
belied by the facts of this case. See Brief for Former Federal
Civil Rights Officials and Prosecutors as Amici Curiae 13.
Connick himself recognized that his prosecutors, because of their
inexperience, were not so equipped. Indeed, “understanding and
complying with Brady obligations are not easy tasks, and
the appropriate way to resolve Brady issues is not always
self-evident.” Brief for Former Federal Civil Rights Officials and
Prosecutors as Amici Curiae 6. “Brady
compliance,” therefore, “is too much at risk, and too fundamental
to the fairness of our criminal justice system, to be taken for
granted,” and “training remains critical.” Id., at 3,
7.
The majority further suggests that
a prior pattern of similar violations is necessary to show
deliberate indifference to defendants’ Brady rights. See
ante, at 5–6, and n. 4, 11–12.[Footnote 24] The text of §1983 contains no such
limitation.[Footnote 25] Nor
is there any reason to imply such a limitation.[Footnote 26] A district attorney’s deliberate
indifference might be shown in several ways short of a prior
pattern.[Footnote 27] This
case is one such instance. Connick, who himself had been indicted
for suppression of evidence, created a tinderbox in Orleans Parish
in which Brady violations were nigh inevitable. And when
they did occur, Connick insisted there was no need to change
anything, and opposed efforts to hold prosecutors accountable on
the ground that doing so would make his job more
difficult.
A District Attorney aware of his
office’s high turnover rate, who recruits prosecutors fresh out of
law school and promotes them rapidly through the ranks, bears
responsibility for ensuring that on-the-job training takes place.
In short, the buck stops with him.[Footnote 28] As the Court recognizes, “the duty to
produce Brady evidence to the defense” is “[a]mong
prosecutors’ unique ethical obligations.” Ante, at 13. The
evidence in this case presents overwhelming support for the
conclusion that the Orleans Parish Office slighted its
responsibility to the profession and to the State’s system of
justice by providing no on-the-job Brady training. Connick
was not “entitled to rely on prosecutors’ professional training,”
ante, at 14, for Connick himself should have been the
principal insurer of that training.
* * *
For the reasons
stated, I would affirm the judgment of the U. S. Court of Appeals
for the Fifth Circuit. Like that court and, before it, the District
Court, I would uphold the jury’s verdict awarding damages to
Thompson for the gross, deliberately indifferent, and
long-continuing violation of his fair trial right.
Footnote 1
Exhibits entered into evidence in
Thompson’s §1983 trial are herein cited by reference to the page
number in the exhibit binder compiled by the District Court and
included in the record on appeal.
Footnote 2
The majority endorses the Fifth
Circuit’s conclusion that, when Thompson was tried for murder, no
Brady violation occurred with respect to these audio tapes
“[b]ecause defense counsel had knowledge of such evidence and could
easily have requested access from the prosecution.”
Thompson v. Cain, 161 F. 3d 802, 806–807
(1998); ante, at 17, n. 11. The basis for that
asserted “knowledge” is a mystery. The recordings secretly made did
not come to light until long after Thompson’s trials.
Footnote 3
At the time of their assignment,
Dubelier had served in the District Attorney’s Office for three and
a half years, Williams, for four and a half years, Deegan, a recent
law school graduate, for less than one year, and Whittaker, for
three years.
Footnote 4
Connick did not dispute that
failure to disclose the swatch and the crime lab report violated
Brady. See Tr. 46, 1095. But cf. ante, at 4, 6
(limiting Connick’s concession, as Connick himself did not, to
failure to disclose the crime lab report).
In Justice Scalia’s contrary view,
“[t]here was probably no Brady violation at all,” or, if
there was any violation of Thompson’s rights, it “was surely on the
very frontier of our Brady jurisprudence,” such that
“Connick could not possibly have been on notice” of the need to
train. Ante, at 7. Connick’s counsel, however, saw the
matter differently. “[A]ny reasonable prosecutor would have
recognized blood evidence as Brady material,” he said,
indeed “the proper response” was “obvious to all.” Record 1663,
1665.
