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TRANSCRIPT OF PRESENTATIONS – PROSECUTORIAL IMMUNITY: DECONSTRUCTING CONNICK V. THOMPSON

In November 2011, the Journal hosted a symposium on Prosecutorial Immunity at Loyola University College of Law. The symposium included an in depth analysis of Connick v. Thompson. The following transcript consists of the speakers’ remarks along with audience participation and questions. The Journal has attempted to preserve the character and substance of the discussion. While this is not a traditional Article, the Journal felt that it would be fitting to include it in its Spring volume.

PROFESSOR IMRE SZALAI, LOYOLA UNIVERSITY NEW ORLEANS COLLEGE OF LAW (MODERATOR): Good afternoon. Welcome. I’d like to extend a warm welcome and a special thanks to our dean. And thanks to the audience, the staff, the students, and to Loyola’s Journal of Public Interest Law. Thanks for your tremendous help. And a very special thanks to all of our speakers. And a special, special thanks to Mr. Thompson. He’ll be here later today, and this is just an incredible educational opportunity for our students to learn about the personal side of the law. Thank you, everyone, for coming. And the symposium is—on its surface, the case involves a narrow issue. When can a governmental body be liable for a civil rights violation? This case involves so many other issues. I think you can think of a whole ethics course on this case. Thank you everyone for coming. Just a quick administrative note. We have a lot of speakers and we’ll try to sit through a tight schedule. We’ll try to take questions from the audience. If you have a question, come up to the podium. We’re hoping for one or two questions per speaker. I’d

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306 Loyola Journal of Public Interest Law [Vol. 13 like to introduce our keynote speaker, Mr. Barry Scheck1. He is the co-director of the Innocence Project. He has received countless awards. He is really an inspiration to an entire generation of students.

BARRY SCHECK: Permit me to start by thanking all the investigators, all the lawyers who made the exoneration possible. Forgive me for leaving out the many who should be included, but the list includes the usual suspects for the struggles of justice in and that would be investigators Gary Eldridge, Lisa Oppopla, probably Clive Stafford Smith, Emily Bolton, who founded the Innocence Project in New Orleans.2 All the young, wonderful spirits that animate the New Orleans Innocence Project. And at the head of the line in the John Thompson case, we have the heroic Michael Banks and [J. Gordon] Cooney, [Jr.,]3 for working on John’s case for more than a decade. For a marvelous day-by-day account on this case, read the book Killing Time.4 It ends with him getting out of prison; it doesn’t tell you about the civil case.5 But it’s a wonderful book to read to give a

1. Professor Barry Scheck, Benjamin N. Cardozo School of Law and co-director, Innocence Project, Keynote Address at the Loyola University New Orleans College of Law Journal of Public Interest Law Symposium: Prosecutorial Immunity: Deconstructing Connick v. Thompson (Nov. 3, 2011). 2. Innocence Project New Orleans (IPNO) is a nonprofit law office that represents innocent prisoners serving life sentences in Louisiana and Mississippi, and assists them with their transition into the free world upon their release. IPNO works with legislators, judges, lawyers, law enforcement and policymakers to protect the innocent within the criminal justice system. Since its inception in 2001, IPNO has freed 20 wrongfully convicted prisoners and cleared the name of one other man who died in prison, eight years before DNA exonerated him. INNOCENCE PROJECT NEW ORLEANS, http://www.ip-no.org (last visited Mar. 6, 2012). 3. Partners at Morgan Lewis, LLP, who represented John Thompson in both his criminal retrial and his civil suit against the prosecutor’s office. Mr. Banks is a partner in the firm’s Labor and Employment and Litigation Practice group. He has litigated a wide range of employment, benefits, trade secret, commercial, professional liability, and personal injury issues in state and federal courts. Mr. Cooney is Managing Partner of the firm’s Philadelphia office and practices a broad variety of commercial and civil litigation, with particular emphasis on the defense of class actions in state and federal courts. Their representation of John Thompson began as a pro bono assignment for the firm. Over the roughly decade long fight, they won his full acquittal and a $14 million damage award for the misconduct of the prosecutor’s office that the United States Supreme Court overturned. 4. JOHN HOLLWAY & RONALD M. GAUTHIER, KILLING TIME: AN 18-YEAR ODYSSEY FROM DEATH ROW TO FREEDOM (Skyhorse Publishing, 2010). 5. Connick v. Thompson, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011) (reversing the Fifth Circuit’s decision and holding that the misconduct of Connick’s office did not amount to a “pattern” necessary to penetrate the office’s immunity from civil suit under 42 U.S.C. § 1983), reversing 578 F.3d 293 (5th Cir. 2009) (sitting en banc, a TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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sense of the inside base of the practice of law and these kind of exonerations. Let me thank John Thompson for his courage and generous spirit and unyielding determination to make sure that no other innocent is convicted by the same prosecutorial misconduct. The Innocence Project,6 the Veritas Initiative,7 and the New Orleans Innocence Project8 announced last week at the national press club that we are commencing a multi-city tour on the John Thompson case to begin a dialogue with bar disciplinary officials with the defense bar and the public to address the problem of what can be realistically done to prevent prosecutorial misconduct in the wake of the Connick versus Thompson decision, which is the death nail to civil suits.9 And prosecutors have absolute immunity for conduct that occurs during the adversarial process.10 For the lay people in the audience, there’s a case that prevents civil lawsuits even for the worst kind of criminal conduct when it is done within the adversarial context. So as I said we are beginning this tour. And that tour begins here in New Orleans at Loyola at this conference as well it should. And we will be visiting law schools in Texas, Arizona, California, and at each site with the assistance of a moderator. And we-hope and I feel certain-the active participation of prosecutors in each area, members of the bar discipline counsel, judges, the defense bar, we will systematically address a series of issues to see what really can work to [solve] this problem of prosecutorial misconduct. The objective is not to pillory prosecutors in general or suggest that what happened to John Thompson’s case is typical of what happens on an everyday basis. On the other hand, we can’t pretend that what happened to John

divided court vacated the previous panel opinion and affirmed the district court’s upholding of Thompson’s $14 million damage award). 6. “The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent future injustice.” INNOCENCE PROJECT, http://www.innocenceproject.org/ (last visited May 16, 2012). 7. The Veritas Initiative is an extension of the Northern California Innocence Project (NCIP) that seeks to illuminate the serious problem of prosecutorial misconduct in the criminal justice system today. The organization lauds itself as “NCIP’s investigative watchdog organization devoted to advancing integrity of our justice system through research and data-driven reform, using the work of our preeminent experts in the field.” THE VERITAS INITIATIVE, http://www.veritasinitiative.org/about/mission-statement/ (last visited Mar. 6, 2012). 8. INNOCENCE PROJECT NEW ORLEANS, supra note 2. 9. Connick v. Thompson, supra note 5. 10. Id. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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Thompson is a one-time thing. By the way, [I] read yesterday’s article by Adam Liptak in the New York Times11 and the case that is going to be argued on Wednesday.12 It’s odd when the brief says, there are 28 acts of prosecutorial misconduct and then the other side says there are only 13.13 We’re not talking about anecdotes here. We’re talking about a systemic problem. I’m not saying it’s epidemic, but we have to talk seriously about it. What John Thompson wants is a serious, thoughtful discussion conducted without rancor that yields real proposals for a forum. And at the end of our tour, 16 months from now, we will attempt with an advisory committee to issue recommendations that can make a difference. . . . We’ll be talking about the need for internal review programs for the prosecutor’s office to distinguish between error and misconduct and independent entities to remedy and sanction misconduct. It applies to defense lawyers also. And we have to go look at defender institutions. We have to look at court-appointed lawyer systems. There are different considerations that are appropriate to the different roles that prosecutors and defense lawyers play in our justice system. The solutions are not going to be perfectly symmetrical. But make no mistake, John Thompson’s defense was problematic. And the insights that we hope to gather from our dialogue must be used to reexamine the defense function in the future. So, here are the issues: First, what kind of internal management systems can prosecutors put in place to effectively distinguish between error and misconduct? Because my colleagues in the prosecutor’s office make this point. What is the difference between error and misconduct? This is not an easy task. How can supervisors in the prosecutor’s office determine if the failure to provide disclosed Brady material or the delivery of an improper closing argument in the trial, whether it was the result of youthful inexperience or stress from a high caseload as opposed to criminal misconduct that warrants criminal prosecution? How transparent can an investigation be internally to determine whether the rule breaking was error or misconduct? How can the office design a mediation process that still provides

