The Next Supreme Court Nominee: Can We Retreat From the Creation of the Invincible Prosecutor?

If he truly values someone's experiences and ability to see how the Court's opinions affect people's daily lives, President Obama should nominate someone who will, among other things, take prosecutorial accountability seriously.
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As journalists and lawyers chase down leads on whom the White House is vetting for the upcoming nomination of a Supreme Court justice, interest groups, lobbyists, and political organizations prepare to elevate their issues and causes in the vetting and confirmation processes. But, with the focus on election-year politics and the prospect of an ideological shift on the Court, few have said much about what experiences and values a prospective nominee should bring to the table. The President may be the exception. President Obama has been silent on whether his nominee must hold certain views on the contentions issues upon which a new justice may need to decide -- abortion restrictions, affirmative action policies, voting rights issues, gun regulations, unions, executive action on immigration -- but has discussed some of the qualities he seeks in a nominee. Writing for SCOTUSblog, the President made clear that he will nominate someone "eminently qualified," who brings "a commitment to impartial justice," and, critically, whose "experience that suggests he or she ... grasps the way [the law] affects the daily reality of people's lives in a big, complicated democracy, and in rapidly changing times."

With respect to this last quality, an important question is whether the nominee understands the lived experiences of individuals entangled in the criminal justice system as well as their families. While the national rhetoric on mass incarceration seems to be moving towards recognition of its reality and the need to address it, many root causes evade detection and discussion. Pushing for police accountability is a necessary step, but there is a relative silence about perhaps the most powerful player in the criminal justice system: the prosecutor. And, the prosecutor is one of the players the Supreme Court and the judiciary generally can help to meaningfully regulate. It is past due that society engages in this conversation.

If you are surprised to hear that the Supreme Court has the power to proscribe prosecutorial prerogatives, well, that is understandable. After all, the Court has done very little in recent years to acknowledge the role prosecutors play in tilting the criminal justice system towards punitive outcomes and even less to hold them accountable.

Take, for example, the Supreme Court's 2011 decision in Connick v. Thompson. In that case, the Court threw out a $14 million award that a jury provided to John Thompson, a man who spent 18 years in prison (14 of them on death row) for crimes he did not commit. Mr. Thompson faced a possible execution because New Orleans prosecutors never disclosed several vital pieces of evidence, including a blood test that demonstrated he was innocent of an attempted armed robbery -- evidence that blew apart the State's strategy and theory in the murder case. (That's right: Mr. Thompson was not wrongfully convicted once, but twice.) After a court threw out his attempted armed robbery conviction and a jury acquitted him on the murder charge at a re-trial, Mr. Thompson filed a lawsuit, seeking some remuneration for the years of his life and the future opportunities that a corrupt prosecution stole from him. A jury found that the district attorney's office had failed to sufficiently train its employees to observe the constitutional duty to disclose evidence favorable to the defendant under Brady v. Maryland. A five-member majority of the U.S. Supreme Court (that included now-deceased Justice Scalia) overturned the jury's verdict, depriving Thompson of every dime.

When it was decided, Connick v. Thompson appropriately garnered a great deal of attention. Dahlia Lithwick referred to it as the "meanest" decision ever. And, Scott Lemieux discussed how the opinion "reflects poorly on the American criminal justice system." These and other commentators have made two key points, and have made them well: first, both the Supreme Court and the Orleans District Attorney's office mischaracterized the facts, straining to depict the cause of Mr. Thompson's wrongful conviction as the work of a single rogue prosecutor who committed "a single" Brady violation; second, the decision all but forecloses the possibility of anyone ever winning a civil suit against a prosecutor. One cannot hold a district attorney liable in an official capacity because Connick v. Thompson sets an impossibly high bar for proving that an office failed to adequately train its lawyers. Moreover, careless and crooked prosecutors enjoy absolute immunity in their individual capacities.

Shortly after Thompson, the Court did hold a prosecutor's office -- actually the same Orleans Parish District Attorney's office -- accountable for constitutional violations in Smith v. Cain. In that criminal case, the Court overturned Juan Smith's murder convictions because the prosecution unconstitutionally withheld from defense lawyers evidence that the State's key witness could not actually describe the alleged perpetrators. That turned out to be an "easy case" for the Court, and was largely seen as a narrow corrective measure to ensure the New Orleans office that the Court let off the hook in Thompson still received some kind of message that its unconstitutional conduct could be identified and redressed. In Lyle Denniston's words, "In some sense, the grant had the appearance of a new attempt to impose some firmer obligations on the New Orleans prosecutors to obey the Brady mandate." But, the Court framed the opinion as a straightforward application of the existing caselaw; in other words, it broke no new ground and merely restated the due process principles that have long existed but long failed to reign in the sort of prosecutorial excesses and misconduct on display in Smith.