Footnote 5
The majority assails as “highly
suspect” the suggestion that prosecutors violated Brady by
failing to disclose the blood-stained swatch. See ante, at
17, n. 11. But the parties stipulated in Thompson’s §1983
action, and the jury was so informed, that, “[p]rior to the armed
robbery trial, Mr. Thompson and his attorneys were not advised of
the existence of the blood evidence, that the evidence had been
tested, [or] that a blood type was determined definitively from the
swatch … .” Tr. 46. Consistent with this stipulation,
Thompson’s trial counsel testified that he spoke to “[t]he clerk
who maintain[ed] the evidence” and learned that “[t]hey didn’t have
any blood evidence.” Id., at 401. And the District Court
instructed the jury, with no objection from Connick, “that the
nonproduced blood evidence … violated [Thompson’s] constitutional
rights as a matter of law.” Id., at 1095.
Footnote 6
Justice Scalia questions
petitioners’ concession that Brady was violated when the
prosecution failed to inform Thompson of the blood evidence. He
considers the evidence outside Brady because the
prosecution did not endeavor to test Thompson’s blood, and
therefore avoided knowing that the evidence was in fact
exculpatory. Ante, at 6–7. Such a “don’t ask, don’t tell”
view of a prosecutor’s Brady obligations garners no
support from precedent. See also supra, at 6, n. 4;
infra, at 21, n. 13.
Footnote 7
During jury deliberations in the
armed robbery case, Williams, the only Orleans Parish trial
attorney common to the two prosecutions, told Thompson of his
objective in no uncertain terms: “I’m going to fry you. You will
die in the electric chair.” Tr. 252–253.
Footnote 8
The Louisiana Court of Appeal
concluded, and Connick does not dispute, that Thompson “would have
testified in the absence of the attempted armed robbery
conviction.” State v. Thompson, 2002–0361, p. 7
(7/17/02), 825 So. 2d 552, 556. But cf. ante, at 1, 3
(Thompson “elected” not to testify).
Footnote 9
Thompson argued that “the State
failed to produce police reports ‘and other information’ which
would have identified ‘eye- and ear-witnesses’ whose testimony
would have exonerated him and inculpated [Freeman], … and would
have shown that [Perkins,] … who stated [he] heard [Thompson] admit
to committing the murder[,] had been promised reward money for
[his] testimony.” Thompson, 825 So. 2d, at 555. In
leaving these arguments unaddressed, the Louisiana Court of Appeal
surely did not defer to the Fifth Circuit’s earlier assessment of
those claims, made on an anemic record, in Thompson v.
Cain, 161 F. 3d 802. Nor did the Louisiana Court of
Appeal suggest that Thompson was “belatedly tr[ying] to reverse”
the Fifth Circuit’s decision. But cf. ante, at 17,
n. 11.
Footnote
10
The Court notes that in
Thompson v. Cain, the Fifth Circuit rejected
Brady claims raised by Thompson, characterizing one of
those claims as “without merit.” Ante, at 17, n. 11
(quoting Thompson, 161 F. 3d, at 807); see
supra, at 4, n. 2. The Court, however, overlooks the
date of that Fifth Circuit decision. It was rendered before
revelation of the Brady violations in the armed robbery
trial, before Thompson had the opportunity for discovery in his
§1983 suit, and before Thompson or any court was aware of the
“close cut hair” police reports. See Thompson, 161
F. 3d, at 812, n. 8. It is these later revelations, not
the little Thompson knew in 1998, that should count. For example,
the Fifth Circuit, in 1998, believed that Perkins’ statement
recorded in the police report did not “differ from Freeman’s trial
testimony.” Id., at 808. But evidence put before the jury
in 2007 in the §1983 trial showed that the police report, in
several material respects, was inconsistent with Freeman’s trial
testimony. Tr. 382–383.
