Supreme Court

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.

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  1. “The Orleans Public Defenders office, in a brief supporting Mr. Smith, 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.”

    Fucking assholes.

    1. Me neither.

      “When we get piled upon one another in large cities, as in Europe, we shall become as corrupt as Europe.” ~Thomas Jefferson

      Fucking city-State (civilization) slickers.

      City slickers appeared often as deceitful characters in U.S. comic strips and movies before the middle of the 20th century, but usually to be “outsmarted” by the native wisdom and common sense of the locals or to somehow otherwise get their just deserts in the end.

      1. Does the city state bring more corruption or more progress to mankind?

        1. Corruption
        2. Progress

        Take the poll, and don’t be bashful!

        1. Maybe the city state only allows the corrupt nature of humans to be more obvious?

          As for progress, what is progress? Technological advancements? Seriously what is “progress” taking us toward if people can’t claim to know the end from the beginning? Some people may consider the same thing progress and others regress.

      2. Mmmm. City-folk who are slick and like to fuck. My butt is twitching again.

  2. Jesus Christ Sullum, what are you, soft on crime?!

    1. Indeed. Looks like neither The Fraternal Order of Police nor the Benevolent Association of Law Enforcement Officers will be endorsing the Sullum 2012 ticket.

      1. i’m not aware that the FOP is particularly enamored of crooked prosecutors, but maybe i’m wrong.

        this guy sounds like one

        1. Of course they are; that’s how the crooked cops avoid getting prosecuted for perjury, etc.

          1. Ah right, yawn…

    2. Jesus Christ Sullum, what are you, soft on crime the wrongfully convicted?!

  3. Ah, to be a government employee in Louisiana. You’re set for life. What does Connick have to do to actually get in trouble, I wonder? Actually execute innocent defendants himself?

    I assume the decision from today’s case isn’t out yet? I wonder when SCOTUS will finally tire of hearing the bells on the caps of these Orleans fools, and affirm the appeal court’s decisions.

    1. Actually execute innocent defendants himself?

      Nah, he’d just whip out the “he needed killin” defense.

  4. It is really sad. You will not often lose by betting that these SCOTUS fucks will be both on the wrong side of morality and the law.

    1. often to be on the right side of the law, you HAVE to be on the wrong side of morality and vice versa.

      that’s a fact, a sad fact, but a fact. i want judges who rule on the law

      i also want prosecutors who aren’t crooked evidence concealing fuckheads

      1. I think that was Troy’s point. In this case the SCOTUS was on the wrong side of both morality and the law.

  5. I wonder if “Connick” is related to Harry Connick, who, if I remember correctly, Is from NOLA.

    1. Try wikipedia. Don’t just wonder about these things. Show some initiative and google it. The internet.

      1. The answer is, yes he is the Senior to Harry Connick Jr.

      2. Somewhat takes the fun out of it. Some people actually like having psuedo-conversations, and running to google or wiki everything becomes dry and stale.

      3. What would we do without snark?

  6. I know how you all hate the death penalty, but I would be very enthusiastically in favor of capital punishment for prosecutors, police, or forensic experts who are convicted of having intentionally trumped up charges or misrepresented/fabricated evidence against persons accused of felonies.

    For instance, the prosecutor in the Duke rape case should have been escorted off the planet.

    1. I wouldn’t go as far as the death penalty. However, in cases of wrongful conviction, whether based on unknown (failure to do due diligence) or withheld (prosecutorial misconduct), every party involved in the prosecution, from the police, to the lab techs, to the paralegals to the prosecutor, would all serve the sentence the prisoner had received.

    2. “but I would be very enthusiastically in favor of capital punishment for prosecutors, police, or forensic experts who are convicted of having intentionally trumped up charges or misrepresented/fabricated evidence against persons accused of felonies.”

      I say they get exactly the penalty they used to destroy another person’s life.

  7. Why would Scalia be surprised that they continue doing this when he continues to deny any remedy?

  8. We also have a lovely DA in the seventh district who cut his teeth in Jefferson parish ( next door to Orleans) who behaves in the same fashion. Lo and behold, he had a 100% conviction rate as an ADA.
    Personally when I see prosecutors with inordinately high conviction rates I immediately think they are cheating, lying scum.

    1. i agree. if you have a 100% conviction rate, chances are – you are doing something wrong.

      because you are either ONLY choosing to prosecute cases that are a complete slam dunk – iow, you should be trying “harder cases” too, where there is at least SOME question


      you are almost certainly crooked

      this is given sufficient ‘n’ iow, let’s say 100 cases.

  9. fwiw, in my locale, prosecutors keep a brady list. this is how it works. if an officer is ever found to have knowingly withheld or lied about evidence, etc. he goes on that list. and become persona non grata. his career is over. he will not be called as a prosecution witness.

    1. In most of Louisiana I am sure they keep Brady lists also, but getting on them has the opposite effect on a career.

    2. More of them need to be kept off the stand. Ignoring due process (even in small ways) is too wide spread.

      1. a cop who ignored due process would not be so much a brady issue. it’s the dishonesty thing.

        lemme give you an example. i had a case where i simply had a brain fart and searched somebody where it wasn’t justified. (it would have been justified in many states, but not in WA).

        anyway, i realized my error, but by then i had already found the bindle of cocaine.

        what did i do?

        simple, I wrote what we refer to as a “narcotics for disposal” case.

        i wrote a simple narrative , explained that the case did not meet filing standards and was for documentation only.

        and that was it.

        that’s what we are SUPPOSED to do in those circ’s.

        the problem is when cops try to make a “bad case good” by lying, twisting the truth, or whatever because they know they fucked up

        that is simply not acceptable.

        it is expected that we will make errors. but knowingly lying to try to cover them up is what is inexcusable

      2. depends wjhat you mean. brady files for cops refer to dishonesty. ignoring due process can be a result of conscious decisions to thwart legal process OR simply people who fuck stuff up sometimes

        the latter is not a brady issue

        brady is not about competence, it’s about willful misconduct

        1. Brady is not the ONLY reason certain cops should be kept off the stand. A lot of them seem to get used to fuck ups that get ignored.

  10. Connick is a piece of shit. A dangerous sociopath. As much a criminal as anyone he ever convicted.

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  12. I just checked the Maddox site because I felt like it and he has something up about cops. I think some of you might be interested in it.

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  15. What, they stopped 13 people from being killed? Fucking killjoys. Killing innocent people is great fun.

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