The image of an invincible prosecutor emerged again in 2015 in Davis v. Ayala, when the Supreme Court reversed a Ninth Circuit decision which had granted a criminal defendant a new trial where the prosecutor had (arguably) intentionally discriminated against prospective Hispanic and African-American jurors when it used peremptory challenges to strike all seven of them during jury selection. Rather than give the defense attorneys a chance to respond to the prosecutor's purported reasons for excluding these jurors, the trial judge heard only from the prosecutors outside the presence of Mr. Ayala's lawyers. With no adversarial input, the trial court decided the State's reasons for striking all of the Hispanic and African-American jurors were not discriminatory. The Supreme Court reinstated the trial court's ruling, overturning the Ninth Circuit's decision to hold the prosecution responsible. The Supreme Court's opinion turned on complex questions of federal law governing the circumstances in which federal courts can grant relief to prisoners convicted in state court, but one significant consequence is that prosecutorial decision-making was further immunized from adversarial testing and judicial scrutiny. Importantly, the Supreme Court has limited resources, and it chose to expend energy on a case in which its ruling will be interpreted on-the-ground as endorsing the prosecutor's decision to exclude racial minorities from the jury.

Recently, several respected judges have stepped forward to bring light to our nation's "epidemic" of prosecutorial misconduct. One prominent former prosecutor recently wrote that "[t]he epidemic is devastating the lives of innocent people and breaking families; it is devouring our tax dollars; and it has destroyed the public's faith in our justice system." Yet, over the past decade, the Supreme Court has issued almost no rulings actually holding prosecutors accountable for their improprieties. Given what we see in the typical cases -- cases like Thompson and Ayala -- how can we ensure that prosecutors do not go too far in the future?

There are five primary means to keep prosecutors from overstepping the bounds of propriety and fairness: (1) criminal courts can overturn convictions obtained as a result of prosecutorial misconduct and dismiss unwarranted charges; (2) juries in civil courts can hold district attorney offices liable for prosecutorial misconduct; (3) professional associations and disciplinary counsel can fine, suspend, or disbar prosecutors who violate ethical canons; (4) district attorney offices can meaningfully train their assistants and punish those who engage in misconduct; and (5) the Department of Justice can initiate proceedings against prosecutors who violate federal civil rights legislation.

Option 1 is not promising. Courts are reluctant to reverse convictions, especially in jurisdictions where the judges themselves are elected officials. The Thompson majority demolished option 2. And, as anyone who with experience in the criminal justice system can tell you, options 3, 4, and 5 are almost never utilized. Disciplinary actions against prosecutors are extremely rare, if not non-existent in most jurisdictions. Though some offices provide sufficient training, the conduct that put John Thompson behind bars is all too common when district attorneys are under intense pressure to secure convictions to succeed in competitive elections. Finally, the Department of Justice has hardly ever enforced certain laws that impose fines on prosecutors for their civil rights violations.

But, the Supreme Court has the power and influence to bring all five of these options to life. If it begins to infuse meaning into the due process and equal protection doctrines meant to protect criminal defendants from prosecutorial misconduct and overreaching, lower courts will follow its lead (and option 1 will become viable again). If the Court revisits its tight-fisted jurisprudence on prosecutorial civil liability, juries can speak into the system and hold offices accountable again. And, if the Supreme Court puts meaningful prosecutorial accountability on its agenda, bar associations and district attorneys and perhaps even the DOJ might acknowledge incentives to play a broader role in regulating how the most powerful players in the criminal justice system administer that power.

The Supreme Court has for too long advanced and entrenched an ideal of the "invincible prosecutor." The nomination of a new justice provides the president with an opportunity to do more than look for someone with stellar credentials. If he truly values someone's experiences and ability to see how the Court's opinions affect people's daily lives, President Obama should nominate someone who will, among other things, take prosecutorial accountability seriously.

Note: The author posted an earlier version of a similar piece on the "Second Class Justice" blog in 2011.

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