Much as the overhyped condemnation of qualified immunity has given rise to a great deal of misunderstanding of why it deserves condemnation, but not what the limits of its condemnation should be, add Monell liability to the mix and the confusion goes wild. In most cases, any award or settlement is paid by the municipality, even though a § 1983 case is brought against the individual who committed the constitutional rights violation. It’s not that the municipality is obliged to pay, as it’s not a party to the action, but that it chooses to indemnify its employees or, it’s feared, it wouldn’t have any employees.

When it comes to a lying prosecutor, that creates a dilemma, as prosecutors enjoy absolute immunity in the performance of their prosecutorial function. When it comes to a lying prosecutor in the office of notorious Williamson County, Texas district attorney Ken Anderson, of Michael Morton notoriety, the situation is bad enough to make your head explode.

On June 23, 1993, a prosecutor noted in the case file that during the May 18 interview the victim made statements contradicting her prior identification of Mansfield. Specifically, prosecutors noted that the victim would “be difficult to sponsor in Court. She told me she does not remember what happened! . . . Spent 2 hours [with] this witness — will be nigh impossible to sponsor her in court. At one point, told me nothing happened, then says little boy might have done it ([Mansfield]’s son).”

The trial court ordered Brady disclosure, but four days before trial, the defense remained unaware that the primary witness against the defendant was worthless. Instead, the prosecutor bluffed the defense into a plea.

The prosecutors did not tell Mansfield and his counsel about the victim’s contradictory statements during plea bargaining. Instead, four days before trial, facing the trigger of an extant Brady order, the prosecutors stated that the victim would be a strong witness at trial and that they had a doctor’s statement and physical evidence corroborating the victim’s identification of Mansfield. They did not. The prosecutors added that the plea offer was revocable, and that Mansfield faced a sentence ranging from 99 years to life if convicted of all the charges of his indictment. With this Hobson’s choice, Mansfield accepted the offer, pleading guilty to the lesser charge of indecency with a child four days prior to his scheduled criminal trial in 1993, and spent 120 days in county jail, ten years on probation, and registered as a sex offender.

The conviction was vacated in 2016 after the lie was discovered, and Mansfield sued the county under the Monell doctrine arguing that the district attorney’s policy of closed file discovery was to blame, thereby making the county liable.

Mansfield alleged that both his Brady and due process claims were enabled by the county’s closed-file policy which prevented his attorneys from examining evidence, leading him to involuntarily plead guilty. ***

Mansfield’s argument for county liability goes as follows. In 1993, the District Attorney’s office was relatively small, with only six prosecutors. The prosecutors had a reputation for not trying cases they could lose. Anderson, as the District Attorney, set the closed-file policy. Closed-file policies enable prosecutors to withhold information until trial when the obligations of Brady are triggered. Alternatively, under open-file policies prosecutors disclose relevant information to defense attorneys with only limited exceptions. District Attorneys can also decline to adopt either policy, instead leaving the timing and scope of disclosure to the individual prosecutor’s discretion.

The fact that this closed-file policy was chosen by Anderson, whose misconduct was legend, exacerbated the problem. The Fifth Circuit rejected this argument.

We cannot conclude that the closed-file policy caused the prosecutors to lie. Mansfield argues that the closed-file policy enabled the prosecutors to lie, but a system that fails to prevent lying is not necessarily one that causes lying. Mansfield thus failed to create a triable issue on the causal connection demanded by Monell.

The court then waxes philosophic about the root cause of prosecutors lying.

Why the prosecutors chose to lie is elusive. One might infer that the culture within the small office, continuing from the days of Morton, or personal ambition led the prosecutors to secure a guilty plea at any cost in a high priority case involving a little girl as the victim. Mansfield urges that Anderson, taking a page from Morton, pressured his staff to obtain convictions—not dismiss cases after indictments. And, that the plea bargain was “unusually light” compared to the possible sentence attending a conviction at the very least suggests a determined effort to avoid trial and a likely acquittal.

While it’s true that any prosecutor can make a personal choice to be a liar, to be a disgrace, to dishonor the Constitution, for the sake of winning convictions, Judge Patrick Higginbotham’s  prosaic effort to avoid the obvious here falls short. Ken Anderson’s choice of a closed-file policy wasn’t accidental, but deliberate as it enabled lying prosecutors to lie with impunity, and prosecutors knew it, appreciated it and used it to lie their way into guilty pleas.

For Monell liability to be established, the Supreme Court held that it must be the “direct result” of the official policy. The circuit, noting that there was no Fourteenth Amendment right to exculpatory evidence in advance of accepting a plea bargain, held it was not.

Accepting that the closed-file policy enabled the prosecutors’ lies, it does not necessarily follow that it caused their misconduct. The prosecutors’ underlying motivations to lie and
misrepresent exculpatory evidence aside, without a direct causal link between the closed-file policy and the alleged constitutional violation, the demands of Monell are not met.

The “direct result” requirement of Monell does not require that the policy “caused” prosecutors to lie, which arguably is a personal, or personnel, choice. But that isn’t the same as a direct causal link. Anderson’s closed-file policy was deliberately chosen so as to prevent the defendant from knowing, until the witness physically took the stand, that the testimony would fail to prove the defendant’s guilt.

It was deliberate in that it not merely enabled a prosecutor to bluff his way through plea negotiations, but made certain that the defendant would never know the most salient fact necessary to make an informed decision. There could be no direct causal link between the concealment of Brady and the policy designed to conceal Brady, to deny the defendant the ability to make an informed choice because Anderson made his informed choice to make sure his prosecutors could lie with impunity. Rarely does a Monell claim succeed, but this was that rare case where it should.