Connick v. Thompson – Oral Argument – October 06, 2010

Media for Connick v. Thompson

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 1) in Connick v. Thompson
Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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John G. Roberts, Jr.:

We will hear argument next in Case 09-571, Connick v. Thompson.

Mr. Duncan.

S. Kyle Duncan:

Mr. Chief Justice, and may it please the Court:

This case asks when a district attorney’s office may be liable under section 1983 for inadequately training prosecutors.

The Petitioner, Orleans Parish District Attorney’s Office, was found liable for the terrible injuries caused to Mr. Thompson by a Brady violation on the theory the office was deliberately indifferent to Brady training, this despite the fact that there was proved no pattern of previous misconduct by office prosecutors.

The district court exempted this case from the ordinary pattern requirement by making a flawed analogy to a hypothetical in this Court’s City of Canton opinion.

There, the Court suggested that a city may be liable, absent a pattern, if it fails to inform police officers of the basic constitutional standard for deadly force.

Extending that hypothetical to this case was error.

It misunderstood Canton’s distinction between a single incident and pattern liability, nullifying Canton’s stringent standards of fault and causation.

Ruth Bader Ginsburg:

Isn’t there something in between?

Because in Canton, the hypothetical was one rookie police officer.

Here, it wasn’t one rogue prosecutor.

There were four prosecutors who knew of this blood evidence and there were multiple opportunities for them to disclose it, but four of them apparently thought it was okay under Brady to keep this quiet.

Now, if we were just talking about — what was his name, Deegan?

it would be a different case.

But we have the three other prosecutors.

So I think it’s questionable to characterize this as a single incident.

S. Kyle Duncan:

I understand your question, Justice Ginsburg.

Our argument does not turn on whether it was one or three or four prosecutors.

What our argument does turn on is that the theory from the Canton hypothetical, which does not require a pattern, was clearly at issue in this case.

The district court analogized to Canton in order to allow the jury to find liability absent a pattern.

There is no question that, whether it was one or four prosecutors, this is a single incident of a Brady violation.

Sonia Sotomayor:

Counsel, this is a single incident, and Canton said if you know that a tort is likely to happen without training then one incident is enough.

Every prosecutor knows that there can be Brady violations if people are not taught what Brady means, because it’s not self-evident in every situation.

Correct?

S. Kyle Duncan:

That’s true, Justice Sotomayor.

Yes.

Sonia Sotomayor:

All right.

So if you know that rookie prosecutors — and most prosecutors’ offices are filled with young ADA’s who have just come out of law school.

If you know that they are going to meet some situations where the answer is not intuitively known, like that if you get a lab report, you should turn it over, don’t you have an obligation, isn’t that what the jury said, to train them to turn over lab reports?

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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Sonia Sotomayor:

Now, I know you claim you had that policy.

S. Kyle Duncan:

Correct.

Sonia Sotomayor:

We can talk later about whether or not there was sufficient evidence for the jury to disbelieve that you had that policy or not.

That’s a sufficiency of the evidence question.

But if you know that lab reports have to be turned over, you’ve conceded it’s a Brady violation not to do it, and there was sufficient — and you had no policy — I know you are disputing that — and you had no policy of turning it over, why aren’t you responsible for a Canton-like violation?

S. Kyle Duncan:

The question is under the Brady scenario, which side of the Canton line does it fall on?

Does it fall on the single incident line or the pattern line?

We say it falls on the pattern line.

Ruth Bader Ginsburg:

But life doesn’t always come in just two categories, and my suggestion to you is this doesn’t fit into this single rookie.

You have — if you have four prosecutors who are not turning over this evidence, then it seems like to me it’s kind of a culture in the office that we don’t turn over — either we don’t understand Brady, because one suggestion was — well, having the blood sample will show you — you would have to have the blood sample from Thompson to have it mean anything.

So there was misunderstanding about that.

But what struck me was that to shoehorn this into a single incident, it doesn’t fit.

So we have a situation maybe that hasn’t — that we haven’t directly confronted before.

S. Kyle Duncan:

Well, I think the Court has in Canton, Your Honor.

Let me answer it this way: If we pay close attention to the function of the single incident hypothetical in Canton, I think it illuminates the kind of notice, the kind of fault, and the kind of causation that needs to arise out of a general situation.

So looking carefully, what Canton said is: A policymaker who fails to give police officers the basic constitutional standard for deadly force, which they are not equipped to know in the beginning, and without which–

Ruth Bader Ginsburg:

Can you tell me — I think I have a copy.

S. Kyle Duncan:

–I’m sorry, Your Honor.

Yes.

This is — this is — I am referring to the — the basic Canton standard is at 390, page 390 of the Canton opinion.

And specifically, the footnote is footnote 10, that discusses the two possibilities, the no-pattern and the pattern possibilities.

So I’m reading from Canton at footnote 10.

City policymakers know — “For example”, the Court said,

“city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. “

“The city has armed its officers with firearms, in part to allow them to accomplish this task. “

“Thus, the need to train officers in the constitutional limitations on the use of deadly force can be said to be so obvious that the failure to do so is deliberate indifference. “

Now, what we have there, as Justice O’Connor’s concurrence in that case and then later the Court’s opinion in Bryan County explains, you have a failure to inform city personnel of the basic standard without which they have no hope of doing their job in a constitutional manner.

So you put your employees in a situation of impossibility and when a deadly force violation occurs, what you have–

Antonin Scalia:

These are people who haven’t gone to law school, right?

S. Kyle Duncan:

–That’s correct.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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Antonin Scalia:

And do not know that you cannot apply deadly force in most circumstances?

S. Kyle Duncan:

They’ve got no background equipment to know what the constitutional standard is.

And so that satisfies, in a general situation–

Antonin Scalia:

If you were giving guns to lawyers, it might have been different.

[Laughter]

S. Kyle Duncan:

–It could be, Your Honor.

Here, you’re giving–

Antonin Scalia:

Depending on the law school they went to or what?

[Laughter]

S. Kyle Duncan:

–It could be.

However, what you are giving to lawyers here is the task of analyzing legal judgment.

Can lawyers’ judgments go astray, Justice Sotomayor?

Absolutely.

But–

Sonia Sotomayor:

Now what you are suggesting is that for certainty you know that a lawyer’s judgment is going to go astray because a particular area of law is that complicated.

Your people disagreed — some of your people disagreed or didn’t know whether turning over a lab report was a — failure to turn over a lab report when you didn’t know a defendant’s blood type was a Brady violation.

That has been conceded in this case, so I accept as a working proposition that they should have known that.

What you are suggesting is you get a pass because, even though you know that there’s an area of law that a young lawyer is not going to be able to figure out on their own, you fail to train them and you’re okay.

S. Kyle Duncan:

–Well–

Sonia Sotomayor:

That that is not the Canton example.

S. Kyle Duncan:

–That is not the Canton example, Your Honor.

What we have here–

Sonia Sotomayor:

That’s what you are saying.

S. Kyle Duncan:

–No, that’s not what we are saying.

We are not saying that the policymaker inevitably knows, my prosecutors are going to make this mistake, and so I need to train on it; I don’t care about training on it.

