Instant Analysis- Connick v. Thompson: One violation of Brady does not a pattern make

March 29th, 2011

In Connick v. Thompson, Justice Thomas writing for 5 members, found that a single violation of Brady v. Maryland but a prosecutor is not sufficient to establish a pattern of failure to train that results in 1983 liability.

I will post more analysis as I read through the opinion.

Majority Opinion

Here is the most important section from the syllabus explaining the core of the holding:

Thompson mistakenly relies on the “single-incident” liabilityhypothesized in Canton, contending that the Brady violation in his case was the “obvious” consequence of failing to provide specific Brady training and that this “obviousness” showing can substitutefor the pattern of violations ordinarily necessary to establish munici-pal culpability. In Canton, the Court theorized that if a city armed its police force and deployed them into the public to capture fleeing felons without training the officers in the constitutional limitation onthe use of deadly force, the failure to train could reflect the city’s de-liberate indifference to the highly predictable consequence, namely, violations of constitutional rights. Failure to train prosecutors intheir Brady obligations does not fall within the narrow range of Can-ton’s hypothesized single-incident liability. The obvious need for spe-cific legal training present in Canton’s scenario—police academy ap-plicants are unlikely to be familiar with constitutional constraints on deadly force and, absent training, cannot obtain that knowledge—isabsent here. Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitu-tional limits, and exercise legal judgment. They receive training be-fore entering the profession, must usually satisfy continuing educa-tion requirements, often train on the job with more experiencedattorneys, and must satisfy licensing standards and ongoing ethicalobligations. Prosecutors not only are equipped but are ethicallybound to know what Brady entails and to perform legal research when they are uncertain. Thus, recurring constitutional violationsare not the “obvious consequence” of failing to provide prosecutorswith formal in-house training. The nuance of the allegedly necessarytraining also distinguishes the case from the example in Canton. Here, the prosecutors were familiar with the general Brady rule. Thus, Thompson cannot rely on the lack of an ability to cope with constitutional situations that underlies the Canton hypothetical, but must assert that prosecutors were not trained about particular Bradyevidence or the specific scenario related to the violation in his case. That sort of nuance simply cannot support an inference of deliberateindifference here. Contrary to the holding below, it does not follow that, because Brady has gray areas and some Brady decisions are dif-ficult, prosecutors will so obviously make wrong decisions that failingto train them amounts, as it must, to “a decision by the city itself to violate the Constitution.” Canton, 489 U. S., at 395 (O’Connor, J., concurring in part and dissenting in part). Pp. 11–19.

Justice Scalia’s Concurring Opinion

Justice Scalia, joined by Justice Alito, concurred to reply to a number of Justice Ginsburg’s arguments.

Scalia concedes that Prosecutors will mess up, and merely showing Brady violations is not equivalent to showing a deliberate indifference to train, as a failure to train liability is only available in “limited circumstances.”

Thompson’s failure-to-train theory at trial was not based on apervasive culture of indifference to Brady, but rather on the inevitability of mistakes over enough iterations of criminal trials. . . . That theory of deliberate indifference would repeal the law of Monell1 in favor of the Law of Large Numbers. Brady mistakes are inevitable. So are all species of error routinely confronted by prosecutors: authorizing a bad warrant; losing a Batson2 claim; crossing the line in closing argument; or eliciting hearsay that violates the Confrontation Clause. Nevertheless, we do not have “de facto respondeat superior liability,” Canton, 489 U. S., at 392, for each such violation under the rubric of failure-to-train simply because the municipality does not have a professional educational program covering the specific violationin sufficient depth.3

Here is the heart of Scalia’s reasoning—he does not want courts second-guessing the policies of municipal employees:

Worse, it would “engage the federal courts in an endless exercise of secondguessing municipal employee-training programs,” thereby diminishing the autonomy of state and local governments.

Justice Ginsburg’s Dissenting Opinion

Justice Ginsburg wrote a lengthy 32-page dissent, which she read from the bench. This is a tact she has employed in the past, such as in Ledbetter, to stress her vigorous disagreement with a case. Ginsburg relies on the lengthy trial record to show that this Brady violation was not aberrant.

As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. . . . What happened here, the Court’s opinion obscures, wasno 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 Officebears responsibility under §1983.

Ginsburg notes the only way to root out this problem, which is often hard to detect, is through the imposition of § 1983 liability:

The prosecutorial concealment Thompsonencountered, 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.

In a curious section, Justice Ginsburg comments on the state of legal education, both in law schools, CLE, and through internal training:

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 experienceto 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. . . . 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. . . . But Connick acknowledged that he had “stopped reading law books . . . and looking at opinions” when he was first elected District Attorney in 1974. . . . 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, residedin the District Attorney’s Office. . . . The 1987 Office policy manual was a compilation of memoranda on criminal law and practice circulated toprosecutors from 1974, when Connick became District Attorney, through 1987. Id., at 798. The manual contained four sentences, nothing more, on Brady.15

And here is the kicker, and a serious benchslap to Tulane University:

On what basis can one be confident that law schools acquaint students withprosecutors’ 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.21
21See Tulane University Law School, Curriculum, (select “Academics”; select “Curriculum”) (as visited Mar.21, 2011, and in Clerk of Court’s case file).

And what about the bar Exam?

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 even10% of the total points in the criminal law and procedure section of any administration of the Louisiana Bar Examination.22 A person sitting for the Louisiana Bar Examination, moreover, need pass only five of the exam’s nine sections.23 One can qualify for admission to the professionwith no showing of even passing knowledge of criminal law and procedure.

And what about lawyer’s ability to learn about the law?

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 theappropriate way to resolve Brady issues is not always selfevident.”

In conclusion, Ginsburg finds that this Brady violation as not an outlier, but part of a pattern:

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 theattitude toward Brady pervasive in the District Attorney’s Office. Thompson demonstrated that no fewer than fiveprosecutors—the four trial prosecutors and Riehlmann—disregarded his Brady rights. He established that theykept 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.