Academic journal article Harvard Law Review

Federal Courts - Section 1983 Litigation - Fifth Circuit Equally Divides on Decision to Uphold Judgment against District Attorney's Office for Withholding Exculpatory Evidence

Academic journal article Harvard Law Review

Federal Courts - Section 1983 Litigation - Fifth Circuit Equally Divides on Decision to Uphold Judgment against District Attorney's Office for Withholding Exculpatory Evidence

Article excerpt

FEDERAL COURTS--SECTION 1983 LITIGATION--FIFTH CIRCUIT EQUALLY DIVIDES ON DECISION TO UPHOLD JUDGMENT AGAINST DISTRICT ATTORNEY'S OFFICE FOR WITHHOLDING EXCULPATORY EVIDENCE.--Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009) (en banc).

Prosecutors are immune from civil liability for their actions while representing the state in judicial proceedings. (1) But a district attorney's office may be liable under 42 U.S.C. [section] 1983 (2) for violations of defendants' constitutional rights if a prosecutor's conduct is attributable to the municipality. (3) Recently, in Thompson v. Connick, (4) the en banc Fifth Circuit, by a vote of 8-8, automatically affirmed a $14 million [section] 1983 judgment against the Orleans Parish District Attorney's Office for withholding exculpatory evidence during the prosecution of plaintiff John Thompson, who spent eighteen years in prison following his murder conviction. (5) Under current [section] 1983 municipal liability doctrine, Thompson should not have prevailed because he did not demonstrate a pattern of similar constitutional violations by the District Attorney's Office. But because demonstrating such a pattern is exceptionally difficult for [section] 1983 withholding evidence claims, courts should change the inquiry for these specific claims to examine whether prosecutorial training shows deliberate indifference to defendants' constitutional rights.

On January 17, 1985, John Thompson and Kevin Freeman were arrested and charged with the murder of Raymond T. Liuzza, Jr., who was robbed and shot in New Orleans on December 6, 1984. (6) After viewing Thompson's picture in the newspaper, Jay, Marie, and Michael LaGarde, all victims of a December 28, 1984, robbery, identified Thompson as their assailant. (7) Assistant District Attorney Bruce Whittaker noted in office paperwork that the government might test blood belonging to the LaGardes' assailant that was recovered from Jay LaGarde's pants. (8) The government performed the test about one week before Thompson's trial for the LaGarde robbery began, and it showed that the perpetrator had type B blood, but prosecutors never disclosed this report to Thompson and did not introduce it at his trial. (9) At his first trial, for the LaGarde robbery, a jury found Thompson guilty of attempted armed robbery and sentenced him to forty-nine and a half years in prison. (10) Because this conviction would have been admissible as impeachment evidence had he testified, Thompson chose not to take the stand in his defense at his subsequent trial for the Liuzza murder. (11) On May 8, 1985, a jury convicted Thompson of first-degree murder and sentenced him to death. (12)

Fourteen years later, an investigator discovered a copy of the LaGarde blood report. (13) Thompson was then tested and found to have type O blood, and a stay of execution was ordered. (14) Later investigation showed that Assistant District Attorney Gerry Deegan had deliberately withheld the blood report. (15) After the trial court granted Thompson a new trial for the armed robbery charge, the state elected not to prosecute, (16) and Thompson filed for postconviction relief from his murder conviction. (17) The trial court commuted Thompson's death sentence to life in prison, (18) and in 2002 the Louisiana Fourth Circuit Court of Appeals vacated his conviction for the Liuzza murder. (19) Following a new trial in which Thompson testified in his defense and presented thirteen pieces of evidence prosecutors had previously withheld, a jury found Thompson not guilty after deliberating for only thirty-five minutes. (20)

On July 16, 2003, Thompson sued the Orleans Parish District Attorney's Office, Harry Connick, the District Attorney at the time of Thompson's prosecution, Eddie Jordan, then-District Attorney, and others, all in their official capacities. (21) The district court granted summary judgment in favor of the state on Thompson's malicious prosecution and intentional or reckless infliction of emotional distress claims based on absolute prosecutorial immunity and dismissed Thompson's 42 U. …

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