Samuel A. Alito, Jr.:

Can we just — can we clear something up?

S. Kyle Duncan:

Yes, sir.

Samuel A. Alito, Jr.:

Are you accepting the proposition that Brady always requires that lab reports be turned over?

S. Kyle Duncan:

No, Your Honor.

What we concede in this case is–

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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Samuel A. Alito, Jr.:

I know you concede that there was a Brady violation here, but in answer to some of the questions it seems to me that you were possibly — or at least you did not express an opinion on the suggestion that it is always a violation of Brady to fail to turn over a lab report.

S. Kyle Duncan:

–I’m not aware that it would always be a violation of Brady.

However, of course, we have evidence in this case that the — uncontradicted evidence, that the office policy was to turn over all scientific reports.

But–

Elena Kagan:

Mr. Duncan, could I give you a hypothetical–

S. Kyle Duncan:

–Sure.

Elena Kagan:

–just to test how strong your position is here.

So let’s say that there is a new D.A. comes to town and he says, there’s going to be one attorney per case from now on and it will be a random assignment system.

So sometimes important cases will be tried by experienced attorneys, but sometimes they’ll be tried by people right out of law school.

And there will be no Brady supervision at all, no Brady training.

And there is a closed file system, that we only turn over what we are required to turn over and not anything else.

And in addition to that, if I, the D.A., find that you have turned over things that you are not required to turn over, that will be taken into account in your yearly review for promotion purposes, for salary purposes, et cetera.

That will be very severely frowned upon.

So the new D.A.–

S. Kyle Duncan:

I’m sorry?

Repeat the last part again, the “severely frowned upon” part?

Elena Kagan:

–If you turn over anything that you didn’t have to.

Okay?

S. Kyle Duncan:

I understand.

Elena Kagan:

If you give any material that you are not required to do by law.

And so he puts into place this whole system and says, okay, go to it.

And what happens is that there are Brady violations.

And there is a Brady violation in a capital case and the person sits on death row, or the person is executed, whichever, and there is a claim brought.

Is that claim not a good claim?

S. Kyle Duncan:

If there is a pattern of demonstrated–

Elena Kagan:

There is not a pattern, because he just came to town and he just, you know, instituted all these policies, and this is the first Brady violation.

S. Kyle Duncan:

–Not for the first Brady violation, Justice Kagan.

But in your hypothetical, you noted a policy of actually assigning inexperienced prosecutors randomly to perhaps high-profile cases.

If that were the facts the jury, as they could have in this case, could have found that an official policy actually caused the violation.

But they didn’t find it in this case.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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S. Kyle Duncan:

So the hypo leaves open that possibility.

Elena Kagan:

But the failure to train or supervise in any way and setting up a structural system that’s pretty much guaranteed to produce Brady violations, that would not be enough?

In other words, even if the jury said yes, you are liable under that second theory — not the policy theory, but the failure to train and supervise theory — that would have to be rejected?

S. Kyle Duncan:

No — exactly, Your Honor.

No liability there, because it doesn’t meet the stringent fault and causation standards of Canton.

This goes back to–

Stephen G. Breyer:

How is that so?

I’ve read the instruction that the court gave and it seems to me the instruction the Court gave was word-for-word taken from Canton.

And when I read the question that you presented in your Petitioner’s brief — in the petition for cert, I thought what this case was about was an instance where there was only — it was conceded that there was only one such instance.

But then when I read that your second reiteration of the question, which is a little bit different, and read the briefs, I thought no, there are four other ones.

So what you are really asking us to do is to decide in the case of perfect instructions whether the evidence supports them.

I didn’t think I was getting into that and, frankly, the brief clearly supports it.

Others could disagree.

But why are we getting into that business in this Court?

S. Kyle Duncan:

–We are not asking you to.

Stephen G. Breyer:

All right.

Then what is it you are asking?

Is there something in the instruction that is wrong?

What?

S. Kyle Duncan:

Yes, the instructions reflect that the single incident theory–

Stephen G. Breyer:

Sorry.

Where — I’m reading the instruction, I have it here.

What is it?

I’m not saying you are wrong.

I’m just saying, what in the words stated are wrong and where is the request that they be stated differently, that I should look at that, and that they weren’t.

Okay.

S. Kyle Duncan:

–Yes, Justice Breyer.

Let me help you with that.

The — the, at the Joint Appendix page 828 we have the instructions on deliberate indifference.

John G. Roberts, Jr.:

I’m sorry.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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John G. Roberts, Jr.:

What’s the page number.

S. Kyle Duncan:

828.

John G. Roberts, Jr.:

828.

S. Kyle Duncan:

Joint Appendix 828.

There are the instructions on deliberate indifference.

Let me start here, Justice Breyer.

These instructions are taken from the Second Circuit’s Walker decision, which was the first court that I am aware of to allow for the possibility of single incident liability in a Brady situation.

The second instruction there allows a choice.

It allows a choice for the jury to find that a single incident situation — I’m sorry, that a situation involving a Brady decision could arise and be a basis–

Stephen G. Breyer:

To the words — I mean, it looked to me like the words on page 828 are pretty similar to my copy of what he actually said.

So what are the words on page 828 that you think he should have said that he didn’t say?

S. Kyle Duncan:

“The situation involved a difficult choice or one that prosecutor s had a history of mishandling. “

Stephen G. Breyer:

What he says here is

“The situation involved a difficult choice or one that the prosecutors had a history of mishandling, such that additional training, supervision or monitoring was clearly needed. “

So it looks to me like, unless I’m reading the wrong page, which I’ve sometimes done out of my memo here.

It looks to me like he gave those words.

S. Kyle Duncan:

That is the — I’m sorry.

Then I misunderstood your question.

That’s not the actual instruction.

Stephen G. Breyer:

I’m saying what is it that you asked the judge to do that he didn’t do or that you asked him not to do that he did do?

That’s what happens.

That’s the way you object to an instruction.

S. Kyle Duncan:

I understand, Your Honor.

Stephen G. Breyer:

Okay.

So what is that?

S. Kyle Duncan:

I misunderstood.

I was reading where I thought the single incident theory was posed in the jury instructions.

Antonin Scalia:

I thought he asked that.

So I was glad to see that.

Thank you.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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S. Kyle Duncan:

The Petitioner specifically asked that an instruction be given that required a pattern of similar–

Stephen G. Breyer:

I want you to point out in the record the words that were said to the district court saying

“judge, I want you to say this. “

and then the judge didn’t do it.

S. Kyle Duncan:

–It is instruction number 14.

Stephen G. Breyer:

Which is where?

S. Kyle Duncan:

The proposed instruction.

I regret to say I don’t believe that is in the Joint Appendix, Your Honor.

And it is also–

Stephen G. Breyer:

Then I think we take it as you saying that you not objecting to the instruction.

S. Kyle Duncan:

–No, Your Honor.

Stephen G. Breyer:

I mean, your whole brief is objecting to the instruction and you didn’t include the objection?

S. Kyle Duncan:

No, Your Honor.

The argument is not about the specific jury instruction.

It’s about the legal theory.

What it’s about–

Stephen G. Breyer:

Wait, wait.

