Yet Another Outrage From Our Right-Wing Supreme Court

[Lonestar_logic]

Oh, come on, Lone Star. Surely you can do better than this. "America - Love It Or Leave It," eh?

Right.

And what makes you think I don't like the way our judicial system works? FYI, I have been an intergral part of that very system for probably more years than you have been on this earth. I think it is the greatest system in the world, bar none. There are individual decisions of courts that I will question - as will most people. There are certain things I would change in the system.

But as for the system as a whole? Best in the world.

I'd rather you leave it than hear you tear it down or marginlize any part of it.

I don't give a rat's ass if you been part of the system for a thousand years, it doesn't make you any smarter than anyone else. And what makes me think you don't like the system is your remark about the supreme court showing it's "true colors". The supreme court did the job it's supposed to do. So don't go and try to marginilze them because you don't like their decision.

OK, good buddy. Everyone has a right to their opinion. You've obviously got yours here.

Mine is that there are parts of the system that are in need of repair. That does not mean the whole system is bad. Sorry my commenting on what I consider glitches in the system, seems to upset you. You suggest that I leave this country if I don't like it. I would suggest that you not read my posts on the subject if you don't like those - or, better yet, address the issues rather than resorting to logical fallacies in response.

Well, you can't have it both ways. You say it's the best in the woirld, yet it needs some repairs.

I suppose the best in the world isn't good enough or up to your standards.

But for the sake of argument , what exactly needs repairing and how would you suggest we repair it.

 

[Annie]

It is difficult to discuss this case with George since he is being unduly stubborn and rather irrational.

What happened to the defendant in that criminal case is unconscionable. He got fucked by prosecutors whose JOB it is to do justice, not to merely seek convictions.

He SHOULD be able to sue for the damage done to him and he SHOULD be able to win and that verdict/judgment and the award of damages SHOULD have been able to stand. In all of that -- every tiny bit -- I believe George is right.

On the OTHER hand his implicit criticism of the SCOTUS decision is ridiculous and not only unsupported, but unsupportable.

As Jillian correctly noted, it is true that lawyers are taught to question rulings. Fine. I have questioned many rulings and will continue to do so. Questioning a ruling -- or its basis -- is perfectly appropriate.

But to "conclude" that the decision "must" have been the product of a political bias because it came from 4 conservatives and one alleged "turncoat" is petty and foolish.

In point of fact, as regrettable as it turns out, the analysis by Justice Thomas seems pretty solid. IF his legal ANALYSIS of the main point of contention is mistaken, then THAT'S the proper basis upon which to criticize the Court's decision. But that's not what Georgie did.

George, you can do better. I have SEEN you do better. In this one, you didn't even try. Until you do, your rhetoric on this topic is quite shallow and unpersuasive.

All right, old buddy - thank you for at least an ATTEMPT to be civil. I do appreciate it.

Now, listen up. What this decision boils down to is whether or not the evidence was sufficient "to establish a pattern of neglect" or whether the neglect in this case was a single, isolated incident.

In order to determine that, the Court had to examine the evidence. The majority did that, and felt that a pattern of neglect was not established, hence the ruling that came down.

OK - fair enough. But, I think you will have to agree with me, that whether or not the evidence passed muster, is a SUBJECTIVE decision. Different people (justices) can look at the same evidence, and some will feel the pattern has been established, while others will not. Subjective.

You used the word "disingenuous" earlier. I will pull it out now - but I am not directing it at you. I am directing it at the majority. I submit they are being disingenuous in this decision by SUBJECTIVELY finding no pattern of neglect in order to get the job done, i.e., let the DA's office and the municipality off the hook because that's what good conservatives do.

You can dismiss my thoughts on this all you wish - it does not change those thoughts or the arguments that support them. I guess we will just have to leave it to other readers of this thread to make their own judgments on that point.

I'm not trying to be difficult here, though I was miffed that you never answered my post regarding law schools and required continuing education. It seems to me that nearly all or perhaps all of SCOTUS decisions by definition require subjective analysis of the law, the constitution, and the arguments put forth. Do you disagree?

 

[BenNatuf]

It is difficult to discuss this case with George since he is being unduly stubborn and rather irrational.

What happened to the defendant in that criminal case is unconscionable. He got fucked by prosecutors whose JOB it is to do justice, not to merely seek convictions.

