Putting Prosecutors Above the Law

By Anthony Gregory, The Independent Institute
Apr. 12, 2011

The Supreme Court has again upheld the principle that prosecutors are above the law. Connick v. Thompson is the newest peak into the gross corruption of American criminal justice, and a reminder of what government power means.

John Thompson was convicted of armed robbery in 1985 in New Orleans. Then he faced a murder trial, and knowing his robbery conviction would come up if he testified, he waived the opportunity. He was convicted and sentenced to death. He sat in prison for eighteen years, including fourteen on death row.

But he was innocent. The prosecutors in both cases had withheld evidence. They had a blood sample that later proved his innocence in the robbery. They had a report of eyewitnesses describing the murderer as six-foot tall with close-cropped hair. Thompson was 5’8’’ with a large Afro. What’s more, the state’s witness in the murder trial happened to fit the description of the killer.

Much later, facing terminal illness, one prosecutor admitted to another in the DA office about the blood evidence. They both hid the truth for years.

Then the truth surfaced. Thompson’s robbery conviction was overturned and his execution stayed a month before his scheduled death. A new trial exonerated him for the murder.

Withholding exculpatory evidence violates the Constitution, according to Brady v. Maryland (1963). But the Supreme Court ruled in Imbler v. Pachtman (1976) that individual prosecutors are fully immune to civil suits for courtroom wrongdoing, even when it leads to death sentences for the innocent. Two years ago, the Court extended this principle to supervising prosecutors in Van de Kamp v. Goldstein.

And now, in a 5–4 ruling, the Court has essentially immunized the entire municipality, overturning Thompson’s successful lawsuit against New Orleans District Attorney Harry Connick Sr. for poorly training prosecutors in their obligations under Brady.

The questions facing the Court: was there an actual “pattern” of Brady violations that should have prompted the lead D.A. to better train his prosecutors, and was poor training the cause of the injustice?

In his concurring decision, Antonin Scalia said that the travesty “was almost certainly caused not by a failure to give prosecutors specific training, but by miscreant prosecutor Gerry Deegan’s willful suppression of evidence he believed to be exculpatory, in an effort to railroad Thompson.”

If the conservatives are right that the D.A. office is not liable, Thompson is just out of luck. Those most personally responsible can’t be touched. Forget fines or damages. A couple of his prosecutors still practice law.

The doctrine of “sovereign immunity”—the indemnity of officials who commit even intentionally criminal behavior on the job—underlies much of government’s malfeasance. It’s implicit in America’s regulatory state, its military policies, all the way up to the White House.

But nothing is more despotic than the precedents that shield prosecutors from any recourse in a wide range of bald injustices.

Conservatives sometimes argue that the federal judiciary should not fuss over the rights of the accused and convicted, “coddling” criminals and undermining local courts and police. But should the Supreme Court repeatedly reward prosecutorial misconduct? Is this not judicial and prosecutorial tyranny?

Our society is overly litigious. People sue cigarette and fast-food companies, neglecting their own personal responsibility. They sue employers for firing them illegally, when such decisions should be a matter of contractual liberty. We are a culture of would-be victims. But Thompson is the real deal.

Nobody will pay for his ordeal. State criminality is above the legal standards that apply to the rest of us. This is the real nature of government—the right of state agents to do what would be criminal if done by common people. Confiscating money by force is “taxation” for the government; when you or I do it we call it “theft.” What is “monetary policy” when done by the state is called “counterfeiting” if done privately. And when prosecutors knowingly hide evidence and doom an innocent man to death, it is not called attempted murder or even false imprisonment. It is an injustice for which no one’s head must roll.

Perhaps somewhere the rule of law thrives. But thanks in part to the Supreme Court, it’s missing in America’s courtrooms.