11. Campbell Robertson & Adam Liptak, Supreme Court Looks Again at Methods of D.A.’s Office in Louisiana, N.Y. TIMES (Nov. 2, 2011) http://www.nytimes.com /2011/11/03/us/orleans-district-attorneys-office-faces-us-supreme-court.html?page wanted=all. 12. Smith v. Cain, 132 S. Ct. 627 (2012). 13. Brief for Petitioner, Smith v. Cain, 132 S. Ct. 627 (2012) (No. 10-8145). TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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for disclosure to the defense of any error or misconduct that protects the rights of the defendant? Does a prosecutor’s office have procedures in place to audit old cases of a prosecutor or that prosecutor’s supervisors after rule breaking is discovered? Are the results to such investigations systematically tracked and used for training procedures? Starting with a landmark study called “To Err is Human,”14 it sent some signals to the healthcare community, and they have made progress in the recent years borrowing from the business community and cognitive scientists to reduce error and malpractice in the healthcare industry.15 If you want really good, easy access to this, read the book The Checklist Manifesto.16 It’s a very important book. Already [the] district attorneys’ offices in New York County under the leadership of Cy Vance;17 and in Dallas under the leadership of Craig Watkins;18 in , Texas, under the leadership of [Patricia] Lykos;19 and in Santa Clara, California, [they] have formed what we in the Innocence Project20 determined professional integrity programs that are designed to develop integral regulatory systems. And we are working on this. There will be a meeting, [a] private meeting. They are sponsored by former professors at New York University later this year. We’ll bring people together to have a real serious, private discussion of these issues. We hope other prosecutors’ offices, and certainly Mr. Cannizaro’s office,21 we hope he gets to the part of this

14. INSTITUTE OF MEDICINE, TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM (Nov. 1999). 15. See Atul Gawande, The Checklist Manifesto: How to Get Things Right (2009). 16. Id. 17. See NEW YORK COUNT DISTRICT ATTORNEY’S OFFICE, http://manhattanda.org /meet-cy-vance (last visited Feb. 25, 2012). 18. See DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE, http://dallasda.co/webdev /?page_id=8 (last visited Feb. 25, 2012). 19. See HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE, http://app.dao.hctx.net/ OurOffice/JudgeLykos.aspx (last visited Feb. 25, 2012). 20. See NORTHERN CALIFORNIA INNOCENCE PROJECT, http://law.scu.edu/ncip/ (last visited Feb. 25, 2012). 21. Leon Cannizarro became the Orleans Parish District Attorney in 2008. See ORLEANS PARISH DISTRICT ATTORNEY: THE D.A., http://orleansda.com/the-d-a/ (last visited Feb. 22 2012). The Orleans Parish D.A.’s office has developed a nationwide reputation for police misconduct, particularly during the 30-year tenure of Harry Connick, Sr., who retired in 2003. According to the Innocence Project, more than 35 prisoners convicted by Connick’s prosecutors have alleged that their trials involved prosecutorial misconduct – and judges have overturned or reduced the sentences in 19 of those cases, including 9 death penalty cases. John Holloway, This week at the Supreme Court: Can a man exonerated of capital murder sue the prosecutor who TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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process, starting with John Thompson’s case. We all have to start getting involved in this process. So that’s issue number 1. I have to [say] one thing. I have been consumed in the last few weeks with a case involving an exoneration in Texas;22 just go online and start reading the articles. It is the most astonishing case. And you’ll be reading more about it [in the news]. And many of the issues dealing with prosecutorial misconduct arise in that case. I just couldn’t help myself. I had to say it. The second issue is, what should be done after we distinguish between error and misconduct? And misconduct is identified internally with a prosecutor’s office. Should there be an independent entity like an inspector general’s office that is charged with investigating prosecutors or complaints from third parties to see if bar discipline is warranted or criminal prosecution is warranted? Should we have independent entities to do that? That is an issue that we should discuss. Because frankly, is it really appropriate, and I think not, to have a prosecutor’s office prosecuting their own for what is potentially criminal misconduct? That makes no sense. There’s too big a conflict of interest there. And I think you have to have independent entities do that. Similarly, there are great questions that have been raised now. One question is whether bar discipline systems as presently constituted are adequate to investigate this kind of prosecutorial misconduct. There is an article that has just been published on the Yale online journal.23

convicted him?, SLATE (Oct. 5 2010), http://www.slate.com/articles/news_and_politics /jurisprudence/2010/10/innocent_on_death_row.3.html; Lincoln Caplan, The D.A. Stole His Life, Justices Took His Money, Editorial, N.Y. TIMES (July 2, 2011), http://www.nytimes.com/interactive/2011/07/03/opinion/sunday/20110703_Editorial_ Annotation.html. Four members of the U.S. Supreme Court rebuked the Orleans Parish D.A.’s office for “pervasive” misconduct during Connick’s time in office. Campbell Robertson & Adam Liptak, Supreme Court Looks Again at Methods of D.A.’s Office in Louisiana, N.Y. TIMES (Nov. 2, 2011), http://www.nytimes.com/2011 /11/03/us/orleans-district-attorneys-office-faces-us-supreme-court.html?pagewanted= 1&refus. 22. John Schwartz & Brandi Grissom, Exonerated of Murder, Texan Seeks Inquiry on Prosecutor, N.Y. TIMES (Dec. 19, 2011), http://www.nytimes.com/2011/ 12/19/us/texas-man-seeks-inquiry-after-exoneration-in-murder.html. 23. David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 YALE L.J. 203 (2012), available at http://yalelawjournal.org/the-yale-law-journal-pocket-part/supreme-court/the-myth- of-prosecutorial-accountability-after-connick-v.-thompson:-why-existing-professional- responsibility-measures-cannot-protect-against-prosecutorial-misconduct/. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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It’s actually referenced by Adam [Liptak] in the New York Times24 so if you want a quick hyperlink, go to that website and hit it. It does an excellent job of describing some of the inadequacies when it’s trying to grapple with the problem of prosecutorial misconduct. So we have to talk about how to strengthen that apparatus to figure this out. The third issue is, do we have adequate statutes on the books to prosecute criminal misconduct by prosecutors discovered many years after it has occurred? In the John Thompson case, Harry Connick claimed that the statute of limitations had run with respect to the prosecution of trial prosecutor Williams,25 a prosecution that was recommended by a young assistant in his office who had been assigned to investigate it.26 This is very graphically described in the book Killing Time,27 and I know we have people here who are intimately familiar with the details. But the point was, putting aside questions about whether Mr. Connick’s decision not to prosecute was appropriate, there still is the question of the statute of limitations. The truth of the matter is, that’s a real issue. When exculpatory evidence is suppressed, and deliberately suppressed, in most states the statute of limitations for criminal prosecution does not run from the time of discovery, but runs from the time of the act. So when these things are discovered 25 years later, it is really difficult to mount a criminal prosecution unless you can show that there was some kind of ongoing crime or conspiracy to cover up. I’m not saying that wouldn’t be adequate in some cases, but we have to look at it. You may know this from civil law: in most states if they leave a sponge in you after the operation, the civil statute of limitations doesn’t run until the time of discovery. But in many states when you’re talking about misconduct by a public official that was hidden, even if they are the ones that hid it, the statute of limitations does not necessarily