He SHOULD be able to sue for the damage done to him and he SHOULD be able to win and that verdict/judgment and the award of damages SHOULD have been able to stand. In all of that -- every tiny bit -- I believe George is right.

On the OTHER hand his implicit criticism of the SCOTUS decision is ridiculous and not only unsupported, but unsupportable.

As Jillian correctly noted, it is true that lawyers are taught to question rulings. Fine. I have questioned many rulings and will continue to do so. Questioning a ruling -- or its basis -- is perfectly appropriate.

But to "conclude" that the decision "must" have been the product of a political bias because it came from 4 conservatives and one alleged "turncoat" is petty and foolish.

In point of fact, as regrettable as it turns out, the analysis by Justice Thomas seems pretty solid. IF his legal ANALYSIS of the main point of contention is mistaken, then THAT'S the proper basis upon which to criticize the Court's decision. But that's not what Georgie did.

George, you can do better. I have SEEN you do better. In this one, you didn't even try. Until you do, your rhetoric on this topic is quite shallow and unpersuasive.

There is no argument that he should have been able to sue, of course he should. As to whether he should have been able to win, well. Not so much.

What is the towns responsibility when it hires a DA to avoid liability (not just you, but also you... LOL). I believe to avoid liability for negligance all one must do is take "ordinary care" and in the case of a town hiring a DA would that not be simply making sure the guy was a lawyer liscenced by an entity they are subbordinate to (the state). Does the town have any duty to question the liscencing by the state? To test it themselves? They are subordinate to the state and the rational assumption would be that the state did due dilligence in liscencing him.

Given that, and the fact that as an officer of the court the lawyer himself has a personal ethical responsibility to keep himself aprized of the law and procedures which can effect his liscensing (which since he still has when hired the presumption would be that he hasn't acted contradictory to) what other due dilligence should the town have done? Does the town even have a duty to train him at all? I would think not since it's a proffession with its own ethical standards enforced by the liscensing agency (the bar) that require the lawyer himself to keep himself aprised of the law. Any training they did would be over and above the none required, so how can you hold someone negligent for going beyond whats required by ordinary care because they didn't go far enough in their extra ordinary care?

 

[George Costanza]

I'd rather you leave it than hear you tear it down or marginlize any part of it.

I don't give a rat's ass if you been part of the system for a thousand years, it doesn't make you any smarter than anyone else. And what makes me think you don't like the system is your remark about the supreme court showing it's "true colors". The supreme court did the job it's supposed to do. So don't go and try to marginilze them because you don't like their decision.

OK, good buddy. Everyone has a right to their opinion. You've obviously got yours here.

Mine is that there are parts of the system that are in need of repair. That does not mean the whole system is bad. Sorry my commenting on what I consider glitches in the system, seems to upset you. You suggest that I leave this country if I don't like it. I would suggest that you not read my posts on the subject if you don't like those - or, better yet, address the issues rather than resorting to logical fallacies in response.

Well, you can't have it both ways. You say it's the best in the woirld, yet it needs some repairs.

I suppose the best in the world isn't good enough or up to your standards.

But for the sake of argument , what exactly needs repairing and how would you suggest we repair it.

Oh, golly - there are many things, most of which are things that I have to deal with on a daily basis in my own court. I'll give you one example.

When a person gets arrested, they can post bail at the police station, based on a standard bail schedule. For example: get busted for possession of meth, the jailhouse bail is 20K. OK - the guy posts bond at the police station. Costs him two grand, with a bondsman (10%). Now the DA gets ahold of the case and files charges. In reading the police report, the DA spots maybe one or two additional charges that might be filed, so he adds them in to the Complaint.

Now, the guy comes to court (walking in the front door because he is on the 20K bond he previously posted) to be arraigned on the charges. NOW, however, the bail is 50K, due to the charges that were added by the DA when he filed the case. (The more charges, the higher the bail.) The judge takes the defendant into custody because his bail is insufficieint. He has only posted 20K - now, the required bond is 50K. He is 30K short.

All right - I suppose, on its face, this is Kosher. After all, bond should be based on the charges. But look what has happened here - the poor bastard had to part company with two thousand dollars (which he will NOT get back), thinking he is out on bond for the remainder of the case. A week or two later, he comes into court and gets taken into custody.

