A Dark Day For Justice

  Score another victory for what I call the regal species of judicial activism, the school of through that holds the king can do no wrong. By a vote of 5-4, the United States Supreme Court once again granted a prosecutor immunity from a federal law suit on grounds of prosecutorial immunity.

       The facts of the case are shocking. A New Orleans man was sent to death row because a prosecutor failed to perform his duty, this time the Constitutionally required duty of turning over evidence that showed the defendant was not the culprit. Given the vagaries of the law of prosecutorial immunity, the man wrongly sent to death row could not sue the prosecutor who withheld the evidence, Gerry Deagan. He was performing his duty as a prosecutor: under the court’s functional test for determining when to grant prosecutors a pass, the law blew Deagan the tyrant’s kiss.

       Instead, the plaintiff sued Deagan’s boss, Harry F. Connick, for failing to train his subordinates that they had a duty to turn over exculpatory evidence. The Supreme Court tossed held that there because this was an isolated case, there is no reason to believe that Connick’s failure was anything other than an isolated act, and that it was insufficient to support a claim of deliberate indifference by Connick to the constitutional rights of the accused. It is another nail in the coffin of police misconduct litigation.

       Given the state of the law, the result was foreseeable. We do permit prosecutors to live in a world without consequences when it comes to violating the constitutional rights of the accused.

       Prosecutors posture as ministers of justice. Their role is to strike hard blows, but fair blows. Turning over exculpatory evidence is not a mere evidentiary issue; it is a matter of constitutional significance unless and until the Supreme Court reverses Brady v. Maryland. To suggest, as some do, that there is a parallel or rough equivalence between a prosecutor’s ignoring Brady and a defense lawyer’s late compliance with court-ordered discovery orders borders on the criminally naïve. The defense has no duty to see that justice is done.

       Justice Ginsburg laid to waste the folly of the majority justification of prosecutorial misconduct: “No fewer than five prosecutors” kept inculpatory evidence from the defendant for many years. If must have taken all the energy Justices Thomas, Roberts, Scalia, Alito and Kennedy could muster to force this excrement of a decision through the eye of the needle necessary to stitch together this decision.

       John Thompson spent 18 years in prison, 14 of them on death row, for crimes he most likely did not commit. His prosecutors had good reason to know he did not commit these crimes. They hid the evidence from juries. When another jury heard the truth, it awarded Thompson $14 million. The Supreme Court took that verdict away yesterday in yet another 5-4 decision. It is a brazen act of judicial activism no conservative will decry. Search your Constitution in vain for the immunity that grants state actors permission to lie in your name. You won’t find it.

       Yesterday was a dark day for justice.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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