Prosecutorial Misconduct: Who is liable?

Every once in awhile, a criminal procedure case comes along that is so egregious that it seems almost hard to believe.  The case of John Thompson is an example.  Mr. Thompson, a black man who lived in Louisiana at time of his arrest, was wrongfully incarcerated for 14 years at Angola Prison Death Row.  The story of his arrest, his post-conviction proceedings, and the investigation which led to his release are chronicled in  Killing Time, a riveting book by Bay Area lawyer John Hollway.

While the criminal case is an extremely compelling tale of racism, shoddy police work, and prosecutorial misconduct, of equal importance is Mr.  Thompson’s civil suit against Harry Connick Sr., the District Attorney at the time of Thompson’s trial.  In October, the Supreme Court heard argument on the state’s contention that a prosecutor’s office is immune from liability even where it fails to properly train its attorneys to comply with constitutional rules of criminal procedure — here, the requirement from Brady that prosecutors must disclose exculpatory evidence.  In Mr. Thompson’s case, the lack of such training resulted in four of the district attorneys failing to disclose blood evidence that, when discovered eighteen years later, proved Mr. Thompson’s innocence.  None of the four prosecutors ever came forward to correct their violation, even when Mr. Thompson was a week from his execution.  As Justice Ginsburg put it at oral argument, ”It wasn’t just one rogue prosecutor, there are multiple incidents here.”

In the wake of recent prosecutorial misconduct reports,  such as one by the Northern California Innocence Project, this issue is more timely then ever.  That report indicated that 707 incidents of prosecutorial misconduct had been discovered in CA between 1997 and 2009, and that only 6 of the 600 prosecutors involved had been disciplined by the state.  If DA’s offices are not properly training their prosecutors to abide by the procedural safeguards afforded defendants in the Constitution, and the state bars are not disciplining prosecutors for their ethical indiscretions, then how can society ensure that prosecutors refrain from abusing their power?  Hopefully, the court will address this issue and recognize that absolute immunity for prosecutors only applies where they are following the law.