This is a glitch in the system that really needs to be addressed. I have had families that have depleted almost their entire savings to bail their son out, only to lose it two weeks later. And the maddening thing is, that most of the time, the reason for the higher bail was known at the time of the original arrest.

That may seem like a little thing to you, but I can assure you it is not for my clients, most of the time.

I could write pages and pages of injustices I have seen. It's still a great system. I have tried hundreds of jury trials. I can only think of one where I disagreed with the verdict when it was all over.

 

[George Costanza]

I'm not sure he can't. Generally, prosecutors are immune from civil suits for misfeasance in the course of their regular employment, i.e., prosecuting people. But I think that, in aggravated cases, they CAN be held personally liable. To be honest, I haven't read the entire opinion yet - I THINK it mainly is protective of the governmental body the prosecutor was working for. I'll check into it a little further and see what happened to the prosecutor himself. Good question.

the award was based on the misfeasance of not training the prosecutors in when they needed to turn over brady material.

I'm sorry but I thought training prosecutors and defense attorneys would be the job of law schools and continuing education?

You know, I sstarted to answer this and then something intervened. Sorry.

Good question. Several others have asked the same question in various ways. The decision in the Thompson case discusses this - at least the dissent does. Yes, training lawyers is indeed the job of law schools and continuing education. However, when it comes to education about Brady v. Maryland, it seems that neither law schools nor the DA's office in fact offered much instruction along that line.

Brady is an essential aspect of the criminal law. When Brady violations happen, results such as what happened to Mr. Thompson can happen - 18 years in prison needlessly. The argument in Thompson was, that, de facto, the prosecutors in this case were NOT aware of Brady or, if they were, not to a sufficient enough extent to actually abide by Brady's requirements. And, when this is the case, a duty arises on behalf of the DA's office to rectify the situation.

The argument in Thompson is that the DA's office cannot escape responsibility for Brady violations by sloughing it off on the failure of law schools and continuing education to properly educate lawyers in this regard. The Supremes agree with this - they just say, in this case, that before liability attaches, there has to be sufficient evidence of a PATTERN of Brady violations, as opposed to a single instance. In this case, they held there was not enough evidence to establish the requisite pattern.

The dissent disagrees with this (obvilously) and so do I. Unfortunately, neither of us has too much clout.

 

[Lonestar_logic]

OK, good buddy. Everyone has a right to their opinion. You've obviously got yours here.

Mine is that there are parts of the system that are in need of repair. That does not mean the whole system is bad. Sorry my commenting on what I consider glitches in the system, seems to upset you. You suggest that I leave this country if I don't like it. I would suggest that you not read my posts on the subject if you don't like those - or, better yet, address the issues rather than resorting to logical fallacies in response.

Well, you can't have it both ways. You say it's the best in the woirld, yet it needs some repairs.

I suppose the best in the world isn't good enough or up to your standards.

But for the sake of argument , what exactly needs repairing and how would you suggest we repair it.

Oh, golly - there are many things, most of which are things that I have to deal with on a daily basis in my own court. I'll give you one example.

When a person gets arrested, they can post bail at the police station, based on a standard bail schedule. For example: get busted for possession of meth, the jailhouse bail is 20K. OK - the guy posts bond at the police station. Costs him two grand, with a bondsman (10%). Now the DA gets ahold of the case and files charges. In reading the police report, the DA spots maybe one or two additional charges that might be filed, so he adds them in to the Complaint.

Now, the guy comes to court (walking in the front door because he is on the 20K bond he previously posted) to be arraigned on the charges. NOW, however, the bail is 50K, due to the charges that were added by the DA when he filed the case. (The more charges, the higher the bail.) The judge takes the defendant into custody because his bail is insufficieint. He has only posted 20K - now, the required bond is 50K. He is 30K short.

All right - I suppose, on its face, this is Kosher. After all, bond should be based on the charges. But look what has happened here - the poor bastard had to part company with two thousand dollars (which he will NOT get back), thinking he is out on bond for the remainder of the case. A week or two later, he comes into court and gets taken into custody.

This is a glitch in the system that really needs to be addressed. I have had families that have depleted almost their entire savings to bail their son out, only to lose it two weeks later. And the maddening thing is, that most of the time, the reason for the higher bail was known at the time of the original arrest.

That may seem like a little thing to you, but I can assure you it is not for my clients, most of the time.

I could write pages and pages of injustices I have seen. It's still a great system. I have tried hundreds of jury trials. I can only think of one where I disagreed with the verdict when it was all over.