If you don’t object to the instruction, then we’re back to what I’m saying, that what you are objecting to is you don’t think the evidence was such that, given that instruction, the jury could find guilt.

And that’s what I thought this case wasn’t about to begin with, and there are three other instances.

So I don’t see why, given this instruction, the jury couldn’t find guilt.

S. Kyle Duncan:

–What our main complaint is, is about the failure of the district court to grant a motion for summary judgment and a judgment as a matter of law on the basis that a failure-to-train theory under these circumstances does not permit the single — the single–

Sonia Sotomayor:

I understood — and maybe I’m confused — that you were arguing that there was no set of circumstances in which a prosecutor could be handled — could be liable on a theory of failure to train for one incident.

S. Kyle Duncan:

–That’s correct.

Sonia Sotomayor:

That that was the petition.

S. Kyle Duncan:

Correct.

Sonia Sotomayor:

So it doesn’t matter what the facts are.

The facts that Justice Kagan gave you would never constitute an actionable claim against a prosecutor; is that your position in this case?

S. Kyle Duncan:

That’s — under the Canton hypothetical, yes, it would have to fall on the pattern side because the general Brady situation is unlike the single-incident–

Sonia Sotomayor:

So what you–

Elena Kagan:

Could I add to my hypothetical, then?

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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S. Kyle Duncan:

–Yes, Your Honor.

Elena Kagan:

Suppose that this new district attorney said — every day he came into the office and he said: I think Brady is just crazy, and I think it’s just the worst decision that the Supreme Court has ever issued; and as long as you don’t get caught, anything you do is okay by me.

S. Kyle Duncan:

That sounds like a policy to me, Your Honor.

That sounds like a policy, an actionable policy on the part of the policymaker.

Elena Kagan:

It’s not a policy.

He’s just, you know, making his views known around the office.

S. Kyle Duncan:

Well, this Court has defined “policy” as a deliberate choice to embark on a course of action in Pembaur, which this Court accepted.

That sounds like a policy to me.

If it’s not a policy–

Elena Kagan:

Then the policy is just that you have to turn over what you have to turn over, nothing else, and if you turn over anything else you will get penalized for doing so?

That’s the policy?

S. Kyle Duncan:

–Well, then the policy is constitutional.

So what we would look to is are prosecutors failing to exercise their judgment properly pursuant to that policy?

And that falls very squarely within the second part of the Canton choices, which requires a pattern.

This case is about the alleged failure to remedy, to guide, to reinforce, the preexisting legal judgment that a prosecutor has by virtue of being a legal professional.

Ruth Bader Ginsburg:

Is that so?

I mean, you are assume that everyone who goes to law school takes a course in criminal procedure, and I think there are many law schools where they don’t even have such a course and others where most — I don’t know anywhere it’s compulsory to take a course in criminal procedure.

So you’re assuming that.

And of course, the time is running.

There is something I wanted to ask you about Brady which seems to me unlike others and why you would want special vigilance.

And that is, Miranda warnings, you know what was said; search and seizure you know what the police did.

But the problem with Brady — and this case illustrates it so well — is you don’t know.

If the prosecutors don’t do what they’re supposed to do, there is a very high risk, as there was in this case, that it will never come to light.

So, recognizing the legal obligation of the prosecutor and the temptation not to come out with Brady evidence because it doesn’t help the State’s case, shouldn’t there be extra vigilance when we are talking about a Brady claim?

S. Kyle Duncan:

Well, of course there should be vigilance.

But the question you pose, Justice Ginsburg, is whether the latency, the hiddenness, that characterizes Brady violations should change where we locate the Canton violation.

Should it be enough to put it into the single incident, so-obvious category, or still in the pattern category?

But Canton doesn’t indicate that the latency of a particular violation should — should turn on which category it goes into.

Instead, it’s the nature of the employee duties and the employees themselves and how that situation gives notice to a policymaker about when there are obvious training risks.

That’s what we are talking about.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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S. Kyle Duncan:

So to go back to the hypothetical, in Canton whether or not a deadly force situation is secret or not — of course it’s not.

But the office has failed not just to train, but to inform of the basic constitutional duty, without which those officers have no chance of fulfilling their duties.

And when they do a deadly force violation under those circumstances, the causal link will be very strong.

It will be strong enough to meet Canton.

And so there you have — there you have a situation where deliberate indifference and causation are met without the pattern.

But what — you do not have that in the situation of Brady compliance because, as — as everyone agrees Brady involves gray areas.

It is impossible to determine beforehand exactly why a Brady violation will occur, and what specific training measures would prevent it from occurring.

And what that means is, this falls plainly within what Canton said about the pattern situation.

Here’s what Canton said in the footnote 10 following onto the hypothetical.

“It could also be that the police in exercising their discretion so often violate constitutional rights that the need for further training must have been plainly obvious. “

That’s the situation we have posed by the Brady situation in general.

Stephen G. Breyer:

All right.

But look — he read the instructions.

They came right out of Canton; seems perfect.

Now you’re saying, well, whether they did or not, you cannot have an incident — you can’t have liability if there is only one incident.

And at that point, I say, gee, I don’t know; I mean, maybe it depends on what the incident is.

Maybe the incident involved somebody saying: Hey, Brady, what’s Brady?

Or somebody saying: What’s a criminal trial?

I mean that person needs training.

And — or — but I don’t even have to think of that here, because there were four incidents here.

And therefore, I don’t have to try to make up weird hypotheticals.

So where we have four instances and we have correct instructions, what’s the problem?

S. Kyle Duncan:

Your Honor, there weren’t four instances.

There was one Brady violation that possibly could have involved one to four prosecutors.

That’s one–

Stephen G. Breyer:

Okay.

We have — we have — all this case?

I thought that they had several instances in other cases.

S. Kyle Duncan:

–No.

No, Your Honor.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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Stephen G. Breyer:

All involved — in other words, there has never in this office been an instance of a Brady violation outside of this case.

S. Kyle Duncan:

No, Your Honor.

That’s not true.

Antonin Scalia:

Not — not before this case.

There was some–

Stephen G. Breyer:

After, that’s what it was.

Antonin Scalia:

–later, as far as we know.

S. Kyle Duncan:

There were some — there were four reported Brady violations before this case, in the decade leading, up, involving this office, that had nothing to do with the circumstances involved here.

Stephen G. Breyer:

Ah.

There were four Brady violations involving this office, okay?

S. Kyle Duncan:

Correct, out of tens of thousands of prosecutions.

Stephen G. Breyer:

All right.

So now we are talking about not one; we are talking about four–

S. Kyle Duncan:

We’re — but we’re–

Stephen G. Breyer:

–over many years, with tens of thousands of violations, correct?

S. Kyle Duncan:

–What was — the Fifth Circuit panel in this case affirmatively said Thompson did not even try to prove a pattern and did not prove a pattern of violations.

The Fifth Circuit panel said that.

Stephen G. Breyer:

This is helpful.

Thank you.

Anthony M. Kennedy:

On your instruction in–

S. Kyle Duncan:

Yes, sir.

