Connick v. Thompson: Both Answers Are Right — What Was the Question Again?

In Supreme Court cases, the majority and dissent sometimes talk right past one another, framing the question for decision so differently that they almost seem to be writing about different cases.  See, e.g., the dueling opinions earlier this week in Connick v. Thompson (No. 09-571).  Thompson was convicted of attempted armed robbery and murder, and then sentenced to death.  A month before his execution, a bloodstained swatch of cloth came to light that proved Thompson was not the perpetrator in the robbery prosecution.  The murder charge was eventually retried, and Thompson was acquitted.  In all, he served 18 years in prison based on his wrongful convictions.  Moreover, it turns out that an assistant district attorney who was part of the team that prosecuted Thompson deliberately withheld the swatch.  The District Attorney’s office now concedes that Thompson’s constitutional rights were violated under Brady v. Maryland.  The question now is whether the DA’s office should be civilly liable to Thompson for this violation.

Prior cases interpreting 42 U.S.C. § 1983 (the federal civil rights law Thompson invoked in his lawsuit) reject vicarious liability for the government when a government employee violates consitutional rights; in order to recover, as matters unfolded, Thompson was obliged to show that the District Attorney had been deliberately indifferent to a need to train his subordinates regarding their Brady responsibilities.  Prior cases also establish that a “failure to train” claim must ordinarily be based on multiple violations of constitutional rights; a single violation, such as that suffered by Thompson, would require extraordinary circumstances to justify relief.

So much everyone agreed on.

For the majority, the case presented a highly abstract legal question: whether there is something particular about the difficulty and frequency of Brady questions confronting line prosecutors that imposes a general duty on DAs to provide Brady training, such that a failure to provide training could fairly be characterized as a deliberate indifference to defendants’ Brady rights.  The majority sensibly answered this question in the negative, reasoning that prosecutors, as licensed attorneys, are perfectly capable of educating themselves about Brady.  Taking the case on the majority’s terms, Thompson had to lose — to hold otherwise would effectively invite the federal courts to micromanage the CLE programs of DAs’ offices across the country.

But the dissent framed the issue quite differently.  In the dissent’s view, the case presented the much less abstract question of whether the specific evidence presented by Thompson at his civil trial permitted an inference that the DA had been deliberately indifferent to Thompson’s rights.  The case was not about Brady training as a general proposition, but whether a particular DA in a particular set of circumstances was obliged to do more to instill a greater respect for and understanding of Brady rights in his office.  Framed this way, the case was more favorable to Thompson:

Abundant evidence supported the jury’s finding that additional Brady training was necessary to ensure that Brady violations would not occur: (1) Connick, the Office’s sole policymaker, misunderstood Brady.  (2) Other leaders in the Office, who bore direct responsibility for training less experienced prosecutors, were similarly uninformed about Brady.  (3) Prosecutors in the Office received no Brady training.  (4) The Office shirked its reponsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements.

Part of what drives the different perspectives of the majority and dissent is a different view of the scope of a failure to train claim.  For the majority, such a claim is merely about the transmittal of information about constitutional rights; if subordinates already have the information or can easily discover it themselves, then there is no need to train.  On the other hand, the dissenters see training as also involving a drawing of attention to constitutional rights — it’s about conveying not merely the content of the rights, but also their importance.  Thus, the dissent faulted the DA’s “cavalier approach to his staff’s knowledge and observation of Brady requirements,” which “contributed to a culture of inattention to Brady.”  For instance, the dissent noted, the DA “never disciplined or fired a single prosecutor for violating Brady.”

What will the impact of Connick be?  Read for all it’s worth, the majority’s reasoning (training is about transmitting information, and prosecutors are perfectly able to learn this stuff on their own) would seem to leave little room for failure to train claims against prosecutors — perhaps even in multiple violation cases.  On the other hand, the majority defined the question before it so narrowly that future plaintiffs may still have good grounds for distinguishing their cases if they have any office-specific evidence to rely on, as opposed to a generic theory that all DAs should provide Brady training.

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