Well if you work anywhere near a court then you should know the police doesn't set bail. The person arrested must be arraigned in front of a magistrate who then sets bail. But it seems the problem in this case lies with the police failing to charge the defendent sufficiently.

The injustices you allege or not the fault of the system. The police dropped the ball and failed to sufficiently charge the guy, the DA saw the oversight and corrected it. No injustice was done in this particular case.

FTR, If my son ever went to jail, he'd be on his own (and he knows it) . I woulnd't lift a finger to get him bailed out.

 

[George Costanza]

Given that, and the fact that as an officer of the court the lawyer himself has a personal ethical responsibility to keep himself aprized of the law and procedures which can effect his liscensing (which since he still has when hired the presumption would be that he hasn't acted contradictory to) what other due dilligence should the town have done? Does the town even have a duty to train him at all?

Yes, they do. When a police officer on a city police force, beats suspects up and generally misbehaves, the city continues to employ him at their peril. He might be able to get away with it once, but not a number of times. If it happens a number of times, the city cannot be heard to say they were unaware of it. They will be liable for his actions.

Same thing here. The city has a duty to make sure that their prosecutors are up on the Brady requirements and that they abide by them. Failure to do so can result in HUGE judgements agains the city for wrongfully imprisoned people - such as Mr. Thompson.

Don't forget, the Supremes are not saying that cities cannot be sued for malfeasance of prosecutors by not adhering to Brady. All they are saying is that, IN THIS PARTICULAR CASE, liability does not attach because there is not enough evidence of a continued pattern of Brady violations.

 

[George Costanza]

Well, you can't have it both ways. You say it's the best in the woirld, yet it needs some repairs.

I suppose the best in the world isn't good enough or up to your standards.

But for the sake of argument , what exactly needs repairing and how would you suggest we repair it.

Oh, golly - there are many things, most of which are things that I have to deal with on a daily basis in my own court. I'll give you one example.

When a person gets arrested, they can post bail at the police station, based on a standard bail schedule. For example: get busted for possession of meth, the jailhouse bail is 20K. OK - the guy posts bond at the police station. Costs him two grand, with a bondsman (10%). Now the DA gets ahold of the case and files charges. In reading the police report, the DA spots maybe one or two additional charges that might be filed, so he adds them in to the Complaint.

Now, the guy comes to court (walking in the front door because he is on the 20K bond he previously posted) to be arraigned on the charges. NOW, however, the bail is 50K, due to the charges that were added by the DA when he filed the case. (The more charges, the higher the bail.) The judge takes the defendant into custody because his bail is insufficieint. He has only posted 20K - now, the required bond is 50K. He is 30K short.

All right - I suppose, on its face, this is Kosher. After all, bond should be based on the charges. But look what has happened here - the poor bastard had to part company with two thousand dollars (which he will NOT get back), thinking he is out on bond for the remainder of the case. A week or two later, he comes into court and gets taken into custody.

This is a glitch in the system that really needs to be addressed. I have had families that have depleted almost their entire savings to bail their son out, only to lose it two weeks later. And the maddening thing is, that most of the time, the reason for the higher bail was known at the time of the original arrest.

That may seem like a little thing to you, but I can assure you it is not for my clients, most of the time.

I could write pages and pages of injustices I have seen. It's still a great system. I have tried hundreds of jury trials. I can only think of one where I disagreed with the verdict when it was all over.

Well if you work anywhere near a court then you should know the police doesn't set bail. The person arrested must be arraigned in front of a magistrate who then sets bail. But it seems the problem in this case lies with the police failing to charge the defendent sufficiently.

In my jurisdiction, police DO "set bail" initially. As I said, suspects can bail out from the police station at the time of arrest. Bail is set by the bail schedule, which the police use.

Once they bail out at the police station, their arraignment is usually set two or three weeks off. Since they are out on bail, there is no issue as to speedy arraignment.

Many times the police do not have the facilities to know all of the facts that will lead to the ultimate charges. Suppose the guy has strike priors? The cops don't know about those. It's four in the morning. They have no way of finding out anything except what the guy was arrested for. When he finally comes to court, the existence of strike priors can increase his bail amount ten-fold.

The injustices you allege or not the fault of the system. The police dropped the ball and failed to sufficiently charge the guy, the DA saw the oversight and corrected it. No injustice was done in this particular case.

