A criminal prosecutor’s office may not be held civilly liable for failing to train its prosecutors based on a single violation of Brady v. Maryland.
Hotelier Raymond T. Liuzza, Jr., age 34, was gunned down by a robber shortly after midnight on December 6, 1984, on the 1700 block of Josephine Street in New Orleans, just around the corner from Liuzza’s residence. He was shot five times, including three times in the back. Because Liuzza was the son of a prominent executive, the murder received significant media attention. Approximately three weeks after the shooting, siblings Jay, Marie, and Michael LaGarde were the victims of an armed robbery while in their car in New Orleans. Jay LaGarde fought off the perpetrator and, in the scuffle, some of the perpetrator’s blood ended up on the cuff of Jay’s pants. As part of the police investigation, crime scene technicians took a swatch of the pants with the perpetrator’s blood on it. The following month, John Thompson, then 22-years old, and one Kevin Freeman, were arrested and charged with Liuzza’s murder. Following the arrests, Thompson’s picture was published in the
New Orleans Times-Picayune
. The LaGardes’ father showed his children the picture, and they believed that Thompson was the individual who had attempted to rob them. They contacted District Attorney Harry F. Connick’s Office and identified Thompson as the armed robber. The LaGardes’ armed robbery case was screened by Assistant District Attorney Bruce Whittaker as part of the case handling process that Connick had instituted. Screening was designed to identify the cases in which viable charges should be brought. Whittaker approved the armed robbery case for prosecution and, after noting that a crime scene technician had taken a swatch of Jay LaGarde’s pants with blood on it, opined that the government “[m]ay wish to do blood test.” Whittaker also indicated that the case should be handled by Eric Dubelier as a special prosecutor. Whittaker assigned the matter to Dubelier because Dubelier was prosecuting Thompson in the Liuzza murder case.
In a strategic move, Connick’s Office successfully petitioned the Orleans Parish Criminal District Court to switch the order of the trials where Thompson was the named defendant so that he would first be tried on the armed robbery charge. The idea was that a guilty verdict in the armed robbery case would make Thompson reluctant to take the stand in the murder trial because an armed robbery conviction could be entered into evidence against him as impeachment, if he testified, and increase the likelihood of the death penalty.
During the course of proceedings in the armed robbery case, one of Connick’s prosecutors noted in court that, “it’s the state’s intention to file a motion to take a blood sample from the defendant…” Apparently, however, the DA’s Office never sent anyone to test Thompson’s blood. Approximately one week before the armed robbery trial, the bloody swatch from Jay LaGarde’s pants was sent to be tested. Two days before the armed robbery trial, Whittaker received a crime lab report that stated that the armed robbery perpetrator’s blood type was type ‘B’. Whittaker stated that he placed the report on another prosecutor’s desk, but that prosecutor, a man named Williams, claims that he never saw the report. Regardless, the report was never turned over to Thompson or Thompson’s lawyers in violation of the decision in
Brady v. Maryland,
373 U. S. 83 (1963). Several days before the armed robbery trial, Dubelier asked Williams to act as lead prosecutor in the case. Therefore, the armed robbery case was tried by Williams and Assistant District Attorney Gerry Deegan over the course of two days in 1985. On the first day of trial, Deegan checked all of the armed robbery evidence out of the police property room, including the bloody swatch from Jay LaGarde’s pants. Deegan then checked the evidence into the court property room, but never checked in the pants swatch. Williams never mentioned the blood evidence at trial and relied primarily on eyewitness testimony. The jury found Thompson guilty of attempted armed robbery, and he was sentenced to forty-nine and one-half years in prison. Dubelier and Williams then tried Thompson for the Liuzza murder during the following month.
At the murder trial, Kevin Freeman, the other individual charged with murdering Liuzza, testified that Thompson shot Liuzza. Roger Perkins, an acquaintance of Thompson’s, testified that Thompson made incriminating statements about the Liuzza murder and that he claimed that he had sold Thompson’s gun for him. Due to his attempted armed robbery conviction, Thompson decided not to testify on his own behalf. The jury convicted Thompson of first-degree murder. During the sentencing phase, Marie LaGarde testified about Thompson’s attempt to rob her family and her brother’s actions in fighting him off. Dubelier emphasized this testimony in his closing argument, asserting that there easily could have been three more murders and that a death sentence was necessary to punish Thompson because he was already set to spend forty-nine and one-half years in prison for the attempted armed robbery. The jury sentenced Thompson to death.