Anthony M. Kennedy:

–at JA 28 second, would the instruction in your view have been proper, if the “or” had been replaced by an “and”, so

“The situation involved a difficult choice and one that prosecutors had a history of mishandling. “

S. Kyle Duncan:

That’s closer to what it should be, Justice Kennedy, yes, because that begins to capture the pattern requirement.

It’s not — it’s not the pattern instruction that was specifically put forth by the Petitioners in instruction number 15.

Anthony M. Kennedy:

Has there been any argument that you have waived your objection to the instructions?

S. Kyle Duncan:

Not by Petitioners — not by the Respondent in this case.

There’s no — there’s no — the question–

Ruth Bader Ginsburg:

Did you object to it?

To the charge?

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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S. Kyle Duncan:

–The — the charge?

Ruth Bader Ginsburg:

With the “or”, difficult choice, “or” one that prosecutors had a history of mishandling?

S. Kyle Duncan:

No, the Petitioners did not object to the — the specific formulation of that charge.

Immediately after that charge, though, they — they said, no, but we — we have to have a pattern instruction here.

In other words–

Anthony M. Kennedy:

In other words the pattern instruction was — it was — was rejected?

S. Kyle Duncan:

–It was rejected.

It was rejected twice, Your Honor, first in the formal jury instructions and then at the charge colloquy.

Sonia Sotomayor:

–But that wasn’t the question presented to us.

You didn’t present to us an issue of whether the jury instruction–

S. Kyle Duncan:

No, Your Honor.

Sonia Sotomayor:

–was wrong or not.

S. Kyle Duncan:

What we present is the legal theory on which this case was submitted, what got to the jury in the first place, should never have got to that legal theory at all.

Sonia Sotomayor:

You see, what I’m trying to figure out is whether your position is that under no circumstance, even the hypothetical that Justice Kagan set forth, could you be charged with a single incident Canton violation.

That is your — your theory?

S. Kyle Duncan:

With respect to the Brady situation.

Sonia Sotomayor:

The Brady situation.

S. Kyle Duncan:

Let me answer it this way.

What — what the Canton single incident hypo is talking about is failing to provide — uh — employees with basic tools, without which they absolutely have no chance of fulfilling their constitutional obligations.

If we — it’s difficult to imagine that situation for prosecutors.

It is — it’s conceivable that the district attorney’s office set up — sets up a structure where prosecutors have no chance of even knowing whether there is Brady evidence in the file.

If you have that situation, then it’s closer to the Canton single incident hypothetical, but not involving the exercise of legal judgment in particular cases.

We say no.

Sonia Sotomayor:

Well, how do you exercise legal judgment if you don’t even know what you are supposed to turn over?

That was Justice Ginsburg’s question.

S. Kyle Duncan:

That’s exactly — that’s my point.

That’s my point.

If you don’t — if you don’t even — in other words, if you don’t even have a police file, for instance, you can’t exercise your legal judgment if you don’t even know what — what the subject of your legal — the object of your legal judgment is.

But that’s not this case.

What we’re talking about here is the failure to remedy, reinforce, refine existing legal judgment that prosecutors have.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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John G. Roberts, Jr.:

Thank you, counsel.

S. Kyle Duncan:

If there are no further questions, thank you.

John G. Roberts, Jr.:

Mr. Cooney.

J. Gordon Cooney Jr.:

Mr. Chief Justice, and may it please the Court:

Although the Petitioner’s brief attempts to relitigate factual issues that were resolved against them by the jury, they have raised today only one question of law, and that is whether this Court should write into section 1983 a per se rule that the only way, the only way, a civil rights victim can ever establish the deliberate indifference of a district attorney is if he can prove a prior significant history of assistant prosecutors violating other citizens’ constitutional rights.

Antonin Scalia:

For — for Brady violations.

They limit the principle to Brady violations.

J. Gordon Cooney Jr.:

Yes, Your Honor.

And I would submit that–

Antonin Scalia:

Well, that’s a significant limitation, don’t you think?

J. Gordon Cooney Jr.:

–But I would submit, Your Honor, that this Court’s — that their requirement for proving deliberate indifference is, first, contrary to the teaching of this Court in Canton and subsequent cases.

It finds no place in the language of section 1983–

Anthony M. Kennedy:

But at the — but at the outset it seemed to me, and correct me if I’m wrong, that you misstate the theory on which you seek to — to have a reversal and that this is a failure-to-train case.

You didn’t mention that.

J. Gordon Cooney Jr.:

–Your Honor–

Anthony M. Kennedy:

This is a failure-to-train case, is it not?

J. Gordon Cooney Jr.:

–It is absolutely a deliberate indifference to the need to train and provide other protections–

Anthony M. Kennedy:

Well, I think that’s very important.

Samuel A. Alito, Jr.:

Yes, if you could — could you just say as succinctly as possible what you would tell assistant district attorneys if you were the district attorney for this jurisdiction, and you with the benefit of hindsight, having seen this case, what kind of — what would you tell them they should do with respect to Brady?

J. Gordon Cooney Jr.:

–Yes, Your Honor.

First of all I think Canton says you have to look at the specific circumstances.

And so I don’t think there is a one-size-fits-all way or message that has to be provided.

Samuel A. Alito, Jr.:

No, but you are training them, so: Now I want to tell you what you have to do under Brady.

J. Gordon Cooney Jr.:

Well, first–

Samuel A. Alito, Jr.:

What do you tell them?

J. Gordon Cooney Jr.:

–In this office, Your Honor, I think the first thing one has to confront is Mr. Connick’s testimony, and in fact the concession that the Petitioners made on pages 6 and 7 of their merits brief that the office started with what the brief described as:

“Connick’s disclosure policies were no mystery. “

“Turn over what the law required and nothing more. “

I mean, that would be–

John G. Roberts, Jr.:

Well, Justice Alito’s question was what you would tell the assistant D.A.’s.

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John G. Roberts, Jr.:

What’s your answer?

J. Gordon Cooney Jr.:

–And Mr. Chief Justice, with — if — first of all, I wouldn’t start with that rule.

But if I started with that rule it would be incumbent upon me–

Antonin Scalia:

Why wouldn’t you start with that rule?

The rule is perfectly lawful; my goodness.

J. Gordon Cooney Jr.:

–Your Honor, I’m not saying it’s an unlawful rule.

However, it requires a countervailing message.

And if you’re going to adopt–

Samuel A. Alito, Jr.:

I really would appreciate it if you’d get to my question.

Brady requires that exculpatory evidence be turned over.

Now, do you — do you think the assistant prosecutors didn’t even know that?

J. Gordon Cooney Jr.:

–Your Honor, I don’t know that.

It seems from the record in this case they thought that only something that screamed “exculpatory evidence” on its face needed to be turned over.

Samuel A. Alito, Jr.:

Okay.

Now, you phrase — you are the instructor.

You phrase the lesson that you think is required by Brady that has to be given to them.

J. Gordon Cooney Jr.:

I think at a minimum it has two pieces, Your Honor.

It has basic instruction about how to go about fulfilling the Brady obligation, and how do you go about looking through the file to make sure you know what’s there, making sure you have documents that are in the possession of the police.

