Kopf: Remembering John Thompson, Thinking About Brady and Giglio

Our mean-ass host, in a recent tweet, wrote: “John Thompson will suck your trust from the system but give it back in humanity. He was the real deal.”

Pictured below is that man. He recently died of a heart attack after serving 14 years on death row but, happily, Thompson was a free man when he passed.

Thompson’s demise prompts me to write this post regarding the obligation of prosecutors to turn over to the defense exculpatory information. His death also serves to remind judges like me that we need to avoid serving as potted plants.

Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.

Now let us return to Mr. Thompson’s case. Radley Balko’s piece in the Washington Post, entitled John Thompson, an exoneree and relentless voice for criminal-justice reform, has died, should be read in its entirety, but these four quoted excerpts (numbered by me for clarity) are sufficient for purposes of background:

  1. Thompson served 18 years in prison, 14 of them on death row. In 1985, he was convicted of two separate crimes, a murder and an armed robbery. He was innocent of both. He was convicted of the armed robbery first. He had a solid alibi for the murder, but to give it, he would have had to take the stand. That would have opened the door for prosecutors to tell the jury about the armed-robbery conviction. So he didn’t. The jury convicted him and sentenced him to die.
  2. By 1999, Thompson had outlasted seven death warrants. But he was running out of time. With his date in the execution chamber just a few weeks away, and his appeals exhausted, a defense investigator stumbled onto a piece of microfiche while pouring through records at a city police station. The film contained records of a blood test that was done on a piece of clothing from one of the victims of the armed robbery. The victim said the blood was from the man who attacked them. The test results excluded Thompson as the source of the blood. The armed-robbery conviction was tossed, and Thompson’s execution was delayed. He was tried again for the murder and this time was able to tell the jury about his alibi. The jury took a little over a half hour to acquit him.
  3. One of the two prosecutors would later confess on his deathbed to another prosecutor that he and his colleague had hidden the blood evidence. The prosecutor who heard the confession then waited five years before revealing it. To his credit, he then helped work for Thompson’s release. To this day, he is the only prosecutor to receive any discipline for Thompson’s wrongful convictions.
  4. Thompson started an organization called Resurrection After Exoneration, headquartered in the Treme neighborhood in New Orleans. The organization helps recently-released exonerees build a support network among family and friends. It also provides housing and counseling, and offers job training in fields such as screen printing and barbering. When [Balko] was there in 2013, portraits of the people the organization helped lined the walls, serving as both a record of the success of Thompson’s vision and a moving indictment of the system he was fighting. . . .When Glenn Ford’s conviction was overturned and he was released from a Louisiana prison after 30 years on death row, he was battling advanced-stage lung cancer. He had nowhere to go. Thompson’s group took him in. Ford told Al-Jazeera a couple of years ago that without Thompson, he’d “probably be under a bridge somewhere.”

But Thompson was also understandably angry.[i] While he couldn’t sue the prosecutors individually because of the doctrine of absolute prosecutorial immunity created by the Supreme Court, he did sue the Parish of Orleans (essentially New Orleans) through the device of suing the District Attorney (Harry Connick[ii]) in the DA’s official capacity.

Thompson used something called a Monell theory.  If the elements of that theory were proved, such a claim allowed for the entry of a money judgment against the municipality because of the actions of the DA serving as policy maker for the Parish. Condensed and summarized, Thompson argued that the failure of the New Orleans District Attorney to train the line prosecutors to comply with Brady meant that the Parish was in essence countenancing violations of Brady. A jury agreed on the failure-to-train claim and he won $14 million.[iii]

However, the Supreme Court thought otherwise. It held that New Orleans could not be held liable under a Monell theory for a failure to train the prosecutors to comply with their obligations under Brady. Essentially, the Court ruled that lawyers are presumed to know the law, including the rule in Brady, and policy makers (like the District Attorney) are entitled to rely upon that assumption until confronted with evidence to the contrary. One instance was not enough.

Thompson’s case is a horror story. But, is it a “one-off” case?” Judge Alex Kozinski believes there is an “epidemic” of Brady violations. This is true even though this brilliant and outspoken judge also believes that “most prosecutors are fair and honest.”[iv]

What do I think? First, I don’t think there is anything like an “epidemic” in the federal courts, although I must admit that my vantage point is limited. Second, I’m a realist. Things like prosecutorial immunity are not going away. So, we feds can only make the best of what is left in our arsenal of coercive sanctions. At least in the federal system, the best we have left is something like this:

  • In the District of Nebraska, and as suggested by Judge Kozinski, we already issue mandatory Brady/Giglio disclosure orders, the violation of which would clearly justify discipline. More specifically, federal judges should use as a disciplinary gauge, and require federal prosecutors to scrupulously comply with, part 9-5.001 (Policy Regarding Disclosure of Exculpatory and Impeachment Information) and part 9-5.100 (“Giglio Policy”) of the US Attorneys’ Manual. That Manual is a full and fair exposition of the law. Indeed, it explicitly “errs” on the side of disclosure if there is a question.[v] The Manual would serve as an excellent policy model for state prosecutors to adopt.
  • Federal judges should not hesitate to employ their independent[vi] disciplinary authority to reprimand, suspend, or disbar prosecutors who violate our orders and the requirements of the Manual. See, e.g., NEGenR 1.7(b) & NEGenR 1.8(g). These judges should not wait for or depend upon state disciplinary authorities to act. Nor should they wait for DOJ’s Office of Professional Responsibility to awake. In short, we federal judges are not and should not serve as potted plants, particularly when it comes to Brady/Giglio violators.[vii]

Mr. Thompson is dead. He should not be forgotten.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] Thompson was particularly angry at Bill and Hillary Clinton. As Balko observed in the article cited in the text: “In 2015, he lashed out at Bill and Hillary Clinton for donning the role of reformers without ever really owning up to their contribution to mass incarceration. (Bill Clinton fought for and signed into law the Antiterrorism and Effective Death Penalty Act, which makes it much more difficult for death row inmates to have their cases heard in federal court.)”

