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,  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,  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,  3 S.C.R. 339 (S.C.C.) has made proof of “malice” or “improper purpose” altogether quixotic:
 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.
 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”?