Yes, this particular injustice is entirely the fault of the system. A procedure is established that makes it inevitable, most of the time, that the defendant is going to get screwed when it comes to posting bail money.

FTR, If my son ever went to jail, he'd be on his own (and he knows it) . I woulnd't lift a finger to get him bailed out.

Different issue. And I would submit that you might want to wait until it actually happens (and I sincerely hope it does not) before making a statement like this. Jail is generally not a very nice place.

 

[Quantum Windbag]

I disagree with both the result and the logic.

One must ask, WHY was the city unaware of the lack? Shouldn't the city be charged with the responsibility of MONITORING the state of training on a critical thing such as this (just look at the result when the lack of training puts a guy away for 18 years!) and providing that training if it is lacking?

I'm sure you have heard of the phrase, "knew, or should have known." There are situations where even though a party was unaware of something, the law still imposes upon them the responsibility of knowing, i.e., they "should have known" and so, the defense of "I didn't know" doesn't get them off the hook.

Criminal discovery itself is a good example. The police possess information that should be turned over to the defense. They don't turn it over to the prosecutor. When the prosecutor is called on the line for failing to turn over discovery, he cannot be heard to say, "I didn't know it existed - the police had failed to inform me." Discovery in the hands of the police is DEEMED to be also in the hands of the prosecutor, i.e., he is CHARGED WITH the responsibility of getting everything from the police and turning it over to the defense.

So it is here with the city. "We didn't know there was a lack of training." Oh, yeah - well guess what, Mojambo - it is your responsibility to know what the state of training is, and to take action to bring it up to speed if it is lacking. Your failure to do that means you are going to have to compensate Mr. Thompson.

That is what the decision SHOULD have said.

I tend to agree, but the law said that the only way that he could win is if there was a pattern of misconduct. One case does not make a pattern, that makes the problem with the law, not the court that followed it. Just because SCOTUS comes down with a decision I do not like, it does not mean they are ignoring the law, which they did in Kelo.

Take a look at the dissent and/or my post summarizing the dissent, above (somewhere). Jusice Ginsburg says this is not "one case." She points out that the record establishes more than sufficient enough of a pattern of Brady violations to trigger liability, entirely within this single case alone. It wasn't just withholding the results of the blood test.

The majority simply interpreted the evidence differently - an entirely subjective call that (golly, big surprise) went in favor of the Big Guy and screwed the Little Guy.

Yes I did, and I also read Alito's response to the dissent.

The dissent defers consideration of this question until
page 23 of its opinion. It first devotes considerable space
to allegations that Connick’s prosecutors misunderstood
Brady when asked about it at trial, see post, at 16–18
(opinion of GINSBURG, J.), and to supposed gaps in the
Brady guidance provided by Connick’s office to prosecu-
tors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual pub-
lished by Connick’s office three years after Thompson’s
trial, see post, at 18–21. None of that is relevant. Thomp-
son’s failure-to-train theory at trial was not based on a
pervasive culture of indifference to Brady, but rather on
the inevitability of mistakes over enough iterations of
criminal trials. The District Court instructed the jury it
could find Connick deliberately indifferent if:
“First: The District Attorney was certain that prosecu-
tors would confront the situation where they would
have to decide which evidence was required by the
constitution to be provided to an accused[;]
“Second: The situation involved a difficult choice, or
one that prosecutors had a history of mishandling,
such that additional training, supervision, or monitor-
ing was clearly needed[; and]
“Third: The wrong choice by a prosecutor in that
situation will frequently cause a deprivation of an ac-
cused’s constitutional rights.” App. 828.
That theory of deliberate indifference would repeal the
law of Monell1 in favor of the Law of Large Numbers.
Brady mistakes are inevitable. So are all species of error
routinely confronted by prosecutors: authorizing a bad
warrant; losing a Batson2 claim; crossing the line in clos-
ing argument; or eliciting hearsay that violates the Con-
frontation Clause. Nevertheless, we do not have “de facto
respondeat superior liability,” Canton, 489 U. S., at 392,
for each such violation under the rubric of failure-to-train
simply because the municipality does not have a profes-
sional educational program covering the specific violation
in sufficient depth.3

http://www.supremecourt.gov/opinions/10pdf/09-571.pdf

It was one case, despite the assertion from Ginsburg that it was not. She was assuming facts not in evidence.