24. Campbell Robertson & Adam Liptak, Supreme Court Looks Again at Methods of D.A.’s Office in Louisiana, N.Y. TIMES (Nov. 2, 2011), http://www.nytimes. com/2011/11/03/us/orleans-district-attorneys-office-faces-us-supreme-court.html?page wanted=1&ref=us. 25. En Banc Brief for Petitioner at 44 Connick v. Thompson, 578 F.3d 293 (5th Cir. 2009) (No. 07-30443), 2009 WL 6870688 at *44. 26. Thompson v. Connick, 553 F.3d 836, 848 (5th Cir. 2008) on reh’g en banc, 578 F.3d 293 (5th Cir. 2009) rev’d, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (U.S. 2011). 27. KILLING TIME, supra note 4. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

312 Loyola Journal of Public Interest Law [Vol. 13 run from the time of discovery.28 It runs from the time it happened, and this could be fatal to criminal prosecutions under 198329 by the federal government or state criminal prosecutions for what would be deliberate misconduct where a prosecutor deliberately hides exculpatory evidence. Maybe serious thought should be given to changing state and federal statutes so we have that capacity. I know a friend I just met from the bar disciplinary counsel here in New Orleans actually thinks that those kinds of ideas are the best deterrent. The fourth issue we’re going to look at: Are bar disciplinary groups doing an adequate job of sanctioning misconduct? And I talked about the Yale online law journal.30 The fifth issue deals with the John Thompson case. In a wonderful, thoughtful speech at Bryant Stevenson’s initiative in New York,31 no less a figure than Justice John Paul Stevens,32

28. See, e.g., CAL. CIV. PROC. CODE § 340 (West 2011) (providing that the applicable statute of limitations for § 1983 claims is one year); CONN. GEN. STAT. ANN. § 52-577 (West 2011) (providing that the statute of limitations for § 1983 claims and general tort claims in Connecticut is three years); 745 ILL. COMP. STAT. 10 / 8- 101 (2011) (establishing a two-year statute of limitations for § 1983 claims and one- year statute of limitations against governmental entities or employees); N.J. STAT. ANN. § 2A:14-2 (West 2011) (establishing a two year statute of limitations for claims of official misconduct); HAW. REV. STAT. § 657-1 (West 2011) (establishing a statute of limitations of six years after the cause of action accrued). 29. § 1983 was enacted to give a civil remedy against abuses being committed by various states. The scope of the Act was broadened in later years to provide a remedy in tort liability. 30. David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 YALE L.J. 203 (2011). 31. Justice Stevens, United States Supreme Court Justice, remarks at the Equal Justice Initiative Dinner Honoring Justice Stevens, (May 2, 2011) (transcript available at http://online.wsj.com/public/resources/documents/stevens.pdf). 32. Justice John Paul Stevens, born in Chicago, Illinois, received an A.B. from the University of Chicago, and a J.D. from Northwestern University School of Law. He served in the United States Navy from 1942–1945, and was a law clerk to Justice Wiley Rutledge of the Supreme Court of the United States during the 1947 Term. Justice Stevens, was admitted to and began practicing law in Illinois in 1949. He was then an Associate Counsel to the Subcommittee on the Study of Monopoly Power of the Judiciary Committee of the U.S. House of Representatives from 1951–1952, and a member of the Attorney General’s National Committee to Study Antitrust Law from 1953–1955. He was Second Vice President of the Chicago Bar Association in 1970. From 1970 through 1975, Justice Stevens served as a Judge of the United States Court of Appeals for the Seventh Circuit. Now retired, Justice Stevens took his seat as an Associate Justice of the Supreme Court of the United States in December 1975 upon President Ford’s nomination. See Biographies of Current Justices of the Supreme Court, Supreme Court of the United States, TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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[. . .] said the root of the problem goes back to the precedent that shaped the contours for municipal liability. And he notes that if you go back and look at the early decisions where if Justice Scalia had been on the court,33 perhaps Scalia would have agreed with Stevens that it should have been respondeat superior for their acts.34 And Stevens points out that if that had been the rule, if there were just respondeat superior responsibility in this case for prosecutors, this would end all the endless litigation that goes on in whatever is known as Monell cases35 just like John Thompson’s case. To establish municipal liability you have to show inadequate training, separation, custom pattern, practices, or similar misconduct. Instead of just saying the municipality is liable. And he points out, you can see it in David Garland’s book36 on the death penalty, most pointedly in the broken systems studies that so much misconduct in capital cases and in many others, it is all municipally based. And much of it comes from public officials in certain municipalities that engage in improper conduct, and they are facing political pressures. Now, remember, when John Thompson’s case came before the United States Supreme Court, all the attorney generals filed amicus briefs,37 and they said don’t sustain this liability against prosecutors because they were even arguing for absolute immunity for a liability question. There can be criminal prosecutions. There can be bar discipline. That’s an adequate remedy, and then they said, “and these people can be thrown out of office, right?” Well, okay. Justice Stevens is saying that may be true, but the problem really is the local political pressures, and if you had some kind of respondeat superior, two things would

www.supremecourt.gov/about/biographies.aspx (last visited Feb. 25, 2012). 33. See Oklahoma City v. Tuttle, 471 U.S. 808, 834 (1985) (Stevens, J., dissenting). 34. Id. 35. See Monell v. Dep’t of Soc. Services of City of New York, 436 U.S. 658 (1978). 36. DAVID GARLAND, . PECULIAR INSTITUTION: AMERICA’S DEATH PENALTY IN AN AGE OF ABOLITION (Harvard Univ. Press ed. 2010). 37. See Brief of Alliance Defense Fund and Cato Institute as Amici Curiae in Support of Respondent, Connick v. Thompson, 2010 WL 3232484; Brief of the Innocence Network as Amicus Curiae in Support of Respondent, Connick v. Thompson, 2010 WL 3232485; Brief of the Center on the Administration of Criminal Law, New York University School of Law et al., as Amici Curiae in Support of the Respondent, Connick v. Thompson, 2010 WL 3251771; Brief of Former Federal Civil Rights Officials et al., as Amici Curiae in Support of the Respondent, Connick v. Thompson, 2010 WL 3251774; Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent, Connick v. Thompson, 2010 WL 3198842. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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happen, or three:38 it would end the custom pattern or practice and inadequate supervision;39 that’s number 1. Number 2, here’s, I think, one of the real answers: it would cause all the municipalities to get insurance and to have adequate supervision in place for when they have an agent in tort and the insurance companies would make sure there was adequate supervision.40 That’s how America works. And one of the ironic things about Connick versus Thompson,41 that by statute, Harry Connick was supposed to have Orleans Parish get insurance,42 but they had none. So when there was a $14 million judgment, John Thompson would have taken that money and worked with his Resurrection After Exoneration program where he has a home and tries to give solace to all those who are exonerated. John Thompson could have made very good use of that money. I hope you read his op-ed in the New York Times.43 He said “I didn’t get the money. I don’t care about the money. I want to fix the problem.”44 So I think that Justice Stevens has pointed to something that is a possibility. He also pointed out how Congress can pass statutes that redress faulty interpretations of the Supreme Court by case law, and to go back to the early cases, we got it wrong then.45 But what about this as an idea: Why don’t we have some kind of a statute that says there can be section 1983 liability46 against the municipality? Not even against the individual, if you can prove that there was intentional and deliberate misconduct by a prosecutor that led to the conviction of an innocent man. I think that has some political appeal too, doesn’t it? As we look at this process, I totally appreciate and take the point of my brethren of the prosecutor’s office that you do not want them thinking that every time they make a decision in the case, I’m going to be sued. On the other hand, if there is municipality liability for deliberate misconduct by a prosecutor,