Thinking in advance, as this Court talked about in the Agurs case, about what the evidence is going to be at trial and looking thoughtfully at that evidence to determine whether or not the evidence was favorable to the accused and needs to be produced.

John G. Roberts, Jr.:

Okay.

That’s your instruction on — on Brady.

Now, you are basing liability on — on this incident of failing to comply with Brady.

So you say they should have instructed on Brady.

What else should they have instructed on?

J. Gordon Cooney Jr.:

Well–

John G. Roberts, Jr.:

You are the — you’re the new D.A. and you are putting up — I need to instruct my people.

What — what do they instruct on?

I know they instruct on Brady under your view.

What else?

J. Gordon Cooney Jr.:

–I think the second thing that the — that the office really should do is to — to talk about the importance of safeguarding the innocent here, that our job is not just to secure convictions.

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John G. Roberts, Jr.:

Well, we are — we are looking at specifics where they are going to violate the Constitution.

I think that’s a good thing, to tell them they have an obligation as well to protect the innocent.

But we are worried about violations of our constitutional requirements.

We know Brady is one.

What is the next one?

What is day 2 in the course?

J. Gordon Cooney Jr.:

Well, Your Honor, I — I do think that there are other constitutional requirements involved.

Most of the hypotheticals, however, that have been brought before the Court as a parade of horribles aren’t actions by the district attorney.

Samuel A. Alito, Jr.:

I mean, with respect, I really don’t, as a young district — assistant district attorney, that you have told me anything that’s going to be really helpful to me other than, you know, follow the law, which you certainly should do, in dealing with my obligation to turn over physical evidence, which is what’s involved here.

J. Gordon Cooney Jr.:

Your Honor–

Samuel A. Alito, Jr.:

Or a lab report regarding physical evidence.

Now, suppose I have — I have several cases.

I have this case, where I have got blood — I have physical evidence, I have a blood test.

I have another case where all I had was physical evidence, but there has been no testing on it.

Now, do I have to turn over that physical evidence?

J. Gordon Cooney Jr.:

–In this case, there has been a stipulation by the district attorney’s office that you do.

And I think if you think about the evidence in this–

Samuel A. Alito, Jr.:

I have to turn over all physical evidence that’s in my possession?

J. Gordon Cooney Jr.:

–No, Your Honor.

Samuel A. Alito, Jr.:

Okay.

J. Gordon Cooney Jr.:

But here, the specific–

Samuel A. Alito, Jr.:

Now, what’s the instruction that you are going to give me to tell me where I’m going to draw that line?

J. Gordon Cooney Jr.:

–If you have physical evidence that, if tested, can establish the innocence of the person who is charged, you have to turn it over.

Samuel A. Alito, Jr.:

Well, how do I know that before–

Elena Kagan:

Well, don’t they make it available?

Samuel A. Alito, Jr.:

–How do I know that before the physical evidence is tested?

Suppose I’ve got all sorts of items that were found at the scene, and they might have DNA on them.

They might have epithelial samples on them.

You know, all this fancy forensic testing that is done these days.

Do I have to turn over all of that?

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J. Gordon Cooney Jr.:

No, Your Honor.

In this case what we are talking about is a piece of evidence, a specific piece, several specific pieces of physical evidence, that it has been stipulated the prosecutors knew contained the blood of the perpetrator.

It — the rule and the training that should have been provided in this instance, particularly since the DA argues that it was perfectly clear that that should have been produced–

Samuel A. Alito, Jr.:

Now, you see what I’m getting at is that you are dealing with a very specific situation.

So the instruction would be: If you have physical evidence and you have tested it for blood and you have a — you have the result of the blood test, but you don’t know whether — you don’t know the blood type of the accused, that — that’s Brady evidence, and that has to be turned over.

And you are saying that the failure to provide training to every assistant district attorney on a question of that specificity gives rise to a — a potential claim, gives rise to a claim?

J. Gordon Cooney Jr.:

–Your Honor, what I’m saying is that I think there are at least three layers to the training that were missing here.

One was the clear message about the importance of Brady compliance.

The second was the basic ground rules about how you go about your Brady obligation.

And third, if you have evidence that can conclusively establish to a scientific certainty the innocence of the person being charged, you have to turn it over or get it — get it tested.

You can’t just put it in your hip pocket and say, I know–

Sonia Sotomayor:

Wait a minute.

What evidence is there that they put this in their hip pocket?

There was a disclosure that the evidence existed.

Where is the evidence that the defense counsel didn’t have access to asking for it?

J. Gordon Cooney Jr.:

–Yes, Your Honor–

Sonia Sotomayor:

Or asking for it to be tested?

Where was that suppressed?

J. Gordon Cooney Jr.:

–The — the only information — there was a discovery response that was filed very shortly before trial, long after Mr. Thompson was charged with the crime, where in response to one of the questions, the response was: “Inspection to be permitted”.

If you look at the chronology–

Sonia Sotomayor:

And where is the Brady violation for telling a defense attorney, there was a blood sample there, you can test it?

J. Gordon Cooney Jr.:

–Your Honor, there was no information provided.

It was — the simple response was that the request was for all scientific evidence and it simply — and physical evidence from the scene of the crime.

The answer was: “Inspection to be permitted”.

Then the blood evidence, the very next day, after the response was provided, was removed from the crime lab by the prosecutors, never to be found again.

And defense counsel testified without impeachment at trial that he went to the evidence locker, looked in the evidence locker, found certain pieces of physical evidence consistent with the discovery response, but not the blood evidence, neither the blood report nor the physical specimens that were involved in this case, Your Honor.

Sonia Sotomayor:

So that you are claiming there was suppression of that evidence?

J. Gordon Cooney Jr.:

Absolutely, Your Honor.

John G. Roberts, Jr.:

So if it is — prosecutors can violate a defendant’s constitutional rights by making improper statements in their closing arguments.

Do you have to instruct new — I suspect new prosecutors coming out of law school don’t know what those rules are.

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John G. Roberts, Jr.:

Do you have to give instruction on what they can say in closing arguments?

J. Gordon Cooney Jr.:

Your Honor, I think, first of all, the issue has to rise to a constitutional level in order to be talking about this for section 1983 purposes.

John G. Roberts, Jr.:

My understanding is — I’m not an expert in criminal law.

I need training in that.

But my understanding is that comments in a closing argument can give rise to a constitutional violation.

So you should — you should train those people.

You know that.

You know that that can happen, just as you know there can be Brady violations.

So they need training in exactly what they can say and can’t say in closing arguments.

Anthony M. Kennedy:

And Miranda, and proper supervision of affidavits in support of search warrants, and proper instructions that tell the police not to exceed the scope of the warrant.

So this is — our course is expanding.

J. Gordon Cooney Jr.:

Justice Kennedy–

Anthony M. Kennedy:

The point of concern here is that we’re going to have to go through a list, case by case, of everything there has to be training on.

J. Gordon Cooney Jr.:

–I think — I think there are some important distinctions here.

And first of all, when you are talking about search and seizure, when you are talking about Miranda, when you are talking about those things, the actor that is committing the constitutional tort there is not the district attorney.

It’s the police.