As I have said, I agree with her, and you. That does not make this decision wrong, even if I want it to be. It followed established precedent and was decided on the law, not the facts, or anyone's interpretation of the facts.

 

[George Costanza]

I tend to agree, but the law said that the only way that he could win is if there was a pattern of misconduct. One case does not make a pattern, that makes the problem with the law, not the court that followed it. Just because SCOTUS comes down with a decision I do not like, it does not mean they are ignoring the law, which they did in Kelo.

Take a look at the dissent and/or my post summarizing the dissent, above (somewhere). Jusice Ginsburg says this is not "one case." She points out that the record establishes more than sufficient enough of a pattern of Brady violations to trigger liability, entirely within this single case alone. It wasn't just withholding the results of the blood test.

The majority simply interpreted the evidence differently - an entirely subjective call that (golly, big surprise) went in favor of the Big Guy and screwed the Little Guy.

Yes I did, and I also read Alito's response to the dissent.

The dissent defers consideration of this question until
page 23 of its opinion. It first devotes considerable space
to allegations that Connick’s prosecutors misunderstood
Brady when asked about it at trial, see post, at 16–18
(opinion of GINSBURG, J.), and to supposed gaps in the
Brady guidance provided by Connick’s office to prosecu-
tors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual pub-
lished by Connick’s office three years after Thompson’s
trial, see post, at 18–21. None of that is relevant. Thomp-
son’s failure-to-train theory at trial was not based on a
pervasive culture of indifference to Brady, but rather on
the inevitability of mistakes over enough iterations of
criminal trials. The District Court instructed the jury it
could find Connick deliberately indifferent if:
“First: The District Attorney was certain that prosecu-
tors would confront the situation where they would
have to decide which evidence was required by the
constitution to be provided to an accused[;]
“Second: The situation involved a difficult choice, or
one that prosecutors had a history of mishandling,
such that additional training, supervision, or monitor-
ing was clearly needed[; and]
“Third: The wrong choice by a prosecutor in that
situation will frequently cause a deprivation of an ac-
cused’s constitutional rights.” App. 828.
That theory of deliberate indifference would repeal the
law of Monell1 in favor of the Law of Large Numbers.
Brady mistakes are inevitable. So are all species of error
routinely confronted by prosecutors: authorizing a bad
warrant; losing a Batson2 claim; crossing the line in clos-
ing argument; or eliciting hearsay that violates the Con-
frontation Clause. Nevertheless, we do not have “de facto
respondeat superior liability,” Canton, 489 U. S., at 392,
for each such violation under the rubric of failure-to-train
simply because the municipality does not have a profes-
sional educational program covering the specific violation
in sufficient depth.3

http://www.supremecourt.gov/opinions/10pdf/09-571.pdf

It was one case, despite the assertion from Ginsburg that it was not. She was assuming facts not in evidence.

As I have said, I agree with her, and you. That does not make this decision wrong, even if I want it to be. It followed established precedent and was decided on the law, not the facts, or anyone's interpretation of the facts.

Will you agree with me that deciding whether or not the facts showed a sufficient enough "pattern of indifference" was a subjective call?

 

[Quantum Windbag]

Take a look at the dissent and/or my post summarizing the dissent, above (somewhere). Jusice Ginsburg says this is not "one case." She points out that the record establishes more than sufficient enough of a pattern of Brady violations to trigger liability, entirely within this single case alone. It wasn't just withholding the results of the blood test.

The majority simply interpreted the evidence differently - an entirely subjective call that (golly, big surprise) went in favor of the Big Guy and screwed the Little Guy.

Yes I did, and I also read Alito's response to the dissent.