38. Brief of Respondent, Connick v. Thompson, 2010 WL 3232485 (5th Cir. 2010). 39. Id. 40. Id. 41. Connick v. Thompson, 131 S. Ct. 1350 (2011). 42. LA. REV. STAT. ANN. § 42:1441.2 (1995). 43. John Thompson, Op-Ed., The Prosecution Rests, but I Can’t, N.Y. TIMES, Apr. 9, 2011, at WK11. 44. Id. 45. Id. 46. § 1983 was enacted to give a civil remedy against abuses being committed by various states. The scope of the Act was broadened in later years to provide a remedy in tort liability. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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then that means that every top prosecutor is going to make sure that there’s adequate supervision, adequate training, to make sure that you don’t have errors. And in turn, they’ll get insurance. Which will really make sure—they won’t get insurance unless they have adequate systems in place. When you really tease it out, it’s really a rational series of things to think about. So the sixth issue that we’ll be exploring on this tour has to do with the implementation of American Bar Association’s proposing rules 3.8 G and H.47 3.8 G is a new rule that the American Bar Association proposed and I’m proud to say a colleague from law school proposed it.48 Our state has yet to adopt it, but the big ABA did. And it says that any time a prosecutor–[. . .] discovers that there is credible and material evidence, credible and material exculpatory evidence in a case where somebody is convicted, they have an obligation to disclose that to the defendant.49 And then 3.8 H says if a prosecutor has evidence, clear and convincing evidence, that somebody who has been convicted is innocent, they have an obligation to do something about it.50 Now, prosecutors will—some will claim that there is no due process conviction—post-conviction for the disclosure of Brady material. I think that that’s not quite true. I think there is some due process you’re entitled to. But let’s not talk constitutional law. What the ABA is focusing on here are ethical obligations and I certainly think that we all ought to be able to agree that some form of 3.8 G and H should be adopted by every state in this country because that is what we want to believe. If they have material credible evidence that is exculpatory even if they get post-conviction, they should disclose it. And if they have clear and convincing evidence that someone is convicted who didn’t do the crime, they have to do something about it. And that really is part of the professional integrity movement that we are trying to engage in with prosecutors across the country because I do believe that the vast majority of prosecutors will live by these rules and we think they should be adopted everywhere. We’re always open to changes or

47. See generally MODEL RULES OF PROF’L CONDUCT R. 3.8(G)-(H) (2008). 48. Steven Krane is the chair of the Committee on Standards of Attorney Conduct, which is the State Bar to the Association of the Bar of the City of New York. 49. MODEL RULES OF PROF’L CONDUCT R. 3.8(G) (2008). 50. MODEL RULES OF PROF’L CONDUCT R. 3.8(H) (2008). TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

316 Loyola Journal of Public Interest Law [Vol. 13 permutations that make sense. So that is the movement that we are about. John Thompson is a leader of this movement. We are indebted to him for his indomitable spirit. Thank you very much. If you have questions, please come here to the podium.

MODERATOR: Thank you, Mr. Scheck.

SCHECK: I’m glad I can escape now.

STUDENT: Can I ask a question? I’ll come forward.

SCHECK: If you ask, I can hear.

STUDENT: I’m a student, I’m wondering in situations like John Thompson with the general awareness of the people sitting in prison on top of situations not dissimilar to John’s, it seems like research is required to help the people in this situation. So how can students effectively put their energy towards this feat?

SPEAKER: Emily Maw is the director of the Innocence Project and Paul is one of the lawyers working with the Innocence Project and I’m proud to say that Paul and Vanessa from our office in New York exonerated Henry James. After thirty years in prison, he walked out. And I’m proud to say that I am the first person that was able to talk to Henry on the phone and say, “you share a name with one of the great American authors.” And he was pleased to hear it. So what we have now are, I believe, we have our Innocence Project in New York. And there’s a network of Projects, 55 of them in all, and we’ll see Professor Kathleen Ridolfi who’s done great work at a Jesuit school in Santa Clara. She’ll be here in the afternoon, but they have an Innocence Project in northern California. So this is a movement all across the country. And we have seven projects abroad, so it’s an international human rights movement. There’s so much to do whether you’re an undergraduate student or law student. There’s so much we can do not just working on these cases, because that drives our movement, but as you can tell from the remarks I made here that whether it’s in the area of eyewitness misidentification, false confessions, junk or unvalidated forensic science, ineffective assistance of counsel, prosecutorial/police misconduct, these are the causes of all wrongful conviction. So it’s a broad movement. It’s a question of building public support with all those affected because what makes this work is that every time an innocent person is convicted, the person who really committed the crime is out there and may well commit other TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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crimes. So when you can remedy this, it’s a win-win. It’s good for law enforcement. It protects the innocent. We have found that the value of Innocence Projects-with the Innocence movement, we can create a broad-based political effort. It’s not something that Republicans or Democrats or liberals or conservatives will naturally disagree with. We can all work together. There’s so much to do. Talk to Emily Maw. Get involved. Raise money for us. Lord knows we need it. There’s plenty to do.

STUDENT: Am I to understand that the Innocence Project gets convictions overturned through DNA tests?

SCHECK: The question was does the Innocence Project use DNA testing mainly to overturn convictions? Where I am in New York, to date, we have just stuck with DNA. And we do DNA cases all over the country and assist other projects that do DNA cases as well. However, in New Orleans, they do non-DNA cases too. We’re sticking with DNA because there’s plenty of them. When you go to our website, you look at the 275 post-conviction exonerations.51 You know that all those people are innocent. And in more than half of the cases, the real perpetrator has been identified. There’s a great value in sticking to DNA because it’s the gold standard. But we in New York have wound up exonerating people in non-DNA cases. We find other evidence. The Innocence Projects all across the country, including here in New Orleans, will work on non-DNA cases, even posthumous cases work on non-DNA cases. One case in Texas was based on unreliable, invalid arson evidence and the complete false testimony of a jailhouse snitch.52 And this man was executed and Governor Perry had this information in his possession [. . .] ignored it and went forward with the execution in 2004.53 And this has been chronicled in a wonderful article in The New Yorker magazine of Trial By Fire by David Grann.54 That [article] won the [George Polk Award for Magazine Reporting in 2009].55 And

51. INNOCENCE PROJECT, http://www.innocenceproject.org (last visited Feb. 25, 2012). 52. Willingham v. State, 897 S.W.2d 351 (Tex.Crim.App. 1995). 53. Mark Benjamin, The Controversial Willingham Case: What Rick Perry Knew and When, TIME.COM (Sept. 27, 2011), http://swampland.time.com/2011/09/27/the- controversial-willingham-case-what-rick-perry-knew-and-when. 54. David Grann, Trial By Fire, THE NEW YORKER (Sept. 7, 2009), http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann. 55. Robert D. McFadden, Times Reporter Held by Taliban Is Among Polk Award Winners, N.Y. TIMES, Feb. 16, 2010, at A23, available at http://www.nytimes.com TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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just last week a forensic science commission in Texas made a finding that the evidence in that case was unreliable, the arson evidence, and has agreed to look at old arson cases in Texas to see if there are other arson cases. So that’s another class of cases we deal with. And it’s all very important stuff and so we don’t just do DNA. Although in New York, our exoneration efforts are just DNA.

