HUFFINGTON
08.04.13
THE UNTOUCHABLES
Brady obligations. Therefore his
failure to train them on the matter
wasn’t such a big deal.
Thomas’s opinion was at odds
with Connick’s professed ignorance of Brady and the DA’s own
admission that he hadn’t bothered
keeping up on the law. But even
if Thomas was correct, consider
the implication: It would mean
that as far as the U.S. Supreme
Court is concerned, when prosecutors fail in their obligations under
Brady, they must do so knowingly
and willingly. That means the city
can’t be held liable. But when
prosecutors cheat willingly and
knowingly, they’re protected by
absolute immunity. Justice Ruth
Bader Ginsburg wrote a dissent for
the minority. She was so incensed
by the court’s decision that she
read her opinion from the bench.
The net result of the Supreme
Court’s immunity decisions is a
sort of case-by-case buck-passing.
In declining to attach liability under one theory, the court inevitably makes a good argument for why
it should attach under a different
one. Unfortunately, the court has
already denied liability under that
theory, too, and either has no interest in overturning that decision,
or won’t consider the possibility,
because it wasn’t argued.
Ultimately, the majority opinion in Thompson’s case falls back
on the argument that the legal
profession is perfectly capable of
regulating itself. “[A]n attorney
who violates his or her ethical obligations is subject to professional
discipline, including sanctions,
suspension, and disbarment,”
Thomas wrote. In theory, perhaps.
But not in reality, and once again,
not in New Orleans.
A CULTURE OF CONVICTION
The particularly striking thing
about that argument — that selfregulation and professional discipline are sufficient to handle
prosecutorial misconduct — is
that even in the specific Sup