The dissent defers consideration of this question until
page 23 of its opinion. It first devotes considerable space
to allegations that Connick’s prosecutors misunderstood
Brady when asked about it at trial, see post, at 16–18
(opinion of GINSBURG, J.), and to supposed gaps in the
Brady guidance provided by Connick’s office to prosecu-
tors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual pub-
lished by Connick’s office three years after Thompson’s
trial, see post, at 18–21. None of that is relevant. Thomp-
son’s failure-to-train theory at trial was not based on a
pervasive culture of indifference to Brady, but rather on
the inevitability of mistakes over enough iterations of
criminal trials. The District Court instructed the jury it
could find Connick deliberately indifferent if:
“First: The District Attorney was certain that prosecu-
tors would confront the situation where they would
have to decide which evidence was required by the
constitution to be provided to an accused[;]
“Second: The situation involved a difficult choice, or
one that prosecutors had a history of mishandling,
such that additional training, supervision, or monitor-
ing was clearly needed[; and]
“Third: The wrong choice by a prosecutor in that
situation will frequently cause a deprivation of an ac-
cused’s constitutional rights.” App. 828.
That theory of deliberate indifference would repeal the
law of Monell1 in favor of the Law of Large Numbers.
Brady mistakes are inevitable. So are all species of error
routinely confronted by prosecutors: authorizing a bad
warrant; losing a Batson2 claim; crossing the line in clos-
ing argument; or eliciting hearsay that violates the Con-
frontation Clause. Nevertheless, we do not have “de facto
respondeat superior liability,” Canton, 489 U. S., at 392,
for each such violation under the rubric of failure-to-train
simply because the municipality does not have a profes-
sional educational program covering the specific violation
in sufficient depth.3

http://www.supremecourt.gov/opinions/10pdf/09-571.pdf

It was one case, despite the assertion from Ginsburg that it was not. She was assuming facts not in evidence.

As I have said, I agree with her, and you. That does not make this decision wrong, even if I want it to be. It followed established precedent and was decided on the law, not the facts, or anyone's interpretation of the facts.

Will you agree with me that deciding whether or not the facts showed a sufficient enough "pattern of indifference" was a subjective call?

Yes I will. Like I said, I believe that there was a pattern of misconduct that rose to deliberate malfeasance.

 

[BenNatuf]

Ginsberg is an idiot, the withholding of all of the evedence constitutes a single brady violation, not a violation for each piece of it.

I disagree. The Brady violations here were separate, both as to content and as to time.

there was one trial and one set of evedence. Your disagreement is irrelevant

And Ginsburg is an "idiot"? I hope you are speaking figuratively here.

Ginsburg is and always has been an idiot

They are required to turn over all exculpitory evedence, not each exculpitory evedence.

You might want to rethink that sentence.

Not really. Discovery is a singular event. Everything is covered at one time. Any new evedence uncovered after discovery is added to it, not seperate from it.

And the training (which shouldn't be required for liscenced proffessionals to begin with as they have a personal ethical responsibility to make themselves aware of the law) is a single instance of not provided training.

Again, I think not.

again, what you think is irrelevant.

 

[George Costanza]

The District Court instructed the jury it
could find Connick deliberately indifferent if: “First: The District Attorney was certain that prosecutors would confront the situation where they would have to decide which evidence was required by the constitution to be provided to an accused

What the hell does this mean? Imagine that you were a juror in the District Court, trying to decide whether or not to award money to Mr. Thompson, and you got hit with an instruction such as this one.

After several readings, I was able to determine that the judge's extremely poor choice of the word, "confront" probably means "come across" or "encounter." But even establishing that, what does the rest of it mean?

You can find deliberate indifference if you find that the District Attorney was certain that the prosecutors working under him would come across "the situation" (not "situations"?) where they would have to make a decision as to whether to fork over Brady evidence or not.

I think I know what the judge is trying to impart here, but I submit he could have done so in a much simpler way. I think this confused the jury. It confused me.

How about . . .

"You can find deliberate indifference if you find that the deputy district attorneys working under Connick would encounter situations where it was not clear whether they would have to turn Brady material over to the defense or not, and Connick was aware that his deputy DA's would run into such situations."

Alito's analogizing to situations where DA's will commit other types of common errors, such as going over the line during closing argument, committing Batson error, authorizing a bad warrant, eliciting error that violates the Confrontation Clause and, in such cases, no one thinks of imposing vicarious liability on the governmental body behind the DA's office if harm results - at first glance, this is a seemingly strong argument.

But I would argue that Brady error is a cut above (or below, depending on your point of view) these other types of errors. Brady error holds the potential for exactly what happened to Mr. Thompson, much more so than the other types of errors alluded to by Alito. Brady is a potential time bomb. As such, I think it should be treated differently and if we have a DA's office that violates Brady, and harm such as that we have in this case results, I think liability should extend upwards.

Notice that no one talked about negligent hiring in the first instance here? Oh well.

