A petition for cert has been filed by UC Irvine Dean Erwin Chemerinsky to argue the case against Orleans Parish District Attorney Harry Connick that, if one is to believe the majority in Thompson v. Connick, would satisfy the absurd demand that a defendant who spent years, decades, in prison has no municipal recourse unless he can show a municipal policy or custom of such unconstitutional conduct.  The message of Thompson is that one is not enough.

Here, Earl Truvia and Gregory Bright spent 28 years in prison because of a flagrant Brady violation coming out of the office of, Ta Da, Harry Connick.  They had their violation, Thompson’s violation, and amassed a record of others, including a former prosecutor who flipped on his old office who spilled the beans that no Brady would be disclosed. So?  Summary judgment against them, affirmed by the 5th Circuit.

What would it take to meet the Monell requirements to hold a municipality liable?

The New York Times offers an editorial in support of the Supreme Court taking the case, and more importantly, holding prosecutors’ offices liable.

When prosecutors cheat and lie repeatedly to win convictions, should their office be held accountable?

When a man spends years, or decades, in prison as a result of such prosecutorial misconduct, should he be compensated?

These are not trick questions.

Perhaps not trick questions, but their answers are quite tricky. The individual prosecutor enjoys absolute immunity for the performance of his prosecutorial “duty,” whether incompetent or malevolent. Some states provide for statutory compensation for the wrongfully convicted; others do not. For those that do not, the hurdles for compensation are essentially insurmountable.

But the issue isn’t just compensation for a couple of guys who lost 28 years of their life. The issue goes deeper, as in how to provide incentives to prosecutors to comply with Brady, the disclosure of exculpatory material to the defense.  In other words, it’s not just about compensating those who suffered past violations of their constitutional rights, but preventing ongoing and future violations.

A right without a remedy is no right at all.  But even if there is a remedy, it has to be meaningful, available and provide the incentive to those who are responsible for the violation to respect constitutional rights to be effective.  What are the chances that payment out of the municipal larder will make an individual prosecutor, Henry Julien in the case of Truvia and Bright, take personal responsibility for adhering to the law?

Chemerinsky notes in the cert petition that 9th Circuit Chief Judge Alex Kozinski wrote in his dissent from denial of en banc review in United States v. Olson that Brady violations have reached epidemic proportions.  Rather than feel the sting of this slap and take its admonition to heart, prosecutors have reacted by smearing Judge Kozinski as criminal lover and dismissed his criticism.  Prove it, they cried.

The reason they can do this is that Brady violations, by their nature and Wild Bill Douglas’ joke of offering the sweetest carrot possible, but holding it always out of reach, almost always defy detection.  The cops know it. The prosecutors know it. The defense and the defendant have no idea whether Brady material exists. Justice Douglas left it in the honorable hands of prosecutors, trusting them to do the right thing.

To the individual prosecutor, the incentive system works this way: disclose Brady and take a chance of losing the case. Conceal Brady and risk nothing. If it subsequently is revealed that Brady was concealed, the defendant would at best get a new trial, where he would have all the information available that the law says he should have had in the first place. There is no institutional downside beyond the expense of resources to retry the case.

And as for the prosecutor who failed to disclose Brady, there are no substantive repercussions at all. It’s possible, in the rare event that he’s named, he will suffer some personal hurt, though it hasn’t hurt Nancy Grace too badly. But there will be no loss of license, no monetary damages, no imprisonment, nothing.

The incentive system is clear: better to conceal Brady than disclose it, and the only incentive for a prosecutor to be honorable is personal integrity.  As incentives go, personal integrity has never been a particularly strong one.

The justification for maintaining immunity for prosecutors is twofold: that we don’t want them to fear repercussions in the performance of their duty, so that they’re reluctant to fight hard (but fair) for fear of personal liability.  The second is that allowing suit would “open the floodgates” to a hundred thousand frivolous lawsuits by prisoners, time-consuming and expensive fishing expeditions that would tie up the courts and prosecutors’ offices, and thereby prevent them from doing their job.

The first of these rationales is merely the flip side of Justice Douglas’ paean to personal integrity. If prosecutors are so righteous that they can be entrusted with honorably revealing information and evidence that will aid the defense and potentially undermine their own case, then they should similarly be trustworthy enough to do their job in the face of the threat of civil liability.  If we are prepared to trust prosecutors, then they should be trusted at their own risk rather than at the defendant’s risk.

The “floodgates” rationale is the more pernicious justification, a theoretical travesty that has never come to pass. Already, federal district courts are “deluged” with silly, frivolous § 1983 actions, and yet they’ve managed to vet them without breaking a sweat. When it comes to Brady, nearly impossible to find out about absent someone spilling the beans or an absurdly fortuitous event, like stumbling upon a witness statement or file hidden in some dusty box or behind the seat of some cop’s car, the number of likely viable actions is incredibly small. The argument has theoretical appeal, but it’s a myth. The courts can handle it.

One of two possible incentives will drive prosecutors to disclose Brady, and they are ironically the same as the incentives that will prevent people from engaging in crime.  Either the likelihood of getting caught is high, which will never be the case with Brady, or the sanctions for getting caught will be severe, meaning that they will have meaningful personal impact on prosecutors.

The Supreme Court should, obviously, grant cert in Truvia and Bright, as the 5th Circuits affirmance of the dismissal of their cause makes Thompson v. Connick even more of a joke than it was at the time it was decided. But this is still nibbling around the edges of the Brady problem.

Until prosecutors are held personally accountable for concealing Brady, nothing will change. And that won’t happen as long as they’re immune from liability for their incompetence or malevolence.