Whither Malicious Prosecution?

Over at Simple Justice, Scott Greenfield writes forcefully about the recent U.S. Supreme Court  decision in Connick v. Thompson which overturned a $14 million jury award in a §1983 action. Greenfield provides a summary of the case:

“Petitioner the Orleans Parish District Attorney’s Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland, 373 U. S. 83, by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge….

He then sued the District Attorney, under §1983, for violation of his civil rights under the theory that they prosecutors were not adequately trained in their duty to disclose potentially exculpatory evidence under Brady.  A jury awarded Thompson $14 million.  In a 5-4 decision by Justice Thomas, the Supreme Court took it back.

Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.

Greenfield concludes with rhetorical flourish:

“For individuals, people who have suffered the indignity of their constitutional rights being violated by those given the authority to do horrible things to others, there is a message here:  Who cares?  Most people believe that there is a way, a place, where you can turn if someone in government screws with your rights, that every American has a right, a RIGHT, to go to court to seek a remedy for the harm done them.  Surprise.

For those other individuals, the ones who decry the remedies like suppression that let the guilty free, under the guise that if the police or prosecutors do wrong to any particular person, there must be another way, there isn’t.  This isn’t about enforcing individual constitutional rights.  This isn’t about providing a remedy to an individual for a conceded violation of their constitutional rights.  This is about protecting the government from its own victims by making it nearly impossible to meet the proof demanded.

Do the judges who think Brady is just another joke, that constitutional rights are someone else’s problem down the road apiece, feel even a twinge of concern for the 18 years Thompson spent in prison?  What about the fact that Thompson would have been executed had his investigators not fortuitously found the blood swatch?  Or do they take comfort that the majority of the Supreme Court couldn’t care any more than they do?”

Professor Sherrilyn Ifill, commenting on the oral arguments in Connick v. Thompson laments over how Mr. Thompson became not only a victim but a bystander in his own appeal:

But without question the most disturbing aspect of the argument was the failure of any of the justices over the course of the hour – or either counsel for that matter – to make reference to Mr. Thompson himself, or what he suffered during his 14 years on death row for a crime he didn’t commit. To read the transcript of the argument in this case, is to confront the indifference and cynicism that so often characterizes our society’s response to gross and inhumane constitutional violations in the criminal justice system. A man’s life was stolen because of the unconstitutional conduct of state actors. And still Justice Scalia’s most biting and obnoxious remarks disparaging Thompson’s arguments were greeted by the assembled spectators with laughter.

For this reason, Connick is one of the most important cases the Court will decide this year. We cannot decry the state of criminal violence in some of our cities, without acknowledging how corruption in the justice system contributes to our inability to invest all of our citizens in cooperating with and supporting the efforts of the thousands of honest cops and prosecutors who legitimately seek to protect our communities and serve justice. And these concerns should merit at least a few lines in our nation’s papers as they review the Supreme Court’s work this year. “

It is difficult to reconcile Blackstone’s legal maxim “for every right, there is a remedy” with the stark reality that public prosecutors are effectively above the law.

Consider the Supreme Court of Canada’s earlier decision in Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65, which held “[w]ithin the core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety or in actions for “malicious prosecution…” (at para. 49). Compare this with the Court’s view that “…the Attorney General, after finding that a Crown prosecutor has acted in bad faith, does not have the power to restrict a member’s practice or disbar a member.  An Attorney General can do nothing to prevent a Crown prosecutor from practising law in another area.” (at para. 50).

Then there is the Supreme Court of Canada’s decision in Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9 (S.C.C.) which that held that “a suit for malicious prosecution must be based on more than recklessness or gross negligence. Rather, it requires evidence that reveals a willful and intentional effort on the Crown’s part to abuse or distort its proper role within the criminal justice system.” (at para. 35 per Iacobucci and Binnie, JJ.; emphasis added).