STUDENT: I have a question about timing with material evidence. As a way to address how oftentimes evidence that’s material until someone goes to trial, maybe there’s solutions in trying to new statute or address when material evidence.

SPEAKER: The question is—really goes to discovery and disclosure of Brady material. There has been an enormous amount of discussion about this. One of the great dilemmas in the law is when you look for the definition of what is considered Brady material. In some ways it’s only evidence post-trial that an appellate court will say, oh, if that had been disclosed, the conviction would be reversed. But that’s not really the standard that prosecutors can or should use or do use even in deciding whether they’re looking at evidence and they should disclose it because it’s favorable to the accused. And there’s much discussion, and Professor Gershman is here as one of our leading experts in trying to decide what’s a proper prospective Brady standard. And another issue is what sometimes is open file discovery. Many of my colleagues and prosecutors’ offices quite rightly say, “I won’t have any Brady issues if I make my file open.” And to the extent that there’s any information, we don’t want to disclose prior to the trial because it might endanger witnesses. We can work out time, place, and manner disclosure requirements. That’s a fair consideration. Otherwise, all evidence—and I’m not talking about work product, the thoughts and processes of the lawyers, but witness interviews, forensic reports, the statements of investigators or police reports, all that, if you have some good open file policy in place, and many prosecutors’ offices have such policies in place, a lot of these difficulties can be avoided. Thank you very much. That’s issue number 7; that will certainly be talked about.

STUDENT: In the prosecutors’ offices that have open file access, do we know if they have higher rates of Brady violations?

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SCHECK: Lots of people say they have open file, and there’s questions whether it’s really open file. But that is an excellent study that maybe you should be assigned to. Are you in law school?

STUDENT: I’m in law school.

SCHECK: Well, get with social science types, and we can start tracking whether offices with open files have higher or lower Brady violations. End of Scheck Presentation.

MODERATOR: He’s the First Assistant District Attorney for New Orleans. He served as special advisor to the mayor and he was an officer. [Introducing Graymond Martin.56]

GRAYMOND MARTIN: I saw Dean Klebba come in before, is he still here? I wanted to say hello to him. My name IS Graymond Martin. When I was invited to participate in this symposium, I tried to think how I could best address the issues that might be on your mind. I had a significant role in the research, writing, and drafting of the legal positions that ultimately found favor before the Supreme Court on the issues of the liability of the municipal entity. And I agree with Mr. Scheck that the issue before the court was a very narrow issue. To say that John Thompson had great equitable arguments is an understatement. But we looked at the law. And the law clearly defined deliberate indifference and requires the showing of a pattern.57 The tactic selected by Mr. Thompson’s lawyers carried favor with the trial judge. The three judge panel also supported the single incident liability applied to prosecutors’ offices in municipal liability cases.58 And when we went back to the 5th Circuit Court of Appeals, Mr. Aaron handled the litigation and assisted us in our research and review, and he’ll speak more about the case59 and I’ll move on to what we’ll do about it. It was an interesting experience and I truly believe after an 8/8 vote at

56. Graymond Martin has a Juris Doctor from Loyola University New Orleans College of Law (Law Review Candidate) and a Bachelor of Criminal Justice, also from Loyola University New Orleans. Prior to entering the practice of law, Graymond had a distinguished career in the New Orleans Police Department. Graymond Martin has been practicing law for over twenty-five years. 57. Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011). 58. Id. at 1353. 59. See infra Aaron’s transcript, on pg 325. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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the 5th Circuit,60 the one thing I know about our great judicial system is it’s human. Every person’s cause is another person’s “huh?” We human beings are charged to make judgments where human beings are required to pass and determine materiality determine what is evidence; mistakes will be made. I hope there’s no one in this room who doubts that innocent people are in jail today. Innocent people where the evidence was presented-where there was no foul play, where the prosecutor’s version of the facts was put forth, where all issues were thoroughly litigated and the jury made a determination based on the facts. The system is not perfect by a long shot. Justice in our system is the process. The outcomes are what juries say. Juries determine the version of the facts that they think most likely fit what they heard. Hopefully beyond a reasonable doubt, but once they make that determination, it’s nearly intractable. The issues that result in errors of law, prosecutorial misconduct, hidden evidence, post-conviction relief, but when you talk about post-conviction relief, you’re talking a long time down the road. So it’s our job as lawyers, as prosecutors, as civil servants to build a system that understands that it is designed and operated by human beings who are always prone to errors of judgment. Prosecutors, we make errors of judgment every day. We look at facts and come to a conclusion. And then we look at more stuff and we might change our conclusion. But our preliminary conclusion was an error. Our secondary conclusion may be an error or not. When all this information is coming to you, when you’re operating in an area that’s so important, you have to be reasonably certain that you’re doing the right thing, you have to be absolutely certain you’re doing the right thing for the right reasons and you’re not being prejudiced by a prejudice that you have by certain classes of race. You have to look at it in as pure a form as you can. That’s the oath we took. It’s not to acquire as many convictions as we possibly can. The oath we took is to do justice. We will be fair. We will accept and receive complaints and information from people who may have biases and prejudices. We will evaluate them and see if they violated the law. And if the facts prove that a violation of law has occurred, then we have to make the determination that we reasonably believe that we can get a jury of that person’s peers in our community to return a verdict of guilty. Then we institute prosecution. It’s a very heavy burden,

60. Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009). TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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heavy duty, and we take it serious. Now, I am not a career prosecutor. Is everybody here from Loyola? Can you keep a secret? I have never personally prosecuted a person in my life. I was a police officer. I made cases. I’ve testified in trials. I was a lawyer. I practiced in this city for close to 30 years. I’ve been in the courts. I’ve represented criminal defendants. I’ve represented corporations, did business litigation. So I’ve been pretty much through the system. I’ve worked in city government and I was selected for this job, not because I was a great prosecutor— because I’m not—not because I had this long history of trial work—because I don’t—I was selected for this job because I was a fresh set of eyes. A set of eyes that can look at the criminal justice system-the entire criminal justice system as it operates in this town in this time and say, “what can we do to make it better? To make it live up to the ideals we espouse as lawyers?” When you’re in law school and you hear this stuff, it’s easy. You would never dream that you would be pushed or prodded to go somewhere that you don’t want to go. There are enormous pressures out there on all lawyers, civil lawyers, criminal prosecutors. The pressures get you and if you can’t stand firm to the pressure and you start leaning—and it happens—you are not stainless steel. You’re at best, an iron bar. When you’re operating in a corrosive environment, you will corrode. You’re human beings on each. And you can say, “I’m getting a little round here. Let’s stand up straight.” Or maybe “you’re standing round here so you need to straighten out.” Because the goal always is justice. The goal is not winning. Now, we have an adversarial system. That’s what we call it. And we duke it out in court. And we come out, we win. Civil court, you come out with money. You go “woo hoo, I made money today.” In criminal court, you say “justice was done today because my view prevailed.” If your view was justice, then justice may have been done. But you will lose cases you should absolutely have won and you will win a case to say, how did that happen? I’m not sure. Or the jury or the finder of fact will come up with a conclusion that you never asked them to conclude and you’ll say, “whoa, what did I say to make them think that?” Mr. Scheck has raised some very, very important and poignant issues today61 and I want you to know that some of the things he says, I might have some disagreement about. He says the devil is in the details, that I agree with. You take the word “materiality,” [. . .] I was at the

61. See Scheck supra p. 306-316. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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Supreme Court when the John Thompson case was heard. At least one justice of the Supreme Court misquoted the Brady standard, at least one. And I heard everyone say, “Brady is simple.” But if it’s so simple, then how come we have to litigate this to the Supreme Court every time? It’s not simple. Because of perspective shades of opinion with shades of fact. And what you see as an absolute favorable piece of evidence, I may see as something unimportant in the bottom of my file. That doesn’t mean that I don’t have to give it to you. This is where my work is. My work is to design a District Attorney’s office that lives up to the ideals we just talked about. Somebody shoot me on time because I can talk all day.