What we’re talking about here, the constitutional tort–

John G. Roberts, Jr.:

When you are talking about improper comments in closing argument, it is the prosecuting attorney.

J. Gordon Cooney Jr.:

–But the second important distinction, Your Honor — and I do believe training should be given there.

But I think there is a fundamental distinction between a Brady violation, which happens in private and may never be revealed, and if revealed, happens long after trial and long after incarceration, and a situation where a prosecutor makes an improper comment during a closing jury, which is made in public.

Defense counsel has the opportunity right there to stand up and say, Your Honor, I object, and the Court has the ability to address that issue then and there.

With a Brady violation, you don’t have any of that.

It’s made in secret.

John G. Roberts, Jr.:

So you don’t have to train with respect to closing arguments?

J. Gordon Cooney Jr.:

Your Honor, I think they do.

But I think there’s — there’s a particular issue.

There is particular force in this context because of the unique nature of Brady, because it’s made in private.

Because it is — by definition, if the information has been concealed, it has not been revealed prior to the time the defendant suffers constitutional harm.

He’s found guilty, he’s sentenced to death, et cetera.

The Brady violation, unlike your situation, Mr. Chief Justice, doesn’t come to light, perhaps ever.

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J. Gordon Cooney Jr.:

But in Mr. Thompson’s case, more than a decade after he was convicted.

Ruth Bader Ginsburg:

And it’s something like I was trying to get at before when I said Miranda was out there, you know what was said, you know what was seized.

Talking about — but Brady, if the prosecutor doesn’t come out with it, high risk that it will never come out.

So we have use of force, plus that — which could kill people if you were not properly trained.

Brady, because if they don’t come up with the information, it could have what almost happened in this case.

Anything else on this special list?

J. Gordon Cooney Jr.:

Your Honor, I–

Ruth Bader Ginsburg:

The concern was that you don’t want to have to give the prosecutors a clinical law school course before you let them do their job.

J. Gordon Cooney Jr.:

–I agree with that concern, Your Honor.

And I think it’s important to remember that in this case, this was a no-training case.

The evidence in the light most favorable to Mr. Thompson was — there was zero Brady training in the office.

Elena Kagan:

So what would have been enough?

I mean, is an hour a year enough?

Is an hour a month enough?

J. Gordon Cooney Jr.:

I think that would have been dependent on what its content was, Your Honor, and the other circumstances of the office.

If you look at Canton, what Canton does is it asks the question: Is there an obvious need for training based on the circumstances of this particular–

Antonin Scalia:

Wait.

As I understand it, you really have a need to train them in, when you know defense counsel is coming over to look at the physical evidence, don’t remove from the locker some of the physical evidence?

You want to give a course in that?

J. Gordon Cooney Jr.:

–Your Honor, what happened is the physical evidence very conveniently was being sent to the crime lab when it was removed.

And so we don’t know what the motivation was as to why that physical evidence was removed at that time.

What we know is for many, many months–

Antonin Scalia:

Well, then, you shouldn’t have mentioned it.

I thought you were asserting that it was intentionally removed in order to prevent defense counsel from seeing it.

J. Gordon Cooney Jr.:

–What we assert, Your Honor–

Antonin Scalia:

You don’t know that.

J. Gordon Cooney Jr.:

–It was certainly not — it was intentionally not placed back in into evidence after it came back from the crime lab, and there was actual testimony from the grand jury that was handling this and looking into this situation for some period of time of just that.

Anthony M. Kennedy:

There is a causation problem here.

Even assuming training, if Deegan was going to destroy the evidence, or remove it anyway, as he admitted later to Rileman, then the training or lack of training is just irrelevant.

J. Gordon Cooney Jr.:

Your Honor, I think there are–

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Anthony M. Kennedy:

And I’m very concerned about that causation aspect.

J. Gordon Cooney Jr.:

–First of all — let me address that directly.

First of all, the causation question was put to the jury; the jury instruction very clearly said in order for there to be liability here the fault must be in the training program, not in the individual prosecutor, and the defense argued vehemently that there was a lack of causation.

What’s interesting here is–

Samuel A. Alito, Jr.:

But the judge actually, though, instructed the jury — this is back on JA 828 — in order to find that the district attorney’s failure to adequately train, monitor or supervise amounted to — deliberate indifference, etcetera.

So liability could have been predicated not on the lack of adequate training, but the absence of a process by which superiors in the district attorney’s office reviewed all of the Brady decisions that were made by more junior prosecutors; isn’t that correct?

J. Gordon Cooney Jr.:

–Your Honor, the concept of monitoring or supervision was actually the concept that defendants injected into the case.

And so to the extent that there is any concern that there’s an expansion from training, it’s been error that’s invited.

And I don’t believe it’s error, Your Honor; but it’s not something that — that was put into the case by the defense or the court.

Samuel A. Alito, Jr.:

Why wouldn’t — why wouldn’t that be error?

That is, the head of a very large office is personally liable under Canton for violations that are — that are produced by actions taken by subordinates, unless there is an elaborate process to review all of the decisions that are made by those subordinates?

Doesn’t that go well beyond anything Canton permits?

J. Gordon Cooney Jr.:

Your Honor, again, the clear thrust of this case was a failure to train case.

The concept of monitoring and supervision was introduced by the defense, not by the — by the plaintiffs.

But to get back to Justice Kennedy’s case–

Sonia Sotomayor:

Could you please state in simple terms to me what exactly they failed to train these prosecutors to do, that the prosecutors didn’t do?

What training — Justice Alito asked it generally, I’m asking specifically — what is the exact training that was required in this situation that caused the violation in this case?

J. Gordon Cooney Jr.:

–Number one, there was absolutely no Brady training at all.

Sonia Sotomayor:

Forget about no Brady training.

What — I think Justice Alito asked this question.

What specifically would the training have said or done that would have avoided this Brady violation?

J. Gordon Cooney Jr.:

First of all, I think a broad statement in training about the importance of safeguarding the rights of the accused–

Sonia Sotomayor:

Now that seems to suggest that you are claiming that if there was an intentional violation by prosecutors, that that statement would have avoided the prosecutor from doing something he or she knew was illegal.

Is that what you are intending?

J. Gordon Cooney Jr.:

–No, it isn’t, Your Honor.

Sonia Sotomayor:

Okay.

So tell me.

J. Gordon Cooney Jr.:

The — the second aspect of — of it, though, is what I said to Justice Alito, and that is that if you have physical evidence which if tested would establish either the guilt or the innocence of the — of the defendant, it needs to be produced.

Or at least tested.

Sonia Sotomayor:

That goes to the sufficiency–

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J. Gordon Cooney Jr.:

Right.

Sonia Sotomayor:

–of whether they had a policy to turn over or — because it was tested, so there was no Brady violation from the failure to test here.

J. Gordon Cooney Jr.:

The Brady violation was for failure to produce, you are right.

Stephen G. Breyer:

Isn’t — am I right — am I right on this?

Here — I read on page 4 of your brief that it seemed what happened — and I might not be right, correct me if I’m not.

What happened is a piece of paper called the lab report came to the — one of the prosecutors’ attention two days before the trial, and what it said was, the blood that was the perpetrator’s was type B.