Finally, the Supreme Court of Canada’s decision in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 (S.C.C.) has made proof of “malice” or “improper purpose” altogether quixotic:

[79] In order to prove malice, a plaintiff must, in accordance with Nelles, bring  evidence that the defendant Crown was acting pursuant to an improper purpose inconsistent with the office of the Crown attorney.  As we have seen, in deciding whether to initiate or continue a prosecution, the prosecutor must assess the legal strength of the case against the accused.  The prosecutor should invoke the criminal process only where he or she believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law.  It follows that, if the court concludes that the prosecutor initiated or continued the prosecution based on an honest, albeit mistaken, professional belief that reasonable and probable cause did in fact exist, he or she will have acted for the proper purpose of carrying the law into effect and the action must fail.

[80] The inverse proposition, however, is not true.  The absence of a subjective belief in sufficient grounds, while a relevant factor, does not equate with malice.  It will not always be possible for a plaintiff to adduce direct evidence of the prosecutor’s lack of belief.  As is often the case, a state of mind may be inferred from other facts.  In appropriate circumstances, for example when the existence of objective grounds is woefully inadequate, the absence of a subjective belief in the existence of sufficient grounds may well be inferred.  However, even if the plaintiff should succeed in proving that the prosecutor did not have a subjective belief in the existence of reasonable and probable cause, this does not suffice to prove malice, as the prosecutor’s failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable:  Nelles, at p. 199; Proulx, at para. 35.  Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice.  The third and fourth elements of the tort must not be conflated.”

John Emerich Edward Dalberg Acton (Lord Acton), writing to Bishop Mandell Creighton in 1887 observed that: “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”

Whither malicious prosecution ? Does not “immunity tend to corrupt, and absolute immunity corrupt absolutely”?

 

35 Responses to “Whither Malicious Prosecution?”

  1. Ted Folkman Says:

    Nice post. The problem with this analysis, though, is that Thompson was not suing the prosecutor who actually withheld the evidence, but the supervising district attorney; the theory was a failure to train the lower-level prosecutors appropriately. The issue seemed to me to be one that could come out either way. The question you’re posing, though, seems aimed less at yesterday’s decision and more at the underlying question: why was the prosecutor who was the actual wrongdoer not liable?

  2. Antonin I. Pribetic Says:

    Thanks for your comment, Ted.

    Admittedly, my analysis was focused on prosecutorial immunity generally. I do note, however, the comparative analysis between the “deliberate indifference” standard in Connick v. Thompson and the “recklessness or gross negligence” standard in Nelles, Proulx and Miazga, none of which truly affords a remedy in a wrongful conviction or false imprisonment scenario. In Ontario (and other Canadian common law provinces) “Her Majesty the Queen in Right of Ontario” is the proper party to a malicious prosecution lawsuit, but it is the Ministry of the Attorney General that employs Assistant Crown attorneys which is potentially vicariously liable for torts committed by its employees. However, an intentional act is an independent cause of action, so arguably it is beyond the scope of employment. Moreover, the tort of negligent prosecution no longer exists, and the tort of malicious prosecution has only succeeded twice in the last 30 years. This begs the question as you point out: “why was the prosecutor who was the actual wrongdoer not liable?”

  3. shg Says:

    Ted’s question is a good one, though reflective of those outside the realm of 1983 work. Since the offending prosecutor is immune, Thompson had to seek a ministerial duty by another as his theory of prosecution. But the issue in the case wasn’t the theory, but what proof was necessary to sustain the theory.

    The question came down to single incident (which breaks down into two issues) or pattern and practice. The court went with the latter, knowing that it’s nearly impossible to prove due to the nature of Brady violations and that it leaves the aggrieved without recourse despite conceded proof (as in Connick).

    The single incident breaks down into horizontal or vertical definitions. If 5 prosecutors conceal Brady from one defendant, is it 5 incidents or 1? Does it suffice or fail because only one defendant was harmed? The court held it was a single incident, and insufficient to establish a pattern and practice, which required multiple defendants.