MARTIN: Okay. I’ll tell you some of the things we do, but let me tell you what we found. We found a criminal justice system in Orleans Parish that was basically dysfunctional. The District Attorney’s office was dysfunctional. The courthouse was dysfunctional. The police and their ability to timely file meaningful reports was dysfunctional. Each branch of the criminal justice system was pointing fingers at the other branch. The police couldn’t write a report. The D.A. couldn’t prosecute the case. And the judge didn’t know the law. And everybody was blaming everyone else. And we said what we have to do first is focus on our own house. So we set out to repair the relationship between the police and the District Attorney’s office to gather more information better. We also decided because Kyles62 gives us a heavy burden of knowing what’s in the hands of the state agencies, we had to set up a system of revealing that information. Now, Brady is an issue for us. It’s an issue. For Mr. Scheck, it’s a life, it’s a cause. Brady affects what we gotta do every day. But we have a lot to do. I have to make sure Brady is incorporated in the way we do things so the Brady issues are covered in our reorganization, in the execution of the way we review cases, in the way we gather the information up to make sure we have the information that the police department isn’t just throwing away the bad stuff, bringing in the good stuff. Because it’s our duty to know what the Police Department has. So our goal is to build a more fair process. And we can build the fairest process possible, then justice will be the product of that process more likely than not. In the John Thompson case, the Brady violation was egregious and intentional. We even stipulated that there was a

62. Kyles v. Whitley, 514 U.S. 419 (1995). TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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Brady violation. The issue was the deliberate indifference to the process. The D.A.’s office has been precluded from prosecutorial misconduct. If you look at Imbler,63 they say that you got immunity. And the other cases say, what about this piece? Every case has been precluded. Every case. We have immunity, full blown, absolute, prosecutorial immunity. And then we look to see Pottawattamie, 64which is probably the most interesting case. And it was this close from popping the lid off until they settled the case. That was interesting because the prosecutors created the evidence falsely. They nurtured the false evidence. And they ran into the courthouse, and they introduced the false evidence. And they got a false conviction. And they said, “we’re immune.” And the argument in that case was “where does your immunity set in?” And they said, “well, the injury to the defendant occurs upon conviction. So if we make up evidence and never use it, no harm, no foul. It is the use of the evidence.” And of course they had won all the way through the 8th Circuit,65 so the criminal defendant’s lawyers were arguing, “wait a minute, you’re outside of the trial court when you’re making up evidence. You’re not immune from that.” And the court was looking at where does the prosecutorial immunity stop for what kinds of actions, going back to the gathering of evidence? Because that case was such a risk, I assume this is why, but somebody came up with some money in a hurry and put that to rest after oral arguments because nobody wanted to hear what those guys had to say in writing. Because in the 8th circuit, I think that’s decent law. Then in Van de Kamp, they said administrators and supervisors are also immune.66 So now, we have, “we’re immune for whatever we do and our supervisors are immune and now our municipal organizations are immune.” And there’s a little bitty tail left is if the office has a pattern and practice, there’s only two ways you can get me. Du jour policy that says, “we hate Brady,” in writing. Or a de facto policy that says “we hate Brady so much that over time it shows that the office is deliberately indifferent to the rights of the criminal defendants.” Now, a municipal organization based on

63. Imbler v. Pachtman, 424 U.S. 409 (1976). 64. McGhee v. Pottawattamie County, 547 F.3d 922 (2008), cert. dismissed 130 S.Ct. 1047 (2010). 65. Id. 66. Van de Kamp v. Goldstein, 555 U.S. 335 (2009). A former inmate alleged that prosecutors violated his constitutional rights by withholding potential impeachment information. In a unanimous decision, the Court held that prosecutors had absolute immunity in regards to their training or supervision. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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the Thompson case, a municipal organization cannot be held liable for respondeat superior. I believe the 5th Circuit’s decision was wrong. I think the panel would have stood and said strict liability. They basically said, “if there’s a Brady violation, the municipal entity is responsible” because we all know if a Brady violation is likely to occur, and when you engage in human enterprise, a Brady violation will occur. And you gotta remember this, not every Brady violation is intentional. Most of them are oversight. Most of them are sloth, lack of diligence, lack of application, failure to dig through the file, failure to understand the nature of your case and be prepared. That’s why organizations have to build systems to make sure they diligently prepare their cases and are properly forming their case work. Okay. So the first thing, not the first thing I did when I got there, the first thing I did after I got engaged in the John Thompson case, after I started reading this—because I wasn’t a criminal lawyer, I hadn’t worried about Brady in 20 years—is I said “what do we need to do?” If you read the transcripts that were highlighted—and Mr. Thompson’s lawyers like to highlight Harry Connick’s testimony repeatedly because he said some weird things—but if you read that stuff, then the idea is, if you’re hired as a D.A. today, the very first thing you get and you have to sign for is a packet that contains an outline of Brady,67 Giglio,68 and Connick.69 The packet contains three cases; you have to read them. No one 20 years from now will be borrowing this tape to bring to federal court to show “we weren’t deliberately indifferent.” Nobody will be able to say that the attorneys who work in this district attorney’s office during this time were unaware of Brady or its obligations. Now that’s not going to stop every Brady violation, but they can’t say, “I didn’t know.” The next thing is “did you read the file?” We have to put systems in place to make sure the attorneys are diligently doing their work. And we have to make sure they’re honoring their obligation. We have to go out and you have to do it every day, and you have to talk to people every day. We have a meeting not unlike this one, all the trial lawyers talk about the issues that arose during court, issues we see in the cases, appellate issues. And I would say at least every other week, I talk about Brady.

67. Brady v. Maryland, 373 U.S. 83 (1963). 68. Giglio v. United States, 405 U.S. 150 (1972). 69. Connick v. Thompson, 131 S.Ct. 1350 (2011). TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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Not that we have to re-discuss it, but we talk about Brady: “Make sure you are doing your duty. If you’re not doing your duty, you’re not being a prosecutor. You’re being a hack lawyer. If you want to be a hack lawyer—we’ll leave that alone.” (Laughing). So we do training now. I heard Mr. Scheck make some recommendations I had not heard before. I’m not a student of Brady or the Innocence Project, although we work in conjunction with the Innocence Project here. We work with Ms. Maw, and we discuss cases. When she discover that she thinks someone merits a new trial or the wrong person is in jail, we don’t always see eye to eye, but we discuss it. We sit down and talk about it. And we have to be open. I’m intrigued by the idea of the post-conviction relief. I think it’s our duty as prosecutors to always be open to setting aside a conviction in the event we believe, in good faith, that that person is innocent. Because that is the standard we use to institute. Once the jury has spoken, it gives them weight. But if you can convince me, because I am—I believe the juries make errors every day. I’ve always believed that. When I was a policeman, I believed that. As a defense lawyer, I believe that. Jurors are not omnipotent. And once you talk to them, it is our system, it is our process. Justice is a process. The outcomes can’t be serendipitous because the process is so important. It’s our duty, my duty, prosecutors’ duty to ensure the process is as fair as it possibly can be. Because you can’t get a good outcome unless the products passed through the system are fair. End of Martin presentation.