Connick has never suggested to this Court that the
jury in the §1983 trial was bound by the Fifth Circuit’s 1998
Brady rulings. That court “afford[ed] great deference to”
the state trial court’s findings, made after a 1995 post-conviction
relief hearing. Thompson, 161 F. 3d, at 805. The jury
in the §1983 trial, of course, had far more extensive and accurate
information on which to reach its decision. Moreover, as earlier
noted, the same trial court that made the 1995 findings was, in
1999, outraged by the subsequently discovered Brady
violations and by Connick’s reluctance to bring those violations to
light. See supra, at 10–11. Certainly that judge would not
have wanted the jury that assessed Connick’s deliberate
indifference in the §1983 trial to defer to findings he earlier
made on a notably incomplete record.
Footnote
11
The court permitted Thompson to
introduce evidence of other Brady violations, but because
“the blood evidence alone proved the violation [of Thompson’s
constitutional rights],” the court declined specifically “to ask
the jury [whether] this other stuff [was] also Brady.” Tr.
1003. The court allowed Thompson to submit proof of other
violations to “sho[w] the cumulative nature … and impact [of]
evidence … as to … the training and deliberate indifference
… .” Ibid. But cf. ante, at 17, n. 11
(questioning how “these violations are relevant” to this case). Far
from indulging in my own factfindings, but cf. ante, at
16–17, n. 11, I simply recite the evidence supporting the
jury’s verdict in Thompson’s §1983 trial.
The Court misleadingly states that
“the District Court instructed the jury that the ‘only issue’ was
whether the nondisclosure [of the crime lab report] was caused by
either a policy, practice, or custom of the dis-trict attorney’s
office or a deliberately indifferent failure to train the office’s
prosecutors.” Ante, at 4. The jury instruction the
majority cites simply directed the jury that, with regard to the
blood evidence, as a matter of law, Thompson’s constitutional
rights had been violated. Record 1614–1615. The court did not
preclude the jury from assessing evidence of other infringements of
Thompson’s rights. Id., at 1585; see Kyles v.
Whitley, 514 U. S. 419, 421 (1995) (“[T]he
state’s obligation under Brady … turns on the cumulative
effect of all … evidence suppressed by the government
… .”).
Footnote
12
With no objection from
petitioners, the court found Thompson’s expert, Joseph Lawless,
qualified to testify as an expert in criminal law and procedure.
Tr. 419, 426. Lawless has practiced criminal law for 30 years; from
1976 to 1979, he was an assistant district attorney, and thereafter
he entered private practice. Id., at 412. He is the author
of Prosecutorial Misconduct: Law, Procedure, Forms (4th ed. 2008),
first published in 1985. Tr. 414. The text is used in a class on
ethics and tactics for the criminal lawyer at Harvard Law School
and in the federal defender training program of the Administrative
Office of the United States Courts. Id., at
416.
Footnote
13
To ward off Brady
violations of the kind Connick conceded, for example, Connick could
have communicated to Orleans Parish prosecutors, in no uncertain
terms, that, “[i]f you have physical evidence that, if tested, can
establish the innocence of the person who is charged, you have to
turn it over.” Tr. of Oral Arg. 34; id., at 36 (“[I]f you
have evidence that can conclusively establish to a scientific
certainty the innocence of the person being charged, you have to
turn it over … .”). Or Connick could have told prosecutors
what he told the jury when he was asked whether a prosecutor must
disclose a crime lab report to the defense, even if the prosecutor
does not know the defendant’s blood type: “Under the law it
qualifies as Brady material. Under Louisiana law we must
turn that over. Under Brady we must turn that over. I
[failed to disclose a crime lab report] one time as a prosecutor
and I got indicted by the U. S. Attorney over here for doing it.”
Tr. 872. But cf. ante, at 7 (Scalia, J., concurring)
(questioning how Connick could have been on notice of the need to
train prosecutors about the Brady violations conceded in
this case).
Footnote
14
The Court can scarcely disagree
with respect to Dubelier, Williams, and Whittaker, for it
acknowledges the “flagran[cy]” of Deegan’s conduct, see
ante, at 7, n. 5, and does not dispute that, pretrial,
other prosecutors knew of the existence of the swatch and lab
report.