    By adding up all the piece of the decision, one comes inexorably to a conclusion that the court has made it impossible (on a practical level) for the plaintiff to prevail. This is what gives rise to the complaints about the court having forsaken the defendant and denied him redress. Most of this is well known to criminal defense lawyers, so we don’t feel the need to repeat the obvious in any detail.

  4. Antonin I. Pribetic Says:

    Thanks, Scott, for the thorough explanation.

    Government liability for prosecutorial misconduct in Canada suffers a similar deficit. In Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, the Supreme Court of Canada held that while an action for misfeasance in public office was a viable claim against investigating police officers and the Chief of Police, the Province did not have a private law obligation to institute policies and training procedures. I suspect that municipal liability under s.1983 reflects this judicial policy choice.

  5. Ted Folkman Says:

    Thanks, Scott. You hit the nail on the head when you noted that I don’t practice in this area!

    You write:

    Since the offending prosecutor is immune, Thompson had to seek a ministerial duty by another as his theory of prosecution.

    I guess what I was getting at was the point you make here. Isn’t the real question why the wrongdoer (or, vicariously, the state) should be immune from suit? The doctrine we’ve created about deliberate indifference seems an odd way to address the problem. Maybe it would be too fundamental of a change to question a prosecutor’s absolute immunity, and of course there are some policy reasons that favor immunity.

  6. Antonin I. Pribetic Says:

    Thanks to both you and Scott for your thoughtful comments. I’ve written a new post The Criminal Justice System and Prosecutorial Immunity: Time to Upset the Apple Cart incorporating your recent comments and welcoming further discussion of this important topic of shared interest on both sides of the 49th parallel.

  7. Afternoon Waiting-to-Fly-Back-to-Nashville Links | The Agitator Says:

    […] Roundup of critical reactions to this week’s SCOTUS decision in Connick v. Thompson. […]

  8. Connick v. Thompson | Lawyers on Strike Says:

    […] I marvel at the sheer fatuousness of the court and its jurisprudence, and its decision to even take the Connick case in the first place.  The behavior of the Supreme Court is at this point reminiscent of nothing so much as the Dickensian caricature of the French nobility in the days leading up to the bloody French revolution.  And indeed as reports from the very oral argument of the case reveal: “To read the transcript of the argument in this case, is to confront the indifference and cynicism that so often characterizes our society’s response to gross and inhumane constitutional violations in the criminal justice system. A man’s life was stolen because of the unconstitutional conduct of state actors. And still Justice Scalia’s most biting and obnoxious remarks disparaging Thompson’s arguments were greeted by the assembled spectators with laughter.” (H/T Antonin Pribetic @ Trial Warrior) […]

  9. Russ Says:

    So the question I wondered after reading the opinion (and, other than the random pro bono case, I have no experience with §1983) is whether they sued Connick because the actual prosecutors who violated Thompson’s rights are immune from prosecution. Judging from the comments above, I assume this was indeed the case? If so, I’m not sure I can fault the Court for reaching the decision it did. As much as I abhor immunity for prosecutorial immunity, creating a cause of action against another party wouldn’t seem to be the answer to me. To blame the Court is to take attention away from the real problem here: the fact that the prosecutors–the ones who knowingly sat on exculpatory evidence–are able to avoid justice.

    If I’m misunderstanding the reason Connick was sued rather than the actual prosecutors, I would appreciate it if somebody with a better understanding of the facts could offer a clarification. Thanks!

  10. Antonin I. Pribetic Says:

    Russ, see Thompson v. Connick , 578 F.3d at 296:

    After his release, Thompson brought suit alleging various claims against the District Attorney’s Office, Connick, James Williams, Eric Dubelier, and Eddie Jordan—the District Attorney in 2003—in their official capacities; and Connick in his individual capacity (collectively, “Defendants”).3 The only claim that proceeded to trial was a claim under § 1983 for wrongful suppression of exculpatory evidence in violation of Brady v. Maryland. Thompson presented two theories of liability to the jury: (1) that the Brady violation was due to an unconstitutional official policy of the District Attorney’s Office, and (2) that the Brady violation was caused by Connick’s deliberate indifference to an obvious need to train, monitor, or supervise his prosecutors. The jury found that the Brady violation was not due to an official policy of the District Attorney’s Office, but was due to a failure to train. The jury awarded Thompson $14 million in damages. Defendants filed timely motions for judgment as a matter of law—before and after the verdict—as well as a motion to amend or alter the judgment and a motion for a new trial.4 The district court denied all of these motions, and Defendants appealed.