MODERATOR: If we could get started again. [Introducing William Aaron70].

WILLIAM AARON: Initially when I was asked to speak, we discussed a couple different ways to approach this. We could talk about how we approached this case or the various twists that were involved in the case. For the last decade I’ve been involved with this case. When I was involved, the issues of ethics were those that were truly intriguing to me. So the case was brought after the local D.A. asked that the conviction of Mr. Thompson be set aside because a lab report indicated that he was not the perpetrator of a certain armed robbery. This was not a DNA case.

70. William Aaron is the shareholder of the Aaron firm. He is a special prosecutor for Orleans Parish D.A.’s office. He argued this case at the district level. He is an alum of Loyola law school. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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There was no way to go back and check whether or not the lab report that surfaced after 20 years was actually correct in the first place. But the D.A. erred on the side that it was an innocent individual so erred on the side of a conviction. So once Connick did that, the lawsuit came. The case involved 12 causes of action, some under state law and some under federal law. The ones we talk about in the media deal with federal law. The state had law claims of negligence, et cetera, which would have imposed liability notwithstanding the fact that Monell71 exists. All those were won at the trial court level. In terms of the federal claims, each of the individuals, Harry Connick and at least four prosecutors, were personally sued. All of those cases went away by means of summary judgment. When the case went to the jury, it went on two issues. One was whether or not the D.A.’s office had an unconstitutional policy, and the jury came back on that and said no. The second issue, which is the one that the Supreme Court ultimately got, was whether or not the D.A. was deliberately indifferent to the need for training of the prosecutors. The interesting thing about deliberate indifference was that the lawyers and the judges argued several times, and if you read Scalia’s concurring opinion, he references a heated discussion I had with the trial court judge as to what should go to the jury with deliberate indifference.72 We tried the case with the jury for a week. And the jury came back with a question. After listening to the judge’s extensive jury charge, the jury said, “what is deliberate indifference?” The judge went back and said, “read my jury charges that you didn’t understand in the first place and reach a decision.” The jury came back with a finding of deliberate indifference.73 Many people ask “how did the jury come up with $14 million?” Fourteen of the years he was in prison were on death row.74 There was no evidence presented in terms of damages. So the jury came up with the number. Now, one of the things that was interesting when we move for the post-trial considerations was the inconsistency of the jury verdict. The jury concluded that the office was deliberately

71. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 72. Connick, supra note 5, at 1367. 73. Thompson v. Connick, No. 03-2045, 2007 U.S. Dist. LEXIS 29717 (E.D. La. Apr, 23, 2007). 74. Brief for Respondent at 5, Connick v. Thompson, 131 S.Ct 1350 (2011) (No. 09-571). TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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indifferent [. . .] The trial court did not see the inconsistency. When we got to the 5th circuit having lost before the three-judge panel, I was on my 5th D.A. So, we started out with Harry Connick; it ended up being Mr. Jordan.75 Then there were a couple of interim D.A.s, and the last D.A. was Leon Cannizaro. I got different direction from each along the way. I had to explain how we got to where we were. When I argued the case en banc, we thought it would be 17 judges deciding the case. One of the judges, Judge Dennis, decided to recuse himself. Everybody said, there’s no way in the world you’ll end up with an 8 to 8 tie. And it was an 8 to 8 tie.76 Procedurally, when en banc review is granted, the opinion of the panel is vacated. It’s as if it never existed. If someone wins, the majority on the winning side, there’s a new opinion. The quirk occurs when there’s an 8 to 8 tie. There’s no opinion. Normally, the judges will comment, if you read the en banc opinions, the dueling opinions, if you will. In Thompson, the judges were pretty unkind to each other. One might say that some commented on the intellectual prowess or lack thereof of the other judges. My point though is that one of the reasons that the Supreme Court would not grant certiorari is because there was no opinion. So those on the Thompson side of the equation were cheering. “The Supreme Court will never grant certiorari; this is not precedent.” For whatever reason, people started citing to the original panel decision and it was that showing that convinced the Supreme Court that they needed to do something. That and when we told them two things-many, many years before, the Supreme Court in a footnote had suggested you can have deliberate indifference on a showing of a specific instance of bad conduct. The instance was a sheriff who was the uncle of a new hire who had been known for violence, and he was still hired.77 And after he was hired, he shattered a

75. Eddie Jordan was appointed as U.S. Attorney by President Clinton in 1994. In November 2002, Mr. Jordan was elected District Attorney for Orleans Parish. In March 2005, Mr. Jordan was “found liable for racial discrimination for firing dozens of white employees and replacing most of them with black employees.” In early 2007, there was an outcry by the public, demanding more criminal convictions. In May 2007, “a judge threatened to release 20 suspects from prison because Jordan’s office took too long to bring their cases to trial.” Amid public disdain and demands for his resignation by governmental officials, Mr. Jordan resigned as district attorney on October 30, 2007. Timeline: Eddie Jordan’s Career, WDSU.COM (Oct. 30, 2007), http://www.wdsu.com/news/14459981/detail.html. 76. Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009). 77. Bd. of the County Comm’rs. v. Brown, 520 U.S. 397 (1997). TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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woman’s knees.78 It was that case that the jury judge panel said there could be deliberate indifference.79 And the split 8 to 8 in terms of the 5th Circuit sitting en banc was the case.80 When you’re dealing with a prosecutor and police officer, it’s apples and oranges. A police officer might have a high school education. And in terms of a prosecutor, they go to high school, four years of college; they go to law school; and they’re also tested, if you will, by a bar to see if they know enough to be thrust upon the public to provide representation. So, I think the U.S. Supreme Court correctly found that there was in fact a distinction.81 And that then raises another issue, which is an issue we raise at the trial court level (which fell on deaf ears), which is, should a prosecutor’s office have to train people who have been certified as being proficient by a state bar? And should you—it’s taught, with the exception of Tulane law school, they’re taught criminal law and criminal procedure. Anyway, when we get to the Supreme Court, they embrace the issue. Much has been said earlier about what are the remedies for prosecutorial misconduct? And let me say this: I think hiding evidence is deplorable. I think it’s sanctionable. And I think it’s criminal. Each of these found a way into the Thompson case. Let’s talk about the criminal remedy. After it was noted that the lab report had—was hidden and that certain blood evidence was taken out of an evidence room and destroyed, Connick convened a Grand Jury. And because there was a statute of limitations—so whether you have a moral problem with that, that’s what the law in Louisiana is.82 Should Connick’s office have convened a Grand Jury? Perhaps it would have been better for the attorney general to look at that. There’s more transparency. And in Louisiana, you send it to the attorney general’s office. The current D.A. has done that. But I do think there’s a mechanism there, but that’s the criminal remedy that was involved. What can you charge people with, malfeasance? But there is a problem when you discover it, and maybe there needs to be some tweaking. Maybe something like when rape victims don’t recall something till later so there’s a delay in the start of the statute of limitations. I think you could do something

