The Lone Miscreant, the Self-Training Prosecutor, and Other Fictions: A Comment on Connick v. Thompson
Susan A. Bandes
DePaul University - College of Law
May 16, 2011
Fordham Law Review, Vol. 80, 2012
University of Miami Legal Studies Research Paper No. 2011-18
In Connick v. Thompson, the Supreme Court in a 5-4 decision blocked one of the last remaining paths to prosecutorial accountability for the violation of constitutionally mandated discovery obligations under Brady v. Maryland. The upshot of Connick is that unless non-compliance is frequent and notorious enough to reach the level of custom, prosecutors’ offices are insulated from Section 1983 liability - entity as well as individual - for failing to comply with Brady. The immediate effect of Connick is to leave John Thompson without a remedy for spending 18 years in prison, narrowly escaping execution for a crime he didn’t commit, while members of the New Orleans Parish District Attorney’s office concealed the evidence that would ultimately exculpate him.
Dahlia Lithwick called Connick v. Thompson "one of the meanest Supreme Court decisions ever." The opinion is "mean" not only in the sense in which she uses the word - coldhearted and without acknowledgement of the human costs of the wrongoing - but in its grudging interpretation of the constitutional violation at issue, its reductionist notions of what a training regime can accomplish, and its stark indifference to the deterrent, compensatory and declaratory aims of Section 1983. Connick reveals the relentlessly atomistic lens through which a majority of the current Court views governmental obligations - both those of the prosecutor and those of the Court itself.
This article will first challenge the central assumption on which Justice Thomas relied in vacating the opinion below: that Thompson’s harm can be traced to only a single incident of governmental misconduct by a lone miscreant. It argues that the violation was a group effort, as well as a reflection of a longstanding office culture of disregard for Brady. Second, it will critique the Court’s conception of training, arguing that the nature of prosecutorial culture in particular and organizational culture more generally makes training essential. And finally, it will argue that the Court’s atomistic vision of Section 1983 and of its own role in remedying constitutional wrongs is at odds with the aims of the statute it sets out to construe.
Number of Pages in PDF File: 31
Keywords: criminal procedure, prosecutorial misconduct, discovery, municipal liability, federal jurisdiction, Sec. 1983, cognitive biasAccepted Paper Series
Date posted: May 16, 2011 ; Last revised: May 23, 2011
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