Recently Slate ran a commentary on Connick v. Thompson, declaring, "Clarence Thomas writes one of the meanest Supreme Court decisions ever." They detail at length the penchant of the Scalia-Thomas dyad for being cruel simply because they can be – or more accurately, because they feel justified that their "originalist" interpretation makes them unbiased arbiters of the law. Slate notes that Thomas and Scalia bend over backwards to excuse the actions of the state even though lower courts and the prosecutors themselves have admitted that egregious errors were made. While it is understandable to focus on the human costs of this decision, Slate overlooks a much more important fact: they're wrong.
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In writing this decision they completely ignored 30 years of precedent in favor of "legislating from the bench" and "judicial activism" and all the other buzzwords that, curiously enough, I did not hear any conservative Champions of the Individual Against Encroaching Powers of the State apply to the justices' actions in this case.
First, some background.
The defendant, Robert Thompson:
…was sentenced to death and spent 18 years in prison—14 of them isolated on death row—and watched as seven executions were planned for him. Several weeks before an execution scheduled for May 1999, Thompson's private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. This evidence included the fact that the main informant against him had received a reward from the victim's family, that the eyewitness identification done at the time described someone who looked nothing like him, and that a blood sample taken from the crime scene did not match Thompson's blood type.
Exculpatory evidence is called Brady material in reference to Brady v. Maryland, which holds that the state violates the constitutional rights of a defendant if it does not reveal evidence in its possession that might suggest the defendant's innocence. So if a prosecutor withholds Brady material it is in essence willingly prosecuting someone it knows, or has a valid reason to suspect, is innocent. In Mr. Thompson's case this involved collaboration among at least five prosecutors in New Orleans (despite Thomas' errant claim that the case is about "whether a municipality is liable for a single Brady violation by one of its prosecutors") and very nearly resulted in the application of the death penalty. No big deal, right?
A jury awarded Thompson $14 million in damages (one for each year he spent incarcerated) which was affirmed on appeal. At least it was until the Supreme Court came riding to the rescue of the crooked prosecutors. Scalia lays blame at the feet of a single "miscreant prosecutor" – just a bad apple!
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Where have we heard this argument before? – despite the fact that suppressing this evidence involved collaboration over twenty years and dozens of opportunities for the New Orleans prosecutor's office to introduce the evidence. Amazingly:
One of the reasons the truth came to light after 20 years is that Gerry Deegan, a junior assistant D.A. on the Thompson case, confessed as he lay dying of cancer that he had withheld the crime lab test results and removed a blood sample from the evidence room. The prosecutor to whom Deegan confessed said nothing about this for five years.
What's a deathbed confession among pals?
Here's the kicker. Thompson's suit was named the head of the prosecutor's office, District Attorney Harry Connick Sr. (yes, father of…). Connick did not prosecute the case personally. He was named in the suit because Thompson's attorneys allege that he failed to train his staff – that will be key in a minute – and that his office established a pattern of Brady violations under his command (which Ginsburg details in her dissent). OK? OK.
The Supreme Court established absolute prosecutorial immunity in Imbler v. Pachtman (1976) and Thomas/Scalia rely upon its precedent in their decisions. Unfortunately they overlooked a number of cases that subsequently defined the limits of immunity under Imbler. In Burns v. Reed (1991) the Court noted that Imbler affords absolute immunity for a prosecutor's conduct in "initiating a prosecution and in presenting the State's case" insofar as that conduct is "intimately associated with the judicial phase of the criminal process." The burden rests with the State to prove that any actions for which it claims immunity meet the standard (see Forrester v. White, 1988).
More recently in Mink (2007) 482 F.3d 1244 from the 10th Circuit, U.S. Court of Appeals, the Court ruled that absolute immunity does not extend to "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate (for the State)." In other words, the plain text of Imbler and Burns state that immunity covers actions "intimately associated with the judicial phase of the criminal process" and immunity explicitly does not extend to "administrative" functions such as supervising one's subordinates and training them on proper conduct and legal procedures.
In short, there's nary a word in Imbler, Burns, Mink, or any of the predecessor cases involving prosecutorial immunity about holding a unit of government blameless when its prosecutor runs an office in which people who will represent the state in criminal trials are either encouraged or allowed by neglect and lack of training/supervision to disregard the rights of defendants. Thomas and Scalia just made it up. It's all well and good that the Justices adhere to what they believe is a very literal interpretation of the law; if only they could apply that same rigor to their interpretation of the facts of the cases before them.
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Instead they held the law constant and twisted the facts of until they matched the description of of what is protected by immunity under Imbler and other cases. By reinventing the history of Thompson's ordeal as a single act by a single Bad Apple they were able to give a crooked prosecutor in a crooked city a free pass, in keeping with the long tradition of "originalists" giving aid and comfort to the powerful.
Activist Judging: It's Not So Bad Sometimes!tm
Mike says:
It's almost like they are offended that someone would day break the system. Speaking of course, of the victim, not the perpetrator.
J. Dryden says:
Apologies for broken-recording my last response, but, eh, what the hell, I'll say it again: Florida in 2000. More specifically, Bush v. Gore. Even more specifically, the majority decision, which was, in the words of every legal scholar who wasn't directly on the GOP payroll (and of some who were), completely and utterly whole cloth. Said cloth being pulled directly out of the asses of Messrs. Scalia and Thomas. They flat-out made shit up because they could, and have really been pretty open about doing so, always adding, "So? What're you gonna do about it? Huh? Didn't think so. Punk-ass bitches."