78. Id. 79. Id. at 1184. 80. Brown v. Bryan County, 67 F.3d 1174, 1178 (5th Cir. 1995). 81. Bd. of the County Comm’rs v. Brown, 520 U.S. 397 (1997). 82. Connick v. Thompson, 131 S.Ct. 1350 (2011). TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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along those lines. So the ethics issues, the ethics rules in Louisiana at the time provided a prosecutor must turn over evidence. Not just exculpatory, but favorable. In the Thompson case, there was—what happened was a guy who stole the evidence was Jerry Deegan. Many years after he stole the evidence, he went into the evidence room, he took a bloody swatch of pants and a tennis shoe and they never saw their way back into the evidence room or the courtroom thereafter.83 So he got rid of the evidence. He subsequently got cancer and he thought he was gonna die; he ultimately did. And he gave a confession to his buddy, if you read Riehlmann’s testimony84 before the disciplinary board, it shifts to whether he truly knew what case Deegan was talking about. But at some point, it all clicked and the charges were brought by the office of the disciplinary counsel for failure to timely report the incident. One of the problems the disciplinary board had, was how hard do you sanction somebody that doesn’t report someone? You still want to show that it is something that is sanctionable. The Supreme Court grappled with it, but they reprimanded Riehlmann. Riehlmann was a witness at the trial court level with respect to the issue of what did Harry Connick do upon learning there was hidden evidence. It went to the issue of deliberate indifference.85 Now, the other remedy is obviously the civil remedy. And like it or not, when we’re in the 1983 context, we deal with Monell.86 For those of you who don’t speak Latin, it means that your boss ain’t liable just because you did something. One of the problems with the jury charge was the jury thought, “he worked for Harry Connick, the D.A.’s office admitted he did wrong, so the D.A.’s office must be liable.” Well, 1983 litigation is policy-based litigation. And the policy is this, you’re not going to saddle the tax payers. The person that’s paying is the taxpayer. You’re not going to saddle the taxpayers unless the government really, really screwed up. So the standard should have been that Harry Connick was put on notice, he had bad employees, and they were prone to commit a Brady violation. Absent such knowledge, there should not be liability imposed on a D.A.’s office. Over the course of 30 years of practicing law, I’ve represented D.A.s. I’ve handled 30 cases. And let me say this, I agree that something needs to be

83. Id. at 1368. 84. In re Riehlmann, 891 So. 2d 1239 (2005). 85. Id. 86. Monell, supra note 71. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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done, but the cases I have handled that I’ve found, it’s not a case of ignorance. The case, Thompson versus Connick, Jerry Degan knew Brady very well. If he was dumb and didn’t know about Brady, we would have had a different situation. Over the years in each instance, the D.A. has intentionally hidden evidence or intentionally done whatever. I have yet to see a situation where they said “gee, that was Brady? I didn’t know.” I agree you get certain areas of Brady where even Philadelphia lawyers might have difficulty making a judgment call on it. But in most instances, if it has the likelihood of being favorable to the defendant, that doesn’t mean it will exculpate. It might be favorable, but you turn it over. I think it’s more of a policy standpoint of the office where they say, when in doubt, turn it over. Now, I used to be City Attorney of the city of New Orleans and I was over all traffic offenses, et cetera. I had an open file policy. Open file policy works if three things happen. One, you honor Brady requests and turn over information. Two, you actually let the person review your file. And three, the defense counsel actually shows up to take a look at it. One of the things I have found is that in many instances the prosecutorial misconduct could have been timely detected without the defendant sitting in jail for years if the defense counsel had done their job. Let me say this, which is a little known fact in the Thompson case. The blood evidence came up at a motion hearing with respect to the armed robbery case. And one of the prosecutors stood up with the defense counsel sitting behind him and he said, “your Honor, we need to get a blood sample from John Thompson.” And you think the defense counsel would think that maybe blood is important in this case? Didn’t do a thing. Now, the evidence is conflicting on where the blood evidence went. He said he put it on the chief prosecutor’s desk and then from there, who knows where it went. But they did order it. And defense counsel was put on notice of its existence. And if he had filed appropriate motions, he had seen what evidence went into the evidence room. The pants went into the evidence room, the tennis shoe went into the evidence room, and the lab report. What happened is this, when I went to look for it, it wasn’t there. In Orleans Parish, you have two places to look, there’s the police evidence room and then there’s the clerk’s office. So you have two places. The guy still never went to look for it. So I say that these are facts that you will never read in the media or whatever, but this is actually what went on in this particular situation. TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

2012] Transcript of Presentations 331

Now, let’s talk a little about immunity. Because I made the argument to the Supreme Court and it was joined in by prosecutors all over the United States that should you really grant immunity to individual prosecutors but not grant immunity to the office? If you look at Imbler versus Pachtman, the theory is this. You want to give a prosecutor absolute immunity because you don’t want him to pull his punches for fear of being sued. Well, if you don’t want the individual to pull punches, do you want the office to pull punches? I suggest to you that the next step the Supreme Court is going to take—it didn’t take it in Thompson because it didn’t have to—but the direction that this Supreme Court is going to take is probably take it one step further and say that the office should be immune. Where does that get us? Well, it probably-as everybody in here is going, “oh, God, where does this take us?” It takes us to the remedies that I think are the appropriate remedies for prosecutors. I think those who hide, withhold evidence with criminal intent should be prosecuted. I think those who violate ethical rules should have their license in jeopardy. I think if you tailor those to the individual, I think that’s the way to deal with it. As a practical matter, what was suggested was this, let’s limit it to intent. Should the public have to pay for somebody who has criminal intent? And the supervisors and chain of command have no idea that this person has criminal intent. I don’t think that’s fair either. But I do think that the individual that withholds evidence should be appropriately punished. If it’s a prosecutor, do something with the license and do something with their freedom. Since what they have effectively done is taken someone else’s freedom away. If you took those two routes, those are more effective routes to go. Why do I say that? I don’t think this particular Supreme Court is going to overrule Imbler versus Pachtman. I do not think the United States Congress is going to remove immunity for prosecutors. Have you ever seen a Congressperson run on anything other than a law and order platform? No. What I’m talking about is a realistic solution to the problem which is bad conduct by lawyers and I think the way to deal with it is to take away their freedom and put at jeopardy their license to practice. And if you address it in those ways, that’s the proper way to go. One of the things that’s interesting, I like to count numbers and see what happens, if you count the number of judges that John Thompson got, he got the trial court judge, the three judge panel, 8 judges en banc and 4 at the Supreme Court for a total of 16. Harry Connick got no judges at TRANSCRIPT.FORMATTED (DO NOT DELETE) 5/16/2012 1:42 PM

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the trial court, he lost the three judge panel and 8 en banc, 5 at the Supreme Court for a total of the 13 and he won. I don’t know, I find it interesting that Thompson won on the number of judges but didn’t win ultimately. It’s interesting that the system can work that way. Most of you aren’t aware that there’s a big movie deal involving this case. And when we were trying the case, all the lawyers said, who should play us? Young me, Taye Diggs, and old me, Denzel Washington. The rights were sold to Disney, and it was like The Nine Lives of John Thompson. But the movie was not supposed to be about John Thompson, it was about the two crusading lawyers, et cetera. Now, let’s say this, John Thompson had excellent legal representation. I’ll end on this. He was represented by a little firm (joking) headquartered in Philadelphia called Morgan Lewis with 1400 lawyers. And so that’s another irony of the case. I thought it was arrogant to not alternatively plead pattern of practice to show deliberate indifference; his counsel took the position of solely relying on a single incident. I suggest that had they argued pattern of practice and put on evidence and proved it, there may have been a different result.