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Experienced Colorado Attorney on Sentencing

An experienced criminal defense attorney explains Connick v. Thompson and prosecutor’s liability for Brady Violations.

Facts: Louisiana convicted Mr. Thompson of armed robbery in one case, murder in another case, and sought and obtained a death sentence against him. The same District Attorney assigned the same lead DA to each case along with 2 other Assistant DA’s. In the armed robbery, the assailant supposedly bled on the pant leg of one of the witnesses. The prosecution then sought testing of that swatch from the pant leg for blood type, which came out to be Type B. Mr. Thompson’s blood is Type O.

Here is how Justice Ginsburg told the facts:

“Second, Dubelier or Whittaker ordered the crime laboratory to rush a pretrial test of the swatch.  Tr. 952–954. Whittaker received the lab report, addressed to his attention, two days before trial commenced.  Immediately thereafter, he placed the lab report on Williams’ desk. Record EX151, EX589.  Although the lab report conclusively identified the perpetrator’s blood type,  id., at EX151, the District Attorney’s Office never revealed the report to the defense.6 Third, Deegan checked the swatch out of the property room on the morning of the first day of trial, but the prosecution did not produce the swatch at trial.   Id., at X43.  Deegan did not return the swatch to the property room after trial, and the swatch has never been found.  Tr. of Oral Arg. 37.”

To recite all the prosecutorial misconduct here, would be just to recite the entire record. However, the prosecution then sought perjured testimony from another suspect who matched the description of the murder suspect  (Thompson did not). The prosecution did not disclose other exculpatory evidence, fought the defense’s efforts to force disclosure at every turn, and continued to fight disclosure long after the conviction was final. Shortly before Mr. Thompson’s scheduled execution, the defense found on microfiche the original results from the testing of the blood on the swatch from the pant leg. Based upon that, the court threw out the armed robbery conviction, an appellate court reversed his murder conviction and death sentence, and at a later trial, a jury found Mr. Thompson not guilty of murder.

Issue: Whether a prosecutor and his office may be liable for Brady violations that result in a death sentence and 18 years in prison, with 14 years of that sentence on death row?

Held: No.

Reasoning: In a 5-4 decision, the U.S. Supreme Court minimized the violation as one isolated incident, and found the prosecution could not be liable.  Justice Ginsburg thoroughly eviscerates the majority opinion, and shows clearly that this was not an isolated incident, but a concerted effort to convict and kill an innocent man.  Justices Sotomayor, Breyer, and Kagan joined Justice Ginsburg in her dissent.

***Commentary contributed by Eric Sims Jr., Esq.***

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