Court seems skeptical on $14 million judgment

WASHINGTON – The Supreme Court on Wednesday seemed skeptical of a $14 million judgment given to a former death row inmate who accused New Orleans prosecutors of withholding evidence to help convict him of murder.

John Thompson, who at one point was only weeks away from being executed, successfully sued the district attorney's office in New Orleans, arguing that former District Attorney Harry Connick showed deliberate indifference by not providing adequate training for assistant district attorneys.

Prosecutors normally have immunity for their actions while working, but Thompson convinced a jury that the district attorney's office had not trained its lawyers sufficiently on how to handle evidence. The 5th U.S. Circuit Court of Appeals was split evenly on appeal, which upheld the lower court verdict.

"They all knew what not to produce. What they didn't know was what to produce," Thompson's lawyer J. Gordon Cooney said.

But justices repeatedly questioned how much training would be enough to satisfy any new legal standard on Brady rights for prosecutors. Brady rights are named after the Supreme Court's Brady v. Maryland case, which says prosecutors violate a defendant's constitutional rights by not turning over evidence that could prove a person's innocence.

"I mean, is an hour a year enough? Is an hour a month enough?" Justice Elena Kagan said.

And if the court rules that prosecutors have to train on Brady, what about other issues like using improper statements in closing arguments, Chief Justice John Roberts said. "You know that that can happen, just as you know there can be Brady violations. So they need training in exactly what they can say and can't say in closing arguments," Roberts said.

Added Justice Anthony Kennedy: "And Miranda, and proper supervision of affidavits in support of search warrants, and proper instructions that tell the police not to exceed the scope of the warrant. So our course is expanding."

The concern is "that you don't want to have to give the prosecutors a clinical law school course before you let them do their job," Justice Ruth Bader Ginsburg said.

Most of the issues brought up are either issues for police officers, or issues about what is said in a public courtroom, Cooney said. But prosecutors can hide evidence for decades without anyone knowing about it, leading to long incarcerations or possible executions of innocent people, he said.

"It is clear that four prosecutors knew about the existence of blood evidence for months, and it was never produced to the defense. And that blood evidence would have conclusively established John Thompson's innocence," Cooney said.

Thompson was convicted of attempted armed robbery in 1985, shortly before he was to stand trial in the unrelated case of the killing of Raymond Liuzza Jr. He did not testify during the murder trial. Prosecutors used Thompson's conviction in the robbery case to help secure the death penalty in the murder case.

In 1999, an investigator working on Thompson's case discovered a crime lab report that prosecutors had not turned over, indicating Thompson's blood type did not match the perpetrator in the attempted robbery.

A state appeals court set aside Thompson's murder conviction in 2002 after deciding he'd been unconstitutionally deprived of his right to testify during the murder trial. That cleared the way for the new trial in which Thompson was acquitted.

The district attorney's office does not contest that its prosecutors withheld a crime lab report favorable to Thompson.

But "it is impossible to determine beforehand exactly why a Brady violation will occur, and what specific training measures would prevent it from occurring," said Stuart K. Duncan, arguing for the district attorney's office.

A former prosecutor, Gerry Deegan, confessed to another lawyer in Connick's office, Michael Riehlmann, that he had intentionally withheld the evidence. Deegan made the admission after learning he was going to die of cancer.

"Even assuming training, if Deegan was going to destroy the evidence, or remove it anyway, as he admitted later to Riehlmann, then the training or lack of training is just irrelevant," Kennedy said.

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The case number in Connick v. Thompson, 09-571.