And the person on trial has blood of type O.

Is that what happened?

J. Gordon Cooney Jr.:

Your Honor, certainly what the crime lab report said was that the blood that was tested of the perpetrator was type B.

Stephen G. Breyer:

And the — and the prosecutor knew that the person on trial had type O?

J. Gordon Cooney Jr.:

We don’t know that, Your Honor.

Stephen G. Breyer:

Ah, that’s something–

J. Gordon Cooney Jr.:

That’s the unresolved factual question.

Stephen G. Breyer:

–I see.

J. Gordon Cooney Jr.:

And I think that’s where causation comes in, Your Honor, because I think there are two possibilities.

Stephen G. Breyer:

Did it turn out at the trial that eventually the prosecutor knew it was type O?

J. Gordon Cooney Jr.:

Yes.

It turned out that Mr. Thompson was in fact type O.

But the evidence–

Stephen G. Breyer:

When the did they learn that?

J. Gordon Cooney Jr.:

–The evidence is unclear as to whether or not the assistants knew at the time that John Thompson had type O blood.

John G. Roberts, Jr.:

Could I ask you what — most law offices with which I am familiar, the training is mentoring.

In other words, the young attorneys learn from the older attorneys, often by following them along — around.

Would it have been an adequate training program for this office simply to say, new prosecutors, you don’t get to be first chair prosecutors until after a year, and you are going to follow one of the prosecutors around and learn from them?

Is that an adequate training program?

J. Gordon Cooney Jr.:

If in fact the senior prosecutors, Your Honor, have a good familiarity with the constitutional requirements–

John G. Roberts, Jr.:

Yes.

J. Gordon Cooney Jr.:

–absolutely.

John G. Roberts, Jr.:

Even — even if the violation that becomes of the basis for the claim later on is one that, you know, didn’t come up in that year?

We — they didn’t have a Brady issue in that first year.

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John G. Roberts, Jr.:

They went around; they sat in, in a lot of trials; but there wasn’t a Brady issue and so they didn’t learn about this type of question.

And — does that give rise to a claim of the sort you are bringing here.

J. Gordon Cooney Jr.:

I think — I think the failure here, and I think we have to come back to the deliberate indifference piece.

Because what would happen there in that instance, Your Honor, even if the training was not provided, I think as experience has shown under Canton, that claim would fail for failure to show the deliberate indifference of the policymaker.

But here you had substantial evidence about Mr. Connick’s indifference.

Samuel A. Alito, Jr.:

Mr. Cooney, when you — when you gave the specific instruction which you think should be provided to assistant district attorneys, what you stated was a questionable understanding of Brady, I think.

You — did I understand you correctly?

You said that Brady means that if the prosecutor has physical evidence which if tested might establish the defendant’s innocence, that is exculpatory evidence that must be turned over?

J. Gordon Cooney Jr.:

Your Honor, that certainly has been the position taken by the district attorney’s office in this case.

Samuel A. Alito, Jr.:

Isn’t that to do with Arizona v Youngblood.

J. Gordon Cooney Jr.:

Your Honor, I believe it — it is consistent with Brady that if — if one has a piece of evidence that can conclusively establish that the defendant is innocent, that it can’t be the law that the prosecutor can just put it in his hip pocket, not get it tested, and not turn it over to the defense, and not worry about whether they’re prosecuting an innocent man.

Sonia Sotomayor:

But you see, it was tested.

And it was made available to the defense.

Turning over — using the word turning over is ridiculous, because they are not going to physically give it to the defense attorney to go off and do what he wants.

They are going to give it to a lab that will establish a chain of custody, et cetera, et cetera.

So it was made available.

He went to look at it but the looking at it wouldn’t have told the defense attorney anything.

They had to make it available for testing.

He never asked for testing.

They did the lab reports.

So now we come down to the only failure is in the turning over of this report.

Correct?

J. Gordon Cooney Jr.:

No, Your Honor.

First of all there is — there is a stipulation, stipulation L at JA 14, prior to the armed robbery trial, Mr. Thompson and his attorneys were not advised of the existence of the blood evidence, that the evidence had been tested, that a blood type was determined definitively–

Sonia Sotomayor:

Now what did I just say?

The failure to turn over the report.

Correct?

J. Gordon Cooney Jr.:

–But — but — yes, Your Honor.

But — what also is present here is the defense never had the chance to — never saw the physical blood evidence itself.

Sonia Sotomayor:

Never knew it existed?

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J. Gordon Cooney Jr.:

Never knew it existed, Your Honor.

Sonia Sotomayor:

That’s–

J. Gordon Cooney Jr.:

There is testimony clear — testimony to that effect.

If you look at Mr. Williams’ testimony in this case, there is a section of the cross-examination where John Thompson’s defense counsel at the original criminal trial said just that.

He didn’t know it existed.

Antonin Scalia:

But it isn’t — it isn’t clear from what — according to what you said earlier it isn’t clear that it was intentionally withheld from the defense.

It might have just been — you said it was sent to the lab when — when he came to look for it.

J. Gordon Cooney Jr.:

But–

Antonin Scalia:

So would training have — have gone into that detail?

“Don’t send something to the lab when defense counsel is coming over to look for it. “

I mean, you know, that — that’s pretty detailed.

J. Gordon Cooney Jr.:

–Yes, Justice Scalia, but here there is a stipulation that the crime lab report with the conclusive evidence about the perpetrator’s blood type was never–

Antonin Scalia:

Okay, but — but that — that’s the lab report.

That — that’s what Justice–

J. Gordon Cooney Jr.:

–And the physical evidence was never seen, Your Honor, by defense counsel.

Antonin Scalia:

–For all we know, by accident, right?

And the training would — would probably not have remedied that — that difficulty.

J. Gordon Cooney Jr.:

Your Honor, four prosecutors, it is clear that four prosecutors knew about the existence of blood evidence for months, and it was never produced to the defense.

And that blood evidence would have conclusively established John Thompson’s innocence.

Antonin Scalia:

The defense was told to come over and look for it — to look at it.

And when he came over to look at it — for all we know, by accident — it was — it had been sent to the lab.

J. Gordon Cooney Jr.:

But — but Your Honor, the “it” was not come over and see the blood evidence.

It was, there was a broad request for — for–

Antonin Scalia:

Yes, I understand, but — yes.

Okay.

J. Gordon Cooney Jr.:

–Physical evidence at the crime scene, including things that have nothing to do with blood.

So there is nothing that the defense lawyer would have known by going to the evidence room to say, I know there is nothing here.

John G. Roberts, Jr.:

But isn’t that — isn’t that best practice?

In other words, I thought that was the good thing, when what the prosecutor does is say, look at everything we’ve got.

And as my brother has suggested, what is important may not be there for either deliberate misconduct or by happenstance.

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J. Gordon Cooney Jr.:

But the point here, Your Honor, and I think this goes to the causation point, that — that it would appear — it would appear from looking at Mr. Williams’ testimony that there was a deliberate effort to stay away from blood evidence in the carjacking case.

And Mr. Williams conceded that.

So this idea that this was an innocent error on the part of the prosecutors does not find support in the record.