    3. Connick was dismissed in his individual capacity prior to trial.
    4. Defendants correctly argue that the district court erred in naming Connick, Dubelier, and Williams in the judgment and abused its discretion by denying their Rule 59(e) motion to alter or amend the judgment to correct this error. We have previously held that it is proper to dismiss allegations against municipal officers in their official capacities when the allegations duplicate claims against the governmental entity itself. See Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (noting that the official-capacity claims were duplicative of the claims against the governmental entities); cf. FED. R. CIV. P. 25(d) (providing that when a public officer is sued in his official capacity and then ceases to hold office, his successor is automatically substituted as a party). Because it is undisputed that the claims against Connick, Dubelier, and Williams, who are no longer employed at the District Attorney’s Office, are duplicative of the claims against the governmental entity, they should not have been named in the judgment.

  11. Russ Says:

    Gotcha. Your new post today gets to the crux of my concern regarding the whole situation (i.e. why Thompson was forced to prove a lack of training on the part of the supervising attorney when common sense tells you the actionable offense wasn’t the training but rather the prosecutor’s deliberate conduct).

  12. Bergman Says:

    From a constitutional law perspective, I find myself wondering: If all means of legally petitioning the government for redress in cases where the government stepped across the bold red line in the Constitution, labeled “Thou Shall Not” are eliminated, is the only remaining remedy to, euphemistically speaking, water the roots of the Tree of Liberty?

  13. Antonin I. Pribetic Says:

    Interesting point and thanks for commenting. You may find some support from Canadian constitutional law in Edwards v. Canada (Attorney General) sub nom “Persons Case” where Lord Sankey remarked: “The British North America Act planted in Canada is a living tree capable of growth and expansion within its natural limits.” Then again, watering the roots of the Tree of Liberty may be ineffective if dry rot has set in.

  14. Atticus Says:

    Also, from a practical standpoint, you advance a theory where you have the chance to collect a judgment in the event you prevail. The surest way to do that is to get the government entity on the hook. A $14 million judgment against an individual is normally no good unless there is insurance coverage for it. I’m not sure if there would have been coverage for any of the individuals, but the odds are even if there was it would not have covered a judgment of that size.

  15. Antonin I. Pribetic Says:

    I agree. The deep pocket would be the self-insured city of New Orleans which likely remains in a deficit following Hurricane Katrina.v I also think that any finding of “deliberate indifference” would otherwise void a co-insurance or umbrella policy, if applicable.

  16. Law Prof Says:

    This case makes me feel unclean to be a lawyer.

    No wonder this profession can’t get no respect. We don’t deserve it.

  17. Antonin I. Pribetic Says:

    There’s plenty of blame to go around. but lawyers do not deserve recrimination or condemnation. The prosecutors in Connick v. Thompson lost their right to call themselves lawyers when they breached Thompson’s constitutional rights which nearly cost him his life and abrogated their professional and ethical duties. They are no longer lawyers, they are scofflaws.

  18. John Q. Galt Says:

    1) soap box
    2) ballot box
    3) jury box
    4) ammo box

    we’re moving ever closer to #4

  19. Afternoon Waiting-to-Fly-Back-to-Nashville Links | Mohawk Political Says:

    […] Roundup of critical reactions to this week’s SCOTUS decision in Connick v. Thompson. […]

  20. bacchys Says:

    I disagree that lawyers (in general) don’t deserve recrimination or condemnation. The legal profession is the least-regulated and worse disciplined in the country. If all these so-called “good” lawyers were actually that well-intentioned and ethical, why are the “bad apples” able to get away with it so often?

