Thursday, October 7, 2010

Supreme Court Looks at Prosecutors Without “Code”

In A Few Good Men, we learn about people with and without Code. Unit. Corps. God. Country. Lt. Kendrick says, "Pfc. William Santiago is dead, and that is a tragedy. But he is dead because he had no code. He is dead because he had no honor, and God was watching."


Yesterday, the Supreme Court heard arguments in Connick v. Thompson. The facts of this case are shocking to any career prosecutor.

In 1984, Raymond T. Liuzza Jr. was murdered outside his New Orleans home. The defendant was arrested for the murder. Victims of an armed robbery recognized the defendant's picture in the paper, and contacted the police. The armed robbery case was screened and approved by an assistant district attorney. While approving the case, the ADA, noted that forensic tests should be performed on blood left at the scene. The tests were not done initially, but right before trial some results were received by the prosecutor. The results indicated that the robber had type B blood; the defendant had type O blood. The blood evidence was not mentioned at the armed robbery trial and the defendant was convicted. He was later convicted of the murder and sentenced to death. (The defendant claimed that he did not testify at the murder trial in part because he did not want to be impeached with the robbery conviction.)

In 1999, an investigator working on a habeas petition discovered a copy of the lab report. One of the ADA's later admitted to withholding the lab report.


This not a close case of prosecutorial discretion and ethics. As a prosecutor, sometimes it was hard to recognize what may be exculpatory, because what is exculpatory may sometimes depend on the defense theory of the case. But honesty, openness with counsel and the court, and a bias towards disclosure if it was even close usually allowed those issues to be resolved.


The issue before the Supreme Court is not whether the failure to provide this exculpatory evidence is excusable. Thankfully, it is not. The issue before the Court is whether the prosecutor's office should be held civilly liable for the illegal conduct of one of its prosecutors, on the theory that the office failed to adequately train its employees.


I think this is a bad idea.


I take a hard line on prosecutorial ethics and discretion. A prosecutor, who deliberately withholds evidence, resulting in a wrongful conviction, does not need more training. Every prosecutor is reminded from day one of this responsibility, and should face reminders every time he or she reviews the discovery rules. Instead, this case presents a knowing and intentional violation of ethical and legal obligations, as well as basic moral obligations.


I have learned the hard way that people who are not honorable, especially prosecutors who do not have Code, will do things that are not honorable. And people suffer as a result. But the fact is, as I hope the Supreme Court recognizes, that for people without Code more training will be counter-productive. All such training will do is teach them precisely how far they can go before they cross the line.


  1. Just found your site via Doug Berman. Welcome to the blogosphere!

    I can't tell from your post why you think the prosecutor in this case should not be held civilly liable or what that has to do with training. Could you elaborate?

  2. I believe that the prosecutor who made the decision to withhold the evidence should be liable -- not oly in civil court, but possibly criminally.

    The theory in the Supreme Court is that the prosecutor's office is liable because it did not provide sufficient training. I don't believe that the office, however, should be liable under this theory. Every lawyer knows this is wrong, and no amount of training will overcome the institutional pressures to withhold evidence in order to obtain a conviction.

  3. Gotcha. I hadn't caught that you were okay with him being held personally liable.

    Looking forward to reading more; the intersection of technology and (what's left of) the Fourth Amendment is an important and underdeveloped topic.

  4. But because of the absolute immunity that prosecutors / district attorneys enjoy, the petitioner has *NO* recourse against the (despicable excuse for a human) ADA that caused this problem. So suing the office is their only reasonable *lawful* retaliation (the reasonable *unlawful* retaliation would be the beat to death the ADA...)

  5. A good point.

    Absolute immunity depends on whether the prosecutors were acting in an advocacy or administrative/investigative role. There is an argument in this case that the prosecutors were acting in an investigative capacity when they obtained the DNA evidence for testing and when they later withheld the results, and thus were not entitled to absolute immunity.

    I don't know if any Circuit Court has bought this argument. Suing prosecutors personally is not a cery profitable endeavor due to the low salaries, and I would guess a government would not indemnify the prosecutors in this instance becuase the failure to disclose is outside the scope of reasonable actions.

    Regardless, prosecutors remain ethically bound to disclose exculpatory information. They may also be subject to criminal liability.