This week, the Supreme Court decided Connick v. Thompson. The decision received some justifiably scathing critique, and this morning, an eloquent, moving response from John Thompson himself, the man who spent eighteen years in prison, most of them on death row, for a crime he did not commit, because of prosecutorial misconduct. For an excellent summary of this distressing affair, and of Thompson’s dramatic last-minute acquittal, I recommend the excellent NPR coverage. It’s difficult to provide a short version, but the facts are, in essence, as follow:
Thompson got arrested for murder and subsequently charged with an unrelated burglary. The prosecution decided to proceed with the burglary trial first, because a conviction would rule out Thompson’s testimony in the murder trial and would allow them to seek the death penalty. They did not reveal to the defense several important pieces of exculpatory evidence, including a blood sample taken from the crime scene. Thompson was convicted of burglary, did not testify in his murder trial because of the conviction, got convicted of the murder, too, and sentenced to death.
A month before his execution, a private investigator managed to unearth the blood sample hidden almost twenty years before. The blood type did not match Thompson’s. Thompson was retried and acquitted of all charges.
Unbeknownst to Thompson at the time, several years before the discovery – when he had already been in death row for years – one of the prosecutors, diagnosed with a terminal illness, revealed to another prosecutor that he had withheld the exculpatory evidence. Now aware of the misdeed, no one else in the prosecutor’s office had done anything to bring this information to light. After his exoneration, Thompson sued the prosecutor’s office for damages under Section 1983. He was awarded 14 million dollars in damages by a jury. The decision was appealed to the Supreme Court.
Justice Thomas’s opinion was that the prosecution’s failure to disclose the exculpatory evidence did not constitute a general flaw on the municipal/organizational level. The opinion states that this was a personal, intentional misdeed, and that there was no duty to train attorneys in discovery rules beyond what they learned in school. Justice Scalia’s opinion is even more alarming: He says no discovery violation was committed, at all. Justice Ginsburg’s dissent points out a pattern of prosecutorial misconduct at the office, arguing that better training might have prevented this tragedy.
Here are my two cents about this: The opinion and concurrence are wrong, empirically and morally. But the dissent also misses the point. Whether a given discovery error, or any other prosecutorial error, stems from negligence, lack of training, or intentional deed, it occurs within the fertile Petri dish of prosecutorial organizational culture.
Classic social science courtroom research in the 1960s and 1970s focused on “the courtroom workgroup”: Judges, prosecutors, and defense attorneys. In ethnographical studies of these groups, scholars have consistently found a strong adherence to the organizational culture of the office. One “goes native” upon starting to work there, and it impacts not only one’s value system, but also how one reads criminal cases.
It’s as if prosecutors are trained to see the faces and defense attorneys the vase, or vice versa. Prosecutors are trained to look at convicting evidence and at the “convictability” of the case. Defense attorneys are trained to find flaws in the police files. After a while – and it really doesn’t take much – it becomes a second nature. Very little crossover and cross-pollination occurs, and as a result, ironically, the people in charge of spotting exculpatory evidence are prosecutors, who would naturally be less inclined to notice its exculpatory nature.
I sometimes run a little experiment when I teach our criminal law concentrators. Following this interesting experiment, I show them this video of a police chase and ask them several questions: Whether they think the driving was dangerous to the driver, the police, the public, and whether ending the chase in a way that endangered the driver was justified on the part of the police. Without fail, every year the classroom splits along several demographic lines, the notable being people who have interned in prosecutorial offices and in defense offices. Not only is there a split on whether the behavior was justified. There is a split about the facts; they have been socialized to perceive the facts in different ways.
This is what I think is at the bottom of this. One man’s willful act of deceit gets support by others, who are too lazy/obtuse/corrupt to report, but all of this cannot happen without a culture that has educated them to dehumanize and disbelieve defendants, even in the face of evidence to the contrary. This cognitive failure is not an aberration; it is the natural outcome of a hyper-adversarial system, in which prosecutors basically run the show.
The bottom line is: Justice Thomas is wrong. Justice Scalia is even more wrong. Thompson should have prevailed. However, I am much less optimistic than Justice Ginsburg, and truly believe that no amount of training could have helped here. What is needed is more socialization, starting in law school and continuing, into the thinking patterns of the other side. Prosecutorial offices should hire more people with defense experience and vice versa, and those people – trained into the ways of thinking of the other side – should run training programs. Law school should emphasize the importance of arguing both ways, not as an empty exercise in fancy rhetoric, but as a tool for improving perception. The bar exam should place more weight on the performance exam, asking future practitioners for persuasive memos in both directions. And, of course, toning down our farcical, game-show-like enthusiasm for hyperadversarialism would help, but that may not happen in my lifetime.