In the fourteen years following the murder conviction, Thompson exhausted all avenues of appeal. His execution was set for May 20, 1999, and his attorneys informed him that he had exhausted all of his options. Then, in late April 1999, one of Thompson’s defense attorney’s investigators happened across a microfiche copy of the crime lab report containing the blood type of the armed robbery perpetrator. Thompson was tested and found to be blood type ‘O’, making it impossible for him to have been the armed robber. Thompson’s attorneys presented this information to the DA’s Office, which then moved for a stay of execution. In the ensuing investigation, it was discovered that, in 1994, Assistant District Attorney Gerry Deegan had intentionally withheld the blood evidence. Deegan revealed his wrongdoing after being told that he had only months to live. Specifically, Deegan telephoned an old friend, a former prosecutor named Michael G. Riehlmann, and said that he would like to meet Riehlmann for drinks at a New Orleans bar. When they met, Deegan revealed to Riehlmann that he, Deegan, was dying of colon cancer. Deegan told his old colleague that, years earlier, he had knowingly suppressed exculpatory blood evidence in the Thompson armed robbery case. Riehlmann expressed shock and counseled Deegan to “do the right thing.” Deegan, however, died a few months later without ever disclosing his suppression of the
material. Riehlmann did nothing, notwithstanding his obligation to report Deegan’s misconduct pursuant to Rule 8.3, commonly known as the
rule. Five years later, after Thompson’s lawyers uncovered the suppressed crime lab report, Riehlmann came forward with an affidavit about his conversation with Deegan and testified at Thompson’s hearing on a motion for new trial. Later, the Louisiana Office of Disciplinary Counsel investigated Riehlmann for not complying with the mandatory reporting requirements. Riehlmann recited a litany of personal problems in order to explain his failure to report. The Disciplinary Board rejected them, concluding that Riehlmann had an obligation to report Deegan’s admitted wrongdoing because, “a lawyer’s duty to report [the misconduct of another lawyer] is triggered when, under the circumstances, a reasonable lawyer would have ‘a firm opinion that the conduct in question more likely than not occurred.’” In other words, “‘more than a mere suspicion, but less than absolute or moral certainty.’” The Louisiana Supreme Court agreed, ruling that a lawyer must fulfill the reporting obligation promptly and to the appropriate authority. Riehlmann’s tardy assistance in Thompson’s motion for new trial did not qualify as reporting to “a tribunal or other authority empowered to investigate or act upon such violation” as required under Rule 8.3 because only the Supreme Court is empowered to act in such cases and only the Office of Disciplinary Counsel investigates lawyer misconduct for the Court. Riehlmann received a reprimand in this case of first impression in Louisiana.
In re Michael G. Riehlmann
, 891 So.2d 1239 (Louisiana January 19, 2005).
See NOBC Current Developments (Chicago 2005).
Following the stay of execution, Connick’s office moved to vacate the armed robbery conviction and chose not to retry Thompson for that crime. Connick also convened a grand jury to investigate the concealment of the blood evidence, but eventually dismissed the grand jury. John Glas, the Assistant District Attorney who was prosecuting the concealment charges, resigned in protest of the dismissal and testified in the instant case that the evidence supported the charges.
Thompson filed for post-conviction relief on the murder conviction and, in 2001, the district court changed his death sentence to life-in-prison because the attempted armed robbery conviction had been used as evidence against him during the sentencing phase. The Louisiana Fourth Circuit Court of Appeals reversed Thompson’s murder conviction in 2002, finding that the attempted armed robbery conviction unconstitutionally deprived him of his right to testify in his own defense at his murder trial.
State v. Thompson, 825 So. 2d 552, 557 (La. Ct. App. 2002). The DA’s Office retried Thompson for the Liuzza murder. This time around, Eddie Jordan was the Orleans Parish District Attorney. Free of the attempted armed robbery conviction, Thompson testified in his own defense. Thompson was able to use thirteen pieces of evidence that the prosecutors did not turn over during the first murder trial. This evidence included police and incident reports, photographs, statements, and information regarding a monetary award given to one of the witnesses at the first murder trial. Eyewitnesses, who the police had not previously disclosed to Thompson, testified about the Liuzza murder. Kevin Freeman, the prosecution’s key witness in the first murder trial, had been killed during the interval between the first and second trial. However, the state court permitted the DA’s Office to read relevant portions of Freeman’s trial testimony, and Thompson’s lawyers were permitted to state the questions they would have propounded on cross-examination. The jury returned a verdict of not guilty in thirty-five minutes. Thompson was released from prison, eighteen years after his arrest. He had served fourteen years on death row.
Following his release, Thompson filed a federal suit against the Orleans Parish District Attorney’s Office, Connick, Williams, Dubelier, and the then-new District Attorney, Eddie Jordan, in their official capacities; and Connick in his individual capacity. Thompson brought state law claims for malicious prosecution and intentional or reckless infliction of emotional distress, as well as a claim under 42 U.S.C. §1983 for wrongful suppression of exculpatory evidence and a conspiracy claim under 42 U.S.C. §1985(3). Essentially, Thompson alleged that Connick had failed to train adequately his prosecutors about their duty to produce exculpatory evidence and that the lack of training had caused the nondisclosure in Thompson’s robbery case. The district court granted summary judgment for defendants on the state law claims on the basis of absolute prosecutorial immunity but permitted the federal claims to go forward. Before trial, Connick conceded that the failure to produce the crime lab report constituted a
violation. Accordingly, the District Court instructed the jury that the “only issue” was whether the nondisclosure was caused by either a policy, practice, or custom of the district attorney’s office or a deliberately indifferent failure to train the office’s prosecutors. Although no prosecutor remembered any specific training session regarding
prior to 1985, it was undisputed at trial that the prosecutors were familiar with the general
requirement that the State disclose to the defense evidence in its possession that is favorable to the accused. Prosecutors testified that office policy was to turn crime lab reports and other scientific evidence over to the defense. They also testified that, after the discovery of the undisclosed crime lab report in 1999, prosecutors disagreed about whether it had to be disclosed under
absent knowledge of Thompson’s blood type. The jury rejected Thompson’s claim that an unconstitutional office policy caused the
violation, but found the district attorney’s office liable for failing to train the prosecutors. The jury awarded Thompson $14 million in damages, and the District Court added more than $1million in attorney’s fees and costs. The Court of Appeals for the Fifth Circuit affirmed the jury verdict by an evenly divided en banc court.