The question is–

Sonia Sotomayor:

–But that dooms your case– if it wasn’t an innocent error, if it was an intentional violation of Brady, there is no training that was going to stop him from doing that.

J. Gordon Cooney Jr.:

–Your Honor, I think there is a difference between a tactical choice to do something — Sharpe — on the one hand, and a knowing Brady violation on the other hand.

And the jury could clearly conclude — particularly because the 30(b)(6) witness in this office testified that, in his view, it wasn’t Brady material unless the prosecutors knew John Thompson’s blood type, the jury could clearly conclude that what happened here was these four prosecutors didn’t understand and never got a clear message about — about what Brady required, and they did not produce this evidence.

There is nothing that clearly showed that they committed knowing Brady violations in this case.

Elena Kagan:

Mr. Cooney, I’m still confused as to sort of how much is enough by way of training and how you would ask a court or a jury to decide that.

You suggested to the Chief Justice formal training wasn’t — isn’t necessary if there is some supervision, if there is some mentoring.

But, you know, this seems to give cities no sense of what they have to do.

No safe harbors.

Is that your position?

J. Gordon Cooney Jr.:

Your Honor, I think that Canton articulates a very flexible test.

And I don’t think Canton says there is one size that fits all.

And I think the protection that district attorney’s offices get from Canton is from the standard of deliberate indifference.

And if one looks at the 21 years of experience under Canton, there have been 6 and 8 cases against prosecutors’ offices under this kind of theory, in total, where there was some payout from the prosecutors’ offices to the defense.

Total in the 21 years.

So — and the Court said — this Court said in Canton, judge and jury doing their job are adequate to the test.

I think we have been spending a lot of time focusing on how much training.

The fact is, this is a no-training case, where evidence that the defendants now concede should have been produced wasn’t produced, and four people knew about it and failed to produce it.

In addition, there were multiple additional pieces of Brady material in the murder case that weren’t produced.

And this–

John G. Roberts, Jr.:

Would this have been a no-training case if the rule was you have to be in the office for 3 years as a second chair prosecutor before we let you have a case, and in fact, you have to be here 10 years before we let you have a capital case?

That’s all it says.

Is that sufficient training?

J. Gordon Cooney Jr.:

–I think, again, you would have to look at the circumstances of the office.

I think with this — this presumption against disclosure that was present in Connick’s office, that takes this case out of the realm of the typical prosecutor’s case, because it is a bare minimum disclosure rule.

I think there needs to be — if you are going to have that bare minimum disclosure rule, there needs to be something to counterbalance.

If you look at what the assistants testified to in this case, they all knew what not to produce.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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J. Gordon Cooney Jr.:

What they didn’t know was what to produce.

Ruth Bader Ginsburg:

But what do you do with the Dubelier testimony?

Didn’t he testify that it was standard operating procedure to turn over all lab reports?

J. Gordon Cooney Jr.:

Your Honor, I think there are two very quick answers to that.

If one looks at J.A. 550 to 551, which was Mr. Glas, the grand jury prosecutor’s, testimony.

What he clearly said was during the grand jury, when Mr. Connick decided to terminate the grand jury, Mr. Connick and his first assistant were actually arguing with Glas that if the prosecutors didn’t know John Thompson’s blood type, they didn’t need to turn over the blood report.

So that is number one.

I think there is an issue of fact that has to be resolved in our favor solely from J.A. 550 and 551.

And the second is, Your Honor, the — the rule, the bare minimum discovery rule.

Louisiana law did not require the production of crime lab reports in 1985.

John G. Roberts, Jr.:

Thank you, Counsel.

Mr. Duncan, have you three minutes remaining.

S. Kyle Duncan:

Justice Alito and Justice Kagan, you asked repeatedly questions designed to elicit the response from my colleague: What would you tell ADA with respect to training — and I believe Justice Sotomayor as well — that would have prevented such a thing?

And I didn’t hear a clear answer.

The legal issue in this case turns on the fact that in the deadly force scenario that Canton marks out as the paradigm single incident case, it is very clear what a police office needs to tell a police officer.

Here’s the deadly force standard under Tennessee v. Garner: Don’t shoot people unless there is a reasonable probability of physical danger to yourself or to others.

You’ve got to tell them that.

With respect to the Brady scenario, it’s not clear at all.

Yes, of course, training is useful.

Yes, of course, training is important.

But how do you connect up a lack of specific training with a particular violation that occurs?

And having heard the argument, I’m — I’m no longer clear as to what the theory of the case of my colleague’s is about what caused the violation.

Whatever caused the violation, I haven’t heard about a specific training measure that would have actually prevented what happened in this case.

John G. Roberts, Jr.:

How do you train your new hires?

First day, somebody right out of law school shows up and says, I want to be an assistant district attorney.

How do you train them?

J. Gordon Cooney Jr.:

I think the first thing you do is you have a hiring process that emphasizes the important of — the importance of Brady, as this office did.

Brady was important.

One witness said — McElroy — from the moment you walked in the door, you had to write an essay on Brady.

Brady was emphasized as being very important.

Audio Transcription for Opinion Announcement – March 29, 2011 (Part 2) in Connick v. Thompson

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Elena Kagan:

Mr. Duncan, that I think you can’t say, because that’s just overturning what the jury found.

S. Kyle Duncan:

I — I don’t think — the jury couldn’t have found that that didn’t occur, Your Honor.

The jury found that that was inadequate.

Elena Kagan:

The jury found that there was inadequate training.

S. Kyle Duncan:

Correct, Your Honor.

Elena Kagan:

In fact, the jury found — I think, if you look at the record — the jury could have found, a reasonable jury could have found, that there was no training here.

S. Kyle Duncan:

A reasonable jury could have found — well, Your Honor, we don’t contest the finding of inadequate training.

What we contest is the ingredients that could lead to a deliberate indifference finding on the basis of inadequate training.

And what we say is that this case, that is a general case about you failed to train on Brady, it doesn’t fit within the single incident hypothetical.

And what I was trying to get at with — in response to your questions and Justice Alito’s questions was that, if you can’t say with any specificity, well, what training do you give?

You asked repeatedly, Your Honor, how much training is enough?

So is an hour a year?

I thought I heard my colleagues say that an hour a year may make this not a no-training case, and so what you have there is a pattern of–

Stephen G. Breyer:

Do we have to overturn what the jury found?

S. Kyle Duncan:

–No, Your Honor.

Absolutely not.

Stephen G. Breyer:

We don’t?

Because they found that the failure to adequately train amounted to deliberate indifference to the fact that inaction would result in a constitutional violation.

That’s what they found.

Now, how can we — assuming that’s true, and accepting it and not overturning it — find that there was something unlawful?

Because you are arguing — you are all arguing about whether the training program really was adequate or not.

They found it was not.

What do we do?

John G. Roberts, Jr.:

You can answer.

S. Kyle Duncan:

Thank you, Your Honor.

The correct resolution is the lower courts should dismiss the failure to train claim as a matter of law because there was no demonstration of the pattern of violations and this situation does not fall within the narrow range of circumstances that Canton foresees for single incident liability.

John G. Roberts, Jr.:

Thank you, Counsel.

The case is submitted.