[ii] Why did it have to be him?

[iii] Thompson also argued that he proved deliberate indifference by “direct evidence of [a] policymaker fault.” In support, Thompson contended that District Attorney Connick created a “culture of indifference” in the prosecutor’s office. The jury rejected this claim, and Thompson did not challenge that finding before the Supreme Court.

[iv] Which is it, Alex?

[v] Federal prosecutors should consider providing a searchable digital file with a table of contents containing Rule 16, Jencks Act and the Brady/Giglio material in the prosecutor’s hands and similar material in the hands of the investigator. See Hillary Oran, Does Brady Have Byte? Adapting Constitutional Disclosure for the Digital Age, 50:1 Columbia Journal of Law and Social Problems 97 (2016).  With high-speed scanners and easy to use and inexpensive software that can be employed to create an index, the task of providing this file would not be overly burdensome to the prosecution, yet would be extremely helpful in complying with requirements of Rule 16 and the Jencks Act, as well as avoiding unintended violations of Brady and Giglio.

[vi] Theard v. United States, 354 US 278, 281 (1957) (“While a lawyer is admitted into a federal court by way of a state court, he is not automatically sent out of the federal court by the same route. The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers, among whom, in the present context, lawyers are included.).

[vii] As an aside, there are various ways to skin a cat. See, e.g., Up in Smoke, Nebraska Style, Fault Lines (September 18, 2015).

9 thoughts on “Kopf: Remembering John Thompson, Thinking About Brady and Giglio

  1. Pingback: Judge Kopf ruminates on Brady and Giglio -- Worth-The-Read — Court-Martial Trial Practice Blog — October 11, 2017

  2. PseudonymousKid

    Dear Judge Kopf,

    You can swing your giant club with “inherent authority” etched onto it all you want, but you won’t whack a mole you can’t see. The problem is the violations evade detection, not that lawyers aren’t sufficiently terrified of the words “show cause.” A few public executions of prosecutors won’t be enough.

    A Brady violation almost killed Mr. Thompson. Brady violations put people in cages who don’t belong there. Epidemic or not, violations occur and are terrible. Open discovery and other reforms like those proposed by Judge Kozinski need to happen.

    Thompson was right to point out the hypocrisy of the politicians. Tough on crime is bullshit but it’s ubiquitous bullshit.


    1. Richard Kopf


      I, too, favor open file discovery. See, for example, this post in Hercules, “A Forrest Gump solution to the ‘epidemic’ of Brady violations and other similar horrors.” All the best.


      1. PseudonymousKid

        Dear Judge Kopf,

        Great to hear that there are jurists who are actively thinking and talking about these issues. Sad to hear that so much thought has yet gone to waste.

        I have yet to hear good arguments against open file discovery. Like you said, why is open discovery a bad idea?


  3. billmcwilliams

    This happened to me. I was young, naive, honest, and scared. My lawyer was playing for the other team and sold me out.

    The person who assisted the Miss. Bureau of Narcotics in framing me passed away at age 56, but the Felony I was coerced into pleading has hurt me in many ways the past 40 years – and I’m sure the MBN agent(s) are now living off a nice pension with good benefits.

  4. Mario Machado

    Judge Kopf,

    As you pointed out in your SJ post about CDLs, we don’t hate our adversaries. We just don’t trust them.

    I would like to think -no, hope – that some of the tough yet “justice” minded adversaries I’ve come across and have yet to face would never act so cavalier with human life like Thompson’s prosecutors. But reality is sobering.

    There really isn’t a version of hell in the material world to provide a significant deterrent. Ironically, it was the perceived possibility of eternal hellfire that may have prompted the late disclosure for Thompson.

    Amplifying the possible trail of human suffering that prosecutors like Thompson’s may have caused: how many other defendants ended up serving needless 5, 10, 20 year sentences because of their practices?

    If they can hide evidence in a capital case for years until the last rites, what are the chances they’ll think twice about it with lesser charges? All of it despite Brady and Giglio.

    Thanks for this, Judge. And pardon the extra lugubrious tone.


  5. Richard Kopf


    You ask: If they can hide evidence in a capital case for years until the last rites, what are the chances they’ll think twice about it with lesser charges? I respond: What is the value of being able to look at yourself in the mirror?

    All the best.


    1. Mario Machado


      I guess that for Thompson’s prosecutor, looking in the mirror produced diminishing returns over the years. As in, what’s the point anymore?

      But I can only speculate.


      1. Richard Kopf


        Good point. I wish I had a good answer. All the best.


        PS As I age, I can also attest to the law of diminishing returns when it comes to gazing into mirrors. Who is that old bastard?

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