We have already known for some time that the true definition of "strict originalist" is "Social Darwinist, and also, Slavery and Wife Beating were really pretty cool, amirite, guys, so let's just apply a little white-out–heh heh, see what I did there?–to these pesky Amendments, and *there*, the Constitution says just what we want it to mean."
But hell, let's scream all we want–if you ever want to see two men who embody the ideal of Not Giving A Fuck, check out Anton and Clarence. They could give lessons to Dubya, *that*'s how little of a fuck they give. "Lifetime appointments, mutherfuckas!" And away they roll, spinnin' rims and lightin' see-gars with fifties.
HoosierPoli says:
God am I counting down the days until Scalia oozes off this mortal coil.
Jordan says:
lol. way to misread the entire case. while I agree with the underlying premise, that the majority opinion badly mangled the facts (and it should have gone the other way), you butchered what they actually said (which doesn't come to nearly as draconian a set of results as you depict)
Da Moose says:
There is a tiny little spot in Hell waiting for Thomas.
John says:
"I did not hear any conservative Champions of the Individual Against Encroaching Powers of the State apply to the justices' actions in this case."
That's because there's no such thing, Ed. Has never been, and will never be. There are only conservative Champions of the Individual Wealthy Straight White Man To Do Whatever He Pleases Without Penalty.
The long history of that party's love affair with government control over the personal lives of its citizens immediately stuffs any credibility for them to claim that they stand for lessening the power of the state.
JazzBumpa says:
The four cornerstones of conservative the mental process (I hesitate to cal it thinking) are
ignorance
prejudice
magical thinking
negation of reality.
I used to think the latter was false choice, but that is only a specific manifestation.
You see this all the time with conservative economists. If reality is at odds with a beautiful model, then reality is what's wrong. Hence Say's Law, Hauser's Law, the "lump of labor fallacy" canard, etc. ad nausium.
At least three of the four are at play here.
WASF!
JzB
rmenglish says:
Our political process doesn't choose the nine most just individuals to sit on the court. It chooses nine advocates that Senators and Presidents believe can be trusted to argue in support of policies that benefit their constituents. It's better when those advocates can do so with enough skill that their choices can be ascribed to judicial philosophy and integrity, but the conclusion always comes before the argument. That's what lawyers are trained to do. The Court is no different.
evrenseven says:
One professor I had in law school said something I'll never forget: "SCOTUS is not final because it's infallible. It's infallible because it's final."
anotherbozo says:
@ JazzBumpa, more or less: Trying to climb inside the mind of Scalia, among others (and then rush out screaming): I've concluded Liberals and Conservatives, whether in government, law or elsewhere, are no more comparable entities than, say, men and pomegranates. We like symmetry, but these aren't. Liberals of many stripes come to examine things with an attempt at objectivity and openness, and if they are of any consequence as intellectuals or thinkers, have a learned ability to examine facts of various kinds and weigh opinions for validity and honesty. (It's these abilities that are the real fruit of education, consistent with B.F. Skinner, who said "education is what survives when what has been learned has been forgotten.") Conservatives have a different, I want to say more primitive, mindset: they can't handle complex, nuanced realities, which fill them with insecurity, and must be full of dismay until they are able to discern which "side" they want to be on, then (usually) dedicate their lives to bolstering that "side" with all manner of evidence, bogus or not. Life for them only makes sense as a ball game, and once they've chosen a team, that's it.
Scalia, and I'm sure Thomas, no doubt see themselves as Correctives to a soft, criminal-friendly nanny state that punishes the independent-spirited movers and shakers who made this country great, and they're out to redress the balance as well as they can. So they begin their terms with a grudge, an agenda, subconscious or not. It gives them direction in a complex world, a prism by which to filter out the confusing array of colors, a balm against doubt. They have, as Proust once put it, "the certainty of the second-rate."
Atti says:
@ Evrenseven. That is revolting. A truth that is very nearly soul- crushing. We have one hell of a long road ahead.
Middle Seaman says:
Even hypothetically originalism is impossible. For Scalia to decide according to the original intent, he has to live like Jefferson, no cars, no electricity, etc. Otherwise, he misses the original intent. Originalism is an excuse to permit reactionary thinking to take hold in the courts with cover. It's as serious as the dog ate my homework. The fraud perpetrated by Scalia and Thomas should have been exposed many years ago.
Tosh says:
http://www.pbs.org/wgbh/pages/frontline/post-mortem/?utm_campaign=viewpage&utm_medium=grid&utm_source=grid
Watch this Frontline. pay attention to the NO lab and shoddy business there. The (accused) Cop killer taken into custody had his testicles crushed (FUQQ'N CRUSHED!!!.) I remember that case well. ZERO prosecutions…
Justice is TRUELY blind…
Tosh says:
We are not making a value judgment here… Just New Orleans, in particular, has a long, long history of malfeasance and misconduct, and corruption across the board, at every level. (and its my second home)
blahedo says:
But IOKIYAR, right?
Erich Schwarz says:
"I've concluded Liberals and Conservatives, whether in government, law or elsewhere, are no more comparable entities than, say, men and pomegranates."
I've heard and read the reverse of this comment from conservatives. Neither version of the ad-hominem impresses me much, at least in the way intended.
I really have to wonder if the U.S. will be intact as a single political entity by 2020. We're spending ourselves into the sort of public debt that brought down Weimar Germany and Argentina, at the same time we're splitting into two ideological halves which, apparently, both regard the other half as untermenschen. Glorious.
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