Prosecutors’ Civil Liability for Brady Violations

The United States Supreme Court decided Connick v. Thompson yesterday. In a nutshell, the plaintiff, John Thompson, spent 18 years in prison as a result of a Brady violation. After he was exonerated, he sued the district attorney’s office, claiming that the office failed to train prosecutors adequately about their Brady obligations. A jury agreed and awarded him $14 million. The Supreme Court reversed, holding that district attorneys don’t have an obligation to train their employees about Brady unless they are aware of a pattern of Brady violations. The case is interesting in its own right, and it may have some bearing on the discovery reforms currently under consideration at the General Assembly.

From the Court’s syllabus, here are the facts:

[T]he Orleans Parish District Attorney’s Office concedes that, in prosecuting . . . Thompson for attempted armed robbery, prosecutors violated Brady . . . by failing to disclose a crime lab report. [The perpetrator left blood on one of the victims’ pants. The report stated that the blood was type B. Thompson is a different blood type, though the trial prosecutor may not have known that, at least initially.] Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney’s office under 42 U.S.C. § 1983, alleging, inter alia, that the Brady violation was caused by the office’s deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney’s office liable for failure to train and awarded Thompson damages.

The evidence at trial appears to have included the following.

  • The office did no formal training regarding Brady.
  • Prosecutors in the office were nonetheless generally aware of Brady.
  • Office policy was to turn crime lab reports over to the defense.
  • Prosecutors in the office disagreed after the fact about whether the crime lab report in this case was Brady material absent knowledge of Thompson’s blood type.

The jury determined that the office had no official policy endorsing Brady violations, but that the district attorney was liable for failing to train prosecutors about Brady. The district court upheld the verdict over the district attorney’s objection that “he could not have been deliberately indifferent to an obvious need for . . . Brady training because there was no evidence that he was aware of a pattern of similar Brady violations.” The trial court ruled that the need for training was so obvious that Thompson wasn’t required to show a pattern of violations. The Fifth Circuit, en banc, affirmed en by an evenly divided court. The judges split over the crucial question of whether a pattern of violations must be shown before training is a constitutional imperative.

The Supreme Court likewise divided on the issue – but not evenly. Justice Thomas wrote the Court’s opinion, joined by the Chief Justice and Justices Scalia, Kennedy, and Alito. Justice Ginsburg dissented from the bench, joined by the remaining three Justices.

Justice Thomas noted that liability under section 1983 occurs only when constitutional rights are violated by the “official policy” of a government entity, and that a failure to train employees can amount to such a policy only when the failure shows a “deliberate indifference” to the rights of the people with whom the employees may come into contact. Ordinarily, a showing of deliberate indifference requires a showing of a pattern of rights violations. Though Thompson pointed to at least four other Brady violations in the ten years preceding his robbery trial, he did not contend that this showed a pattern, and the Court stated that the other violations were not similar to the one in Thompson’s case because they did not involve scientific evidence.

Instead, Thompson contended that the need for training was so obvious that no showing of a pattern of violations was necessary. The Court disagreed, noting that all attorneys are trained, licensed, and subject to continuing education requirements, and that young prosecutors in the office in question were mentored and supervised by more senior lawyers. In short, “[p]rosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain,” so the district attorney had no reason to suspect that Brady violations would be widespread without training. Thus, civil liability was foreclosed.

The majority opinion and the concurrence suggest that Thompson may also have failed to establish causation. That is, they intimate that more training wouldn’t have prevented the Brady violation in this case. (Justices Scalia and Alito actually believe that “[t]here was probably no Brady violation at all” when the prosecutor initially failed to disclose the report, from which it follows that more training about Brady wouldn’t have changed anything.) That’s an interesting issue, but it isn’t at the heart of the opinion so I won’t dig into it.

The dissent argues that the facts of Thompson’s case are so egregious that, in effect, they establish a pattern of misconduct by themselves: “Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure.” It also contends that section 1983 liability is essential to motivate compliance with Brady.

To sum up, the case is good news for district attorneys, who can’t be held liable for failure to train their assistants about Brady absent a pattern of violations.

I mentioned at the outset that there may be a connection to H408, the proposed legislation that would limit prosecutors’ statutory discovery obligations to the contents of their own files, as opposed to the files of “all law enforcement and prosecutorial agencies” involved in the case, as G.S. 15A-903 currently requires. An AP article about the bill is here. Proponents argue that under current law, prosecutors may unfairly be held responsible for discovery violations when officers fail to provide prosecutors with their complete files. So perhaps one could argue that Connick, by setting a high threshold for civil suits against district attorneys, removes some of the motivation for H408. But my sense is that the point of H408 isn’t to limit civil liability – section 1983 claims must be predicated on constitutional violations, after all, and H408 doesn’t change prosecutors’ constitutional obligations – but rather is to limit the exposure of line prosecutors to judicial sanctions and State Bar discipline. And Connick doesn’t bear on these concerns. (None of the foregoing should be read as support for, or opposition to, H408. As with other policy proposals, the School of Government takes no position on H408.)

As always, if you have thoughts about the case or about the connection between the case and the pending legislation, please post a comment.

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