 

[George Costanza]

Ginsberg is an idiot, the withholding of all of the evedence constitutes a single brady violation, not a violation for each piece of it.

I disagree. The Brady violations here were separate, both as to content and as to time.

there was one trial and one set of evedence. Your disagreement is irrelevant

Ginsburg is and always has been an idiot

Not really. Discovery is a singular event. Everything is covered at one time. Any new evedence uncovered after discovery is added to it, not seperate from it.

And the training (which shouldn't be required for liscenced proffessionals to begin with as they have a personal ethical responsibility to make themselves aware of the law) is a single instance of not provided training.

Again, I think not.

again, what you think is irrelevant.

I'm sorry. I thought we were having a rational discussion here. I see I was mistaken.

 

[jillian]

I'm sorry. I thought we were having a rational discussion here. I see I was mistaken.

ah... you finally figured him out. lol..

 

[George Costanza]

Yes I did, and I also read Alito's response to the dissent.

http://www.supremecourt.gov/opinions/10pdf/09-571.pdf

It was one case, despite the assertion from Ginsburg that it was not. She was assuming facts not in evidence.

As I have said, I agree with her, and you. That does not make this decision wrong, even if I want it to be. It followed established precedent and was decided on the law, not the facts, or anyone's interpretation of the facts.

Will you agree with me that deciding whether or not the facts showed a sufficient enough "pattern of indifference" was a subjective call?

Yes I will. Like I said, I believe that there was a pattern of misconduct that rose to deliberate malfeasance.

OK - when you couple that (subjective call) with the fact that four of the Court's conservative justices concurred in the majority opinion, and top it off with the fact that the end result is protecting The Man from liability owed to Mr. Thompson ( a Little Guy), can you see how someone might think that there is a hidden agenda floating around here somewhere? A hidden agenda designet to further an interest that is much more consistent with conservative principles than liberal principles?

 

[boedicca]

I hope Georgie is correct and that we really do have a Right Wing Supreme Court - the sooner they overturn ObamaCare The Better!

 

[George Costanza]

I'm sorry. I thought we were having a rational discussion here. I see I was mistaken.

ah... you finally figured him out. lol..

Oh, I've dealt with him before. But I'm kind of like Linus when it comes to kicking the football that Lucy is holding for him. Whenever they act like maybe they can be civil and rational, I always fall for it.

They never fail me in the long run, though.

 

[BenNatuf]

Given that, and the fact that as an officer of the court the lawyer himself has a personal ethical responsibility to keep himself aprized of the law and procedures which can effect his liscensing (which since he still has when hired the presumption would be that he hasn't acted contradictory to) what other due dilligence should the town have done? Does the town even have a duty to train him at all?

Yes, they do.

no, they do not. Gee, that was easy

When a police officer on a city police force, beats suspects up and generally misbehaves, the city continues to employ him at their peril. He might be able to get away with it once, but not a number of times. If it happens a number of times, the city cannot be heard to say they were unaware of it. They will be liable for his actions.

That would comprise many seperate violations, not one violation for each kick in one beatdown. That would be kind of the point. However, there is a difference between a police officer and the towns duty to train them, and the supposed duty of the town to train a person who has an ethical responsibility to keep themselves aprised of the law, and who is a proffessional liscenced by the state.

Same thing here. The city has a duty to make sure that their prosecutors are up on the Brady requirements and that they abide by them. Failure to do so can result in HUGE judgements agains the city for wrongfully imprisoned people - such as Mr. Thompson.

evidently... not. and evidently somebody agrees with me

Failure to train prosecutors intheir Brady obligations does not fall within the narrow range of Can-ton’s hypothesized single-incident liability

http://www.supremecourt.gov/opinions/10pdf/09-571.pdf

Don't forget, the Supremes are not saying that cities cannot be sued for malfeasance of prosecutors by not adhering to Brady. All they are saying is that, IN THIS PARTICULAR CASE, liability does not attach because there is not enough evidence of a continued pattern of Brady violations.

True. And like you in this case, if they decided it did in another case, I would disagree with them, with one exception, that being the DA's office already has one Brady violation, then yes, the town becomes aware of the problem and does have a duty to avcoid liability due to negligence. Without that, no.

 

[George Costanza]

I hope Georgie is correct and that we really do have a Right Wing Supreme Court - the sooner they overturn ObamaCare The Better!

Oh, go back to your damn Walmard thread!