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<H1 property="dc.title">Supreme Court to take another look at prosecutorial
misconduct</H1>
<H3 property="dc.creator">By <A
title="http://www.washingtonpost.com/robert-barnes/2011/05/20/AFZRhx7G_page.html
CTRL + Click to follow link"
href="http://www.washingtonpost.com/robert-barnes/2011/05/20/AFZRhx7G_page.html"
rel=author>Robert Barnes</A>, <SPAN class="timestamp updated processed"
epochtime="1320011760000" datetitle="published" pagetype="leaf"
contenttype="article">Published: October 30</SPAN> </H3>
<P>Prosecutors, says Angela Davis, former head of the D.C. public defenders
office, “are the most powerful officials in our criminal justice system.”</P>
<P>Davis, a professor at American University’s Washington College of Law,
explains:</P>
<P>“They decide whether a person’s going to be charged, what to charge them
with, whether there’s going to be a plea bargain and what the plea bargain will
be. As they make those decisions, they exercise almost boundless
discretion.”</P>
<P>That combination of power and discretion, she said, “can and has led to
abuse.”</P>
<P>It’s an issue of perpetual interest at the Supreme Court. Next week, the
court will hear a case in which a Louisiana death row inmate alleges that
prosecutors withheld information that would have cast doubt on the eyewitness
account that led to his conviction.</P>
<P>The case from New Orleans concerns prosecutors who worked for former district
attorney Harry Connick Sr., who left office in 2003.</P>
<P>If that sounds familiar, it is because Connick and his office were at the
center of last term’s<A
href="http://www.washingtonpost.com/politics/supreme-court-rules-against-exonerated-death-row-inmate-who-sued-prosecutors/2011/03/29/AF8tZPwB_story.html">
big decision about prosecutorial misconduct</A>. In that controversial 5-to-4
decision, the court stripped a $14 million award from John Thompson, who spent
14 years on death row after prosecutors withheld evidence that showed his
innocence.</P>
<P>The court has long agreed that individual prosecutors should be protected
from civil liability so that they may freely pursue criminals. However, Thompson
had convinced a jury that Connick’s office should be held accountable for not
properly training staff about the duty prosecutors have to turn over evidence
favorable to the defense.</P>
<P>But Justice Clarence Thomas, joined by the court’s other conservatives, <A
href="http://www.supremecourt.gov/opinions/10pdf/09-571.pdf">said Thompson did
not meet the high standard</A> of showing a pattern of “deliberate indifference”
on Connick’s part.</P>
<P>Justice Ruth Bader Ginsburg, on behalf of the court’s liberals, read her
dissent from the bench, saying she would have upheld the award against Connick’s
office for the “gross, deliberately indifferent and long-continuing violation of
(Thompson’s) fair trial right.”</P>
<P>Barry Scheck, co-director of the <A
href="http://www.innocenceproject.org/">Innocence Project</A>, said the court’s
decision in <I>Connick v. Thompson </I>made it clear that civil remedies are not
a viable option for those trying to stop prosecutorial misconduct.</P>
<P>He, Thompson and others were part of a group of “innocence advocates” who
last week <A href="http://www.prosecutorialoversight.org/">proposed a national
dialogue</A> with prosecutors to try to find other ways to investigate and
sanction prosecutors who break the rules.</P>
<P>Santa Clara University law professor Kathleen Ridolfi said the group needs to
find a way around “a system where the Supreme Court refuses to hold prosecutors
accountable, even for repeated, deliberate misconduct.”</P>
<P>The new case, <A
href="http://www.scotusblog.com/case-files/cases/smith-v-louisiana/"><I>Smith v.
Cain</I> </A>, is not about punishing prosecutors. It is about whether
withholding evidence should mean a new trial for Juan Smith, who prosecutors
said was involved in a gangland-style shooting that left five dead. Prosecutors
have an obligation under a nearly 50-year-old Supreme Court precedent in
<I>Brady v. Maryland </I>to turn over any evidence material to a defendant’s
guilt or punishment.</P>
<P>The case is expected to be determined by its specific facts rather than the
potential for a new examination of Brady. It also seems not coincidental that it
involves New Orleans prosecutors.</P>
<P>Smith’s lawyers point out that courts have overturned four death sentences
from Orleans Parish because of violations of the Brady rules, and they say eight
other non-capital cases have met the same fate.</P>
<P>The American Bar Association <A
href="http://www.americanbar.org/content/dam/aba/migrated/2011_build/amicus/smith_brief.authcheckdam.pdf">has
asked the court</A> to use the case to tell prosecutors that they have a greater
obligation than simply meeting Brady requirements. The ABA says the court should
mandate that prosecutors abide by ABA model rules that call for disclosure of
any exculpatory evidence, whether it is determined to be material or not.</P>
<P>The National District Attorneys Association <A
href="http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-8145-respondent-amcu-orleansparish.authcheckdam.pdf">replied
that the ABA</A> is nothing but a private association of lawyers that
consistently takes the side of criminal defendants. The regulation of
prosecutors, it says, “is appropriately left to the individual states.”</P>
<P>Such sensitivity is why Scheck and others at a news conference last week took
pains to say they believe only a small slice of prosecutors have committed
misconduct. He said he was generally advised, “ ‘Don’t go around the country
pillorying prosecutors and giving the impression that what happened in John
Thompson’s case is happening across the board in an epidemic.’ ”</P>
<P>He added: “ We’re not saying that.”</P></DIV></FONT></DIV>
<DIV><FONT size=2 face=Verdana></FONT> </DIV>
<DIV><FONT size=2 face=Verdana>__________________________________</FONT></DIV>
<DIV><FONT size=2 face=Verdana>Wayne A. Fox<BR><A
href="mailto:wayne.a.fox@gmail.com">wayne.a.fox@gmail.com</A><BR></FONT></DIV></BODY></HTML>