How Many Brady Violations Does It Take to Make a Pattern?

Last March the U.S. Supreme Court overturned an $14 million award to John Thompson, a Louisiana man who spent 18 years in prison, 14 of them on death row, because prosecutors in the Orleans Parish District Attorney's Office deliberately withheld crucial exculpatory blood evidence. Since the prosecutors themselves enjoyed "absolute immunity" for their egregious misconduct, Thompson argued that their office should be held liable for failing to properly train them in their constitutional obligations. A federal jury agreed, and so did the U.S. Court of Appeals for the 5th Circuit. But the Supreme Court reversed that ruling, saying Thompson had not demonstrated a pattern of disregard for constitutional rights under District Attorney Harry Connick that was tantamount to official policy. Today the Court saw more evidence of that pattern as it considered a case in which Connick's office failed to disclose a key witness's conflicting statements to Juan Smith, the defendant in a multiple murder trial. Justice Antonin Scalia, who voted with the majority in Connick v. Thompson, lost patience with Assistant District Attorney Donna Andrieu, who persisted in arguing that the prosecution was not obligated to share the statements under Brady v. Maryland, the 1963 decision that established a defendant's due process right to see such evidence. "Surely it should have been turned over," Scalia said. "Why don't you give that up?"

As New York Times reporters Campbell Robertson and Adam Liptak noted last week, the Brady violations in both cases seem to reflect Connick's "win-at-all-cost approach":

The Orleans Public Defenders office, in a brief supporting Mr. Smith [who is seeking a new trial], said that 28 convictions obtained by the district attorney's office were later ruled to have been tainted by violations of this kind.

The district attorney's office disagrees, saying the correct number is 13. In its own Supreme Court brief, it called such lapses lamentable….

Four defendants who were sentenced to death in Orleans Parish were later exonerated in cases involving violations of the Brady decision; another, who was facing a death sentence, was granted a new trial last year.

More broadly, according to a survey of both capital and non-capital cases by the Innocence Network, 10 prisoners have been exonerated since 1990 in Orleans Parish in such cases.

Two of the capital cases reached the Supreme Court. In the first, in 1995, the justices admonished District Attorney Harry F. Connick, who ran the office from 1974 to 2003, and told him to be more careful. In a concurrence, Justice John Paul Stevens called the office's violations "blatant and repeated."

Still, Mr. Connick testified in 2007 that he had seen no need to change the office's policies after the 1995 warning…. 

In a 2004 affidavit in another Brady-related wrongful conviction case, Bill Campbell, who had worked in the prosecutor's office during Mr. Connick's tenure, put it simply: "The policy was 'When in doubt, don't give it up.'"

Even Mr. Connick's successor, Eddie Jordan, came close to acknowledging as much in a 2003 interview with The Times-Picayune. "The previous administration," he said, "had a policy of keeping away as much information as possible from the defense attorney."

Dissenting last March in Connick v. Thompson, Ruth Bader Ginsburg and three other justices likewise concluded:

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 Attorney 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…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…established persistent, deliberately indifferent conduct for which the District Attorney's Office bears responsibility.

It is hard to see how the district attorney's office can deny this pattern of Brady negligence when its representatives, including Andrieu and Connick himself, have continued to profess uncertainty about the decision's requirements long after the constitutional violations were revealed.