This week, Madrid v. Gomez, a massive class-action lawsuit on behalf of Pelican Bay inmates filed in 1995, came to an end. KQED reports:
In a sweeping decision with national implications, U.S. District Court Judge Thelton Henderson of San Francisco ruled in 1995 that Pelican Bay inmates had been subjected to excessive violence and cruel and unusual punishment. That followed harrowing courtroom testimony of prison staff routinely beating, burning and even shooting inmates and getting away with it. Mentally ill inmates were locked away in isolation units with almost no contact with doctors or other staff.
The trial also included evidence that Pelican Bay guards had staged an inmate riot while Henderson was visiting the facility.
Federal prosecutors alleged the guards were trying “to show Judge Henderson that Pelican Bay is a dangerous place, and that he should not interfere with the guards in running the prison.” Henderson ordered the prison to remove any seriously mentally ill or retarded inmates from the security housing unit. He also appointed a federal monitor to oversee changes in the way California deploys force in prison and how it investigates and disciplines prison staff.
Henderson ended the case with a final three-page written order after the California Department of Corrections and Rehabilitation pledged to keep the reforms even without court supervision. His order was made public Monday.
“The Court is proud of the work done during Advertisement the life of this case. Pelican Bay was once a place where prison officials used force ‘for the very purpose of inflicting punishment and pain,'” Henderson wrote, quoting from previous findings in the case.
The judge said he is concerned the department could revert to its previous unconstitutional practices but said he is satisfied that attorneys representing inmates will sue again if the department regresses.
“CDCR has complied with the Madrid mandates and successfully created a model internal affairs investigation and employee disciplinary process. Investigations are consistent, thorough, fair and transparent. The Madrid mandates also provided oversight of employee investigations by the formation of the Bureau of Independent Review in 2004, part of the Office of the Inspector General (OIG). In its last report, the OIG noted that CDCR has substantially complied with the policies and procedures mandated by the Madrid court,” Cate said.
As Michael Montgomery says in the recorded portion, the broad issue of SHU and isolation practices remains unanswered.
Americans are in more debt than ever before, and the banks are going to new extremes to squeeze us for every last penny: If you can’t pay up, they’ll try to get you locked up.
The Wall Street Journal has been investigating the disturbing resurgence of debtors’ prisons throughout America — here’s one especially infuriating example of what the banks are up to: AIG got a $122.8 billion bailout from taxpayers — that’s $4,000 per American. Jeffrey Stearns happened to owe AIG $4,000 on a loan for his pickup truck. How’d the mega-corporation handle his debt? Did they forgive him because of the public’s recent largess? No way: They had him arrested in front of his family.
After being handcuffed in front of his four children, Mr. Stearns, 29 years old, spent two nights in jail, where he said he was strip-searched and sprayed for lice. “I didn’t even know I was being sued….It’s the scariest thing that ever happened to me.”
The Wall Street Journal’s data reveals that across the country, banks are having tens of thousands of Americans arrested over their debts. What happened to Stearns could happen to almost anybody.
This morning, the CNN website features a piece by psychiatrist Terry Kupers from the Wright Institute regarding Wikileaks suspect Bradley Manning’s imprisonment conditions. Terry, author of Prison Madness (reviewed here by Psychiatric Services), argues that keeping Manning in solitary confinement is cruel and counterproductive to the goal of preserving Manning’s safety and sanity.
I haven’t read Prison Madness, but this excellent 2009 New Yorker article by Atul Gawande is helpful in explaining why solitary confinement is one of the cruelest forms of imprisonment. My two cents: Manning’s headline case should not be seen as exceptional. It should draw our attention to the fact that non-Wikileaking inmates are, as a matter of routine, held in solitary confinement — even if, as our pal Sara from the Prison Law Blog remarks, CDCR insist on calling it something else. In addition to the maddening conditions, I frequently receive letters from inmates complaining about the strict control over reading materials at SHU units.
When reading about the imprisonment conditions of some particular inmate or other whose issue has made the news, I find it useful to think how many unnamed, invisible folk are subjected to the same, or worse, incarceration regimes. I encourage my readers to do the same.