After the appellate court affirmed the $15 million judgment, yet another new Orleans Parish District Attorney, Leon Cannizzaro, announced to the press that his office might have to declare bankruptcy. “My office is without funds to satisfy this judgment,” Cannizzaro wrote to state Treasurer John Kennedy, “A Chapter 9 filing is the only option available to ensure the uninterrupted operation of the district attorney's office.” According to the
, Cannizzaro’s cash-strapped office was still paying off a 2005 federal civil rights judgment against former District Attorney Eddie Jordan, who resigned as city leaders scrambled to pay off a $3.7 million jury award to the white employees he fired and replaced with black applicants. Before leaving office in October 2007, Jordan asked then-Governor Kathleen Blanco for permission to declare bankruptcy as one way to stave off the award payment. But Blanco refused and, after Jordan quit, New Orleans business leaders worked to figure out a payment plan for a whittled-down $3.3 million award, complete with loans from the state and city. About $700,000 was paid out of money the district attorney's office had set aside in previous years.
The United States Supreme Court granted certiorari in order to decide whether a district attorney could be held liable under §1983 for failing to train his or her staff based on a single
violation. On March 29, 2011, the United States Supreme Court, in a 5-4 decision, reversed the District Court judgment and held that a chief prosecutor could not be held liable under §1983 for failing to train his or her staff based on a single
violation. The Court majority, including Justice Thomas, who authored the majority opinion, along with Justices Roberts, Scalia, Kennedy, and Alito, acknowledged that, in a narrow range of circumstances, a municipality may be civilly liable for a lack of training, such as a city that arms a police force with firearms and deploys the armed officers into the public to capture fleeing felons without training the officers in the constitutional limitation on the use of deadly force. Prosecutors are not, however, police officers. According to the majority, attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority of jurisdictions must do both. Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing education requirements. Attorneys who practice with other attorneys, such as in district attorney’s office, also train on the job as they learn from more experienced attorneys. For instance, in the Orleans Parish District Attorney’s Office, junior prosecutors were trained by senior prosecutors who supervised them as they worked together to prepare cases for trial, and trial chiefs oversaw the preparation of the cases. In addition, attorneys in all jurisdictions must satisfy character and fitness standards to receive a law license and are personally subject to an ethical regime designed to reinforce the profession’s standards. In Orleans Parish, Senior attorneys also circulated court decisions and instructional memoranda to keep the prosecutors abreast of relevant legal developments.
In light of this regime of legal training and professional responsibility, recurring constitutional violations are not the “obvious consequence” of failing to provide prosecutors with formal in-house training about how to obey the law. Prosecutors are not only equipped, but are also ethically bound, to know what
entails and to perform legal research when they are uncertain. A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations in “the usual and recurring situations with which [the prosecutors] must deal. The majority rejected Thompson’s claim that the absence of formal training sessions about
was the equivalent of a complete absence of legal training. The majority ruled that it does not follow that, because
has gray areas and some
decisions are difficult, prosecutors will so obviously make wrong decisions that failing to train them amounts to a decision by the governmental entity itself to violate the Constitution. To prove deliberate indifference, Thompson needed to show that Connick was on notice that, absent additional specified training, it was “highly predictable” that the prosecutors in his office would be confounded by those gray areas and make incorrect
decisions as a result. In fact, Thompson had to show that it was, “so predictable that failing to train the prosecutors amounted to conscious disregard for defendants’
rights.” According to the majority, this he did not do. Justice Ginsburg submitted a dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan. The dissenters believed that, based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to
was standard operating procedure at the District Attorney’s Office. They noted that, “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.”
The case is
Harry F. Connick, District Attorney, et al., v. John Thompson,
No. 09–571 (United States Supreme Court March 29, 2011).
JAMES J. GROGAN, DACC, Illinois ARDC
As an aside, according to the Innocence Project, 36 men convicted in Orleans Parish during Harry F. Connick's 30-year tenure as District Attorney made allegations of prosecutorial misconduct; 19 of them had their sentences overturned or reduced as a result of the allegations.
. The former District Attorney is a singer who routinely performs at Tipitina’s. His son is the singer, composer, musician and actor, Harry F. Connick, Jr. Junior’s mother was also a lawyer, and she eventually served as a justice on the Louisiana Supreme Court. Notwithstanding their grounding in the law, the Connicks owned a record store in New Orleans for many years.