Footnote
15
Section 5.25 of the manual,
titled “Brady Material,” states in full:
“In most cases, in response to the request of
defense attorneys, the Judge orders the State to produce so called
Brady material—that is, information in the possession of
the State which is exculpatory regarding the defendant. The duty to
produce Brady material is ongoing and continues throughout
the entirety of the trial. Failure to produce Brady
material has resulted in mistrials and reversals, as well as
extended court battles over jeopardy issues. In all cases, a review
of Brady issues, including apparently self-serving
statements made by the defendant, must be included in a pre-trial
conference and each Assistant must be familiar with the law
regarding exculpatory information possessed by the State.” Record
EX427.
Footnote
16
During the relevant time period,
there were many significant developments in this Court’s
Brady jurisprudence. Among the Brady-related
decisions this Court handed down were United States v.
Bagley, 473 U. S. 667, 676 (1985) (“This Court
has rejected any … distinction between impeachment evidence and
exculpatory evidence [in the Brady context].”);
Weatherford v. Bursey, 429 U. S. 545, 559–560
(1977) (“Brady is not implicated … where the only claim is
that the State should have revealed that it would present the
eyewitness testimony of a particular agent against the defendant at
trial.”); and United States v. Agurs, 427 U. S. 97, 103, 104,
106–107 (1976) (Brady claim may arise when “the
undisclosed evidence demonstrates that the prosecution’s case
includes perjured testimony and that the prosecution knew, or
should have known, of the perjury,” when defense counsel makes “a
pretrial request for specific evidence” and the government fails to
accede to that request, and when defense counsel makes no request
and the government fails to disclose “obviously exculpatory”
evidence). These decisions were not referenced in the manual that
compiled circulated memoranda.
In the same period, the Louisiana
Supreme Court issued dozens of opinions discussing Brady,
including State v. Sylvester, 388 So. 2d
1155, 1161 (1980) (impeachment evidence must be disclosed in
response to a specific request if it would create a “reasonable
doubt that did not otherwise exist”); State v.
Brooks, 386 So. 2d 1348, 1351 (1980) (Brady
extends to any material information favorable to the accused); and
State v. Carney, 334 So. 2d 415, 418–419
(1976) (reversible error if prosecution fails, even inadvertently,
to disclose bargain with a witness).
Footnote
17
Justice Scalia contends that this
“theory of deliberate indifference would repeal the law of
Monell,” and creates a danger that “ ‘failure to
train’ would become a talismanic incantation producing municipal
liability [i]n virtually every instance where a person has had his
or her constitutional rights violated by a city employee.”
Ante, at 2–3 (some internal quotation marks omitted). The
District Court’s charge, however, cautiously cabined the jury’s
assessment of Connick’s deliberate indifference. See,
e.g., Tr. 1100 (“Mr. Thompson must prove that more likely
than not the Brady material would have been produced if
the prosecutors involved in his underlying criminal cases had been
properly trained, supervised or monitored regarding the production
of Brady evidence.”). See also id., at 1096–1097,
1099–1100.
The deliberate indifference jury instruction in this
case was based on the Second Circuit’s opinion in Walker
v. New York, 974 F. 2d 293, 297–298 (1992), applying
Canton to a §1983 complaint alleging that a district
attorney failed to train prosecutors about Brady. Justice
Scalia’s fears should be calmed by post-Walker experience
in the Second Circuit. There has been no “litigation flood or even
rainfall,” Skinner v. Switzer, 562 U. S. ___
(2011) (slip op., at 12), in that Circuit in Walker’s
wake. See Brief for National Association of Criminal Defense
Lawyers as Amicus Curiae 39 (“Tellingly, in the Second
Circuit, in the nearly 20 years since the court decided
Walker, there have been no successful lawsuits for
non-Brady constitutional violations committed by
prosecutors at trial (and no reported ‘single violation’
Brady case).” (citation omitted)); Brief for Center on the
Administration of Criminal Law, New York University School of Law,
et al. as Amici Curiae 35–36 (Walker has
prompted “no flood of §1983 liability”).