The debate over privatized correctional institutions is, for the most part, a non-debate. Institutions owned, funded, and directed by such entities as the Corrections Corporation of America are a fact of life, and Californian inmates hare subjected to privatized out-of-state institutions as well as to privatized operations within state prisons. The jury is still out on whether private institutions produce higher or lower recidivism rates (this Florida study suggests no significant differences between private and public institutions; here’s a good lit review from the study of previous projects in the same vein). But beyond the issue of long term gains, privatized institutions provide problematic opportunities for profit making that end up in corruption. And corruption comes in many forms.
taking millions of dollars in kickbacks from the owner of for-profit juvenile detention facilities. Mark Ciavarella was convicted on 12 of 39 counts, including racketeering, racketeering conspiracy, mail fraud, money laundering conspiracy, conspiracy to defraud the U.S. and filing false tax returns. The jury also found that he must forfeit the $997,600 “finder’s fee” he received from the developers of private juvenile detention centers. Another former judge charged in the case, Michael T. Conahan, pleaded guilty to a single racketeering charge last year and is awaiting sentence.
The author, Janice Brickley, informs us of the California Commission on Judicial Performance; lawyers can submit complaints about judges, and in situations such as the Pennsylvania travesty, they should. But much as it is shocking to see a judicial officer whose neutrality is the cornerstone of justice sell off to correctional profiteers, let’s keep in mind that judges are human beings. And the absolute power provided to people – whether it’s over prison management or people’s lives – corrupts absolutely.
Almost once a week I receive mail from inmates or family members concerning the solitary confinement conditions at the SHU unit in Pelican Bay. We have previously blogged about the discontents of solitary confinement and behavioral modification here and here. Now, the Center for Constitutional Rights is organizing an upcoming panel about the conditions in isolation units.
Where: The Women’s Building, Audre Lorde Room, 3543 18th Street #8, San Francisco, CA
When: Tuesday, April 5, 6:30pm-8:00pm
Who:
Dr. Terry Kupers, M.D.
Alexis Agathocleous, Staff Attorney with the Center for Constitutional Rights
Zahra Baloo, Executive Director, Council on American-Islamic Relations (CAIR)-San Francisco Bay Area
This excellent and disturbing Frontline documentary exposes the deplorable state of death investigations around the United States. Incompetent, inattentive pathologists, whose performance is never scrutinized, work for medical examiner offices whose accuracy and adherence to professional standards is never reviewed or accredited. People with no medical education or skills are employed as medical examiners. While numerous medical examiner offices are portrayed, considerable attention is given to terrible mistakes in Sonoma County and elsewhere in California.
This relates to the focus of this blog in two ways: First, one of the distressing implications of incompetent death investigations is the potential for wrongful convictions. And second, considering the high incidence of inmate deaths, the concern is that deaths resulting from negligence (or worse) of correctional personnel will go undetected.
In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”
In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.
But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.
In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.
What does this mean in the age of lethal injection litigation? Who knows? And, to what extent does Stevens’ grim observation of the personnel change in SCOTUS hold true after the recent appointments of Sotomayor and Kagan? Thoughts from our readers welcome.
I’m at the Students for Sensible Drug Policy West Coast Regional Conference (at SF State — see http://ssdp.org/conference/westcoast) where Senator Mark Leno is currently answering a question about Proposition 19. This initiative would reduce California’s prison population by allowing adult possession and cultivation of 25 square feet of cannabis.
Senator Leno reminds us that California has the USA’s highest recidivism rate, 70%, compared to the national average of 35%. California’s prisons confine 170,000 inmates, 180% of their capacity of 90,000. Wow!
Hastings Law Students for Sensible Drug Policy and American Constitution Society present Allen Hopper from ACLU on the constitutionality of Prop 19 to legalize marijuana WITH FREE FOOD
Allen Hopper, Legal Director of the ACLU Drug Law Reform Project, will address constitutional and other legal concerns raised by the text and context of Proposition 19, the November 2010 CA ballot question on taxing and regulating marijuana. Mr. Hopper will discuss the potential legal and practical interactions of Proposition 19 with federal law, including the Controlled Substances Act. Mr. Hopper will also discuss how Proposition 19 may affect the CA state medical marijuana regime, as well as its effects on CA employment law and employer policies.
(photo by AP’s Patrick Semansky, courtesy NPR)