  21. Antonin I. Pribetic Says:

    Thompson’s defense lawyers were instrumental in his exoneration. There is a tendency to mix apples with oranges, including bad apples. Not all prosecutors are unethical, just like not all criminal defense lawyers are competent. The point is that only prosecutors have absolute immunity, even if they are malicious or grossly negligent.

  22. bacchys Says:

    Thompson’s defense lawyers were instrumental in his exoneration. What are they doing to get the unethical prosecutors in this case disbarred? IOW, what are they doing to clean up their profession?

    I’m sure there are good prosecutors, just as I’m sure there are good cops and good corporate executives. But there are also “bad apples,” and I’m not seeing enough from the “good apples” towards ridding the profession of the bad.

    Last year USAToday published the results of a six-month investigation into misconduct by Federal prosecutors. The conclusion: the Catholic Church was harsher on pedophile priests than the DoJ is on their miscreant prosecutors.

    http://www.usatoday.com/news/washington/judicial/2010-12-08-prosecutor_N.htm

  23. Antonin I. Pribetic Says:

    I’ve addressed this issue in a follow-up post: The Criminal Justice System and Prosecutorial Immunity: Time to Upset the Apple Cart

  24. Tracy Gary - Hill Says:

    I am trying to find an attorney who can assist (pro bono) in an obvious wrongful conviction case. Suggestions PLEASE!

  25. Antonin I. Pribetic Says:

    Without knowing where you live, I cannot determine which lawyer or organization may be able to assist you. Contact the Innocence Project: http://www.innocenceproject.org/ (US) or the Association in Defence of the Wrongly Convicted (AIDWYC): http://www.aidwyc.org/ (Canada).

  26. Tracy Says:

    The state is Alabama, I believe one of our family members contacted the innocent project years ago, but I will contact them again for sure. It seems as every other state has support for this situation with the exception of AL.

    Thank You for responding, now that I’ve provided the state, let me know if any other assistance comes to mind.

  27. Tracy Gary - Hill Says:

    Another question; does the aidwyc practice outside of Canada?

  28. Tracy Says:

    The state is Alabama, I believe one of our family members contacted the innocent project years ago, but I will contact them again for sure. It seems as every other state has support for this situation with the exception of AL.

    Thank You for responding, now that I’ve provided the state, let me know if any other assistance comes to mind.
    Another question; does the aidwyc practice outside of Canada?

  29. Antonin I. Pribetic Says:

    Alabama State Innocence Project

    Equal Justice Initiative of Alabama
    122 Commerce Street
    Montgomery, AL 36104

  30. Antonin I. Pribetic Says:

    I don’t think so, but check their website or send them an email. Good luck in your pursuit of justice.

  31. Tracy Says:

    EJI said they only handle Death Row cases, thank you for your well wishes, and I appreciate your responses

  32. Aaron Swartz and the Assault on Open Information Says:

    […] opposition to official U.S. government policy. Bearing in mind that prosecutors are effectively above the law when they cook evidence or engage in sham prosecutions, one must note that the criminal […]

  33. Malicious Government Prosecution Aaron Swartz and the Assault on Open Information « Moorbey'z Blog Says:

    […] opposition to official U.S. government policy. Bearing in mind that prosecutors are effectively above the law when they cook evidence or engage in sham prosecutions, one must note that the criminal […]

  34. Aaron Swartz and the Assault on Open Information » Counterpunch: Tells the Facts, Names the Names Says:

    […] opposition to official U.S. government policy. Bearing in mind that prosecutors are effectively above the law when they cook evidence or engage in sham prosecutions, one must note that the criminal […]

  35. Malicious Government Prosecution Aaron Swartz and the Assault on Open Information « Moorbey'z Blog Says:

    […] opposition to official U.S. government policy. Bearing in mind that prosecutors are effectively above the law when they cook evidence or engage in sham prosecutions, one must note that the criminal […]

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