Footnote
18
The instruction Connick proposed
resembled the charge given by the District Court. See
supra, at 24. Connick’s proposed instruction read: “Before
a district attorney’s failure to train or supervise constitutes
deliberate indifference to the constitutional rights of citizens:
(1) the plaintiff must show that Harry Connick knew ‘to a moral
certainty’ that his employees will confront a given situation; (2)
the plaintiff must show that the situation either presents the
employee with a difficult choice … such that training or
supervision will make the choice less difficult or that there is a
history of employees mishandling the situation; and (3) the
plaintiff must show that the wrong choice by the assistant district
attorney will frequently cause the deprivation of a citizen’s
constitutional rights.” Record 992 (citing Canton, 489 U.
S., at 390; punctuation altered). But cf. ante, at 3
(Scalia, J., concurring) (criticizing “Thompson’s theory” of
deliberate indifference).
Petitioners, it is true, argued all along that “[t]o
prove deliberate indifference, Thompson had to demonstrate a
pattern of violations,” Brief for Appellants in No. 07–30443 (CA5),
p. 41; see ante, at 3–4 (Scalia, J., concurring), but the
court rejected their categorical position. Petitioners did not
otherwise assail the District Court’s formulation of the deliberate
indifference instruction. E.g., Record 1662.
Footnote
19
Courts have noted the often
trying nature of a prosecutor’s Brady obligation. See,
e.g., State v. Whitlock, 454 So. 2d
871, 874 (La. App. 1984) (recognizing, in a case involving
Brady issues in Connick’s Office, that “it is usually most
difficult to determine whether or not inconsistencies or omitted
information in witnesses’ statements are material to the
defendant’s guilt” (quoting State v. Davenport,
399 So. 2d 201, 204 (La. 1981))).
Footnote
20
The jury could draw a direct,
causal connection between Connick’s deliberate indifference,
prosecutors’ misapprehension of Brady, and the
Brady violations in Thompson’s case. See, e.g.,
supra, at 17 (prosecutors’ misunderstandings of
Brady “were in large part responsible for the gross
disregard of Brady rights Thompson experienced”);
supra, at 18 (“The jury could attribute the violations of
Thompson’s rights directly to prosecutors’ misapprehension of
Brady.”); supra, at 17–18 (Williams did not
believe Brady required disclosure of impeachment evidence
and did not believe he had any obligation to turn over the
impeaching “close-cut hair” police reports); supra, at 18
(At the time of the armed robbery trial, Williams reported that the
results of the blood test on the swatch were “inconclusive”);
ibid. (“[Williams] testified … that the lab report was not
Brady material … .”); supra, at 19–20
(Dubelier and Williams, the lead prosecutors in Thompson’s trials,
“learned the prosecutorial craft in Connick’s Office,” “did not
recall any Brady training,” demonstrated “a woefully
deficient understanding of Brady,” and received no
supervision during Thompson’s trials); supra, at 21 (“Had
Brady’s importance been brought home to prosecutors,
surely at least one of the four officers who knew of the swatch and
lab report would have revealed their existence to defense counsel
and the court.”); supra, at 23 (Connick did not want to
hold prosecutors accountable for Brady compliance because
he felt that doing so would make his job more difficult);
supra, at 23 (Connick never disciplined a single
prosecutor for violating Brady); supra, at 27
(“Because prosecutors faced considerable pressure to get
convictions, and were instructed to turn over what was required by
state and federal law, but no more, the risk was all too real that
they would err by withholding rather than revealing information
favorable to the defense.” (citations and internal quotation marks
omitted)). But cf. ante, at 7, n. 5 (“The dissent
believes that evidence that the prosecutors allegedly
‘misapprehen[ded]’ Brady proves causation.”).
I note, furthermore, that the jury received clear
instructions on the causation element, and neither Connick nor the
majority disputes the accuracy or adequacy of the instruction that,
to prevail, Thompson must prove “that more likely than not the
Brady material would have been produced if the prosecutors
involved in his underlying criminal cases had been properly
trained, supervised or monitored regarding the production of
Brady evidence.” Tr. 1100.
