Wednesday, March 30, 2011

Our higher level of training makes our misconduct less culpable

Yesterday the SCOTUS let the Orleans Parish D.A.'s office off the hook for a $14M verdict for prosecutorial misconduct. Typical 5-4, with Thomas writing for the Court. The Times-Pic reports.
[The district court's] findings relied on an earlier Supreme Court decision that found that a police department, for example, could be found to be deliberately indifferent to needed training if it sent out officers to apprehend felons without telling them under what circumstances they can use deadly force.

But Thomas wrote that prosecutors, who must be licensed attorneys, are a different kind of public employee than police officers, who without proper training might not have any idea about the legal restrictions on use of force. Instead, lawyers are educated and are required by law to know about their ethical obligations, Thomas noted.

"We do not assume that prosecutors will always make correct Brady decisions or that guidance regarding specific Brady questions would not assist prosecutors," Thomas wrote. "But showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability."
How is turning over exculpatory evidence a "difficult decision"?


  1. You must not practice criminal law otherwise you would know that it is VERY HARD for prosecutors to give up exculpatory material notwithstanding Brady.

  2. You are of course right that I don't practice crim law.

    But I don't think that sense of "difficult decision," comparable to whether it's a difficult decision on my part not to rob the bank, is really the proper legal test here!

  3. Ok, my naive little Anderson. Lawyers who practice both criminal law and civil law are aware of the unfortunate fact that there are two completely different set of rules that apply and I am not talking about the Criminal Rules of Procedure vs the Civil Rules of Procedure. The basic difference is that there is an unspoken rule that criminals are to be fucked over at every turn. As someone who lives in Jackson, I sometimes think this rule is not entirely meritless. Intellectually, however, it sucks.

  4. I know that's how it works, but I don't think the U.S. Supreme Court should be ratifying that, as Clarence Thomas and his pals have apparently decided to do.