The jury was properly instructed that “[f]or
liability to attach because of a failure to train, the fault must
be in the training program itself, not in any particular
prosecutor.” Id., at 1098. Under that instruction, in
finding Connick liable, the jury necessarily rejected the
argument—echoed by Justice Scalia—that Deegan “was the only bad
guy.” Id., at 1074. See also id., at 1057;
ante, at 5. If indeed Thompson had shown simply and only
that Deegan deliberately withheld evidence, I would agree that
there would be no basis for liability. But, as reams of evidence
showed, disregard of Brady occurred, over and over again
in Orleans Parish, before, during, and after Thompson’s 1985
robbery and murder trials.
Footnote
21
See Tulane University Law School,
Curriculum, http://www.law .tulane.edu (select “Academics”; select
“Curriculum”) (as visited Mar. 21, 2011, and in Clerk of Court’s
case file).
Footnote
22
See Supreme Court of Louisiana,
Committee on Bar Admissions, Compilation of Louisiana State Bar
Examinations, Feb. 1980 through July 2010 (available in Clerk of
Court’s case file).
Footnote
23
See La. State Bar Assn., Articles
of Incorporation, Art. 14, §10(A), La. Rev. Stat. Ann. §37, ch. 4,
App. (West 1974); ibid. (West 1988).
Footnote
24
Board of Comm’rs of Bryan
Cty. v. Brown, 520 U. S. 397 (1997),
reaffirmed “that evidence of a single violation of federal rights,
accompanied by a showing that a municipality has failed to train
its employees to handle recurring situations presenting an obvious
potential for such a violation, could trigger municipal liability.”
Id., at 409. Conducting this inquiry, the Court has
acknowledged, “may not be an easy task for the factfinder.”
Canton v. Harris, 489
U. S. 378, 391 (1989). Bryan County did not retreat
from this Court’s conclusion in Canton that “judge and
jury, doing their respective jobs, will be adequate to the task.”
489 U. S., at 391. See also Bryan County, 520 U. S., at
410 (absent a pattern, municipal liability may be predicated on “a
particular glaring omission in a training regimen”). But cf.
ante, at 16–18 (suggesting that under no set of facts
could a plaintiff establish deliberate indifference for failure to
train prosecutors in their Brady obligation without
showing a prior pattern of violations).
Footnote
25
When Congress sought to render a
claim for relief contingent on showing a pattern or practice, it
did so expressly. See, e.g., 42 U. S. C. §14141(a)
(“It shall be unlawful for any governmental authority … to engage
in a pattern or practice of conduct by law enforcement officers …
that deprives persons of rights … protected by the Constitution
… .”); 15 U. S. C. §6104(a) (“Any person adversely
affected by any pattern or practice of telemarketing … may … bring
a civil action … .”); 49 U. S. C. §306(e) (authorizing
the Attorney General to bring a civil action when he “has reason to
believe that a person is engaged in a pattern or practice [of]
violating this section”). See also 47 U. S. C. §532(e)(2)–(3)
(authorizing the Federal Communications Commission to establish
additional rules when “the Commission finds that the prior
adjudicated violations of this section constitute a pattern or
practice of violations”).
Footnote
26
In the end, the majority leaves
open the possibility that something other than “a pattern of
violations” could also give a district attorney “specific reason”
to know that additional training is necessary. See ante,
at 14–15. Connick, by his own admission, had such a reason. See
supra, at 18–20.
Footnote
27
For example, a prosecutor’s
office could be deliberately indifferent if it had a longstanding
open-file policy, abandoned that policy, but failed to provide
training to show prosecutors how to comply with their
Brady obligations in the altered circumstances. Or a
district attorney could be deliberately indifferent if he had a
practice of paring well-trained prosecutors with untrained
prosecutors, knew that such supervision had stopped untrained
prosecutors from committing Brady violations, but
nevertheless changed the staffing on cases so that untrained
prosecutors worked without supervision.
Footnote
28
If the majority reads this
statement as an endorsement of respondeat superior
liability, ante, at 18, n. 12, then it entirely
“misses [my] point,” cf. ante, at 17. Canton
recognized that deliberate indifference liability and
respondeat superior liability are not one and the same.
489 U. S., at 385, 388–389. Connick was directly responsible for
the Brady violations in Thompson’s prosecutions not
because he hired prosecutors who violated Brady, but
because of his own deliberate indifference.
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