Forget the Financial Settlement. Why Aren't These Guys on Trial for Attempted Murder?

This is just a sick, scary, amazing story of a man who came within days of execution because prosecutors knowingly withheld exculpatory evidence.  And not something arcane and equivocal, but blood tests that were the wrong type and witness testimony that contradicted the main witness.

The Supreme Court has upheld the effective immunity of prosecutors from any penalties for not following the most basic rules.  Forget sanctions or lost law licenses - why aren't these prosecutors on trial for attempted murder?  Obviously, with the Supreme Court decision a legislative solution is required, but don't hold your breath -- there is nothing more bipartisan than being "tough on crime" when running for re-election so it is unlikely any safeguards of defendants will be improved.


  1. Maddog:

    I have long lobbied for a law which would subject prosecutors in this or similar situation to the penalty the defendant would have been subjected to if convicted (but not the death penalty). The problem today is the incentives are to cheat particularly in more serious criminal cases, because conviction rate is so important to the advancement of the junior prosecutor.

    Such a penalty would be proportional and likely to correct the misallocation of incentives found in the current system.

    Mark Sherman

  2. anon:

    Warren, did you notice the DA is the father of the singer, Harry Connick, Jr.?

    Not kidding.

  3. Dan:

    That was a very effective piece that really raised my consciousness about the U.S. justice system.

  4. Dr. T:

    The U. S. Supreme Court decision is being mischaracterized. The majority ruled (correctly, in my opinion) that the federal government had no authority to override the state or local laws regarding prosecutors. The Constitution requires a trial before a jury of ones peers (which Mr. Thompson had), but it offers no protection against prosecutorial misconduct. Federal laws and regulations cover misconduct of federal prosecutors, but that was irrelevant in this case. Louisiana has not made prosecutorial withholding of evidence a crime, and Louisiana grants its prosecutors absolute immunity from lawsuits. The same is true of Orleans Parish. Many other states, counties, and cities have similar protections for prosecutors and law enforcement personnel.

    Fixing this at all the local levels would be hard, but the alternative, a constitutional amendment, would be harder.

  5. Roy:

    While understanding the logic of Dr T's point and sympathetic to it, still a tilt here. Yes, its would prove difficult to obtain prosecutors if there did not exist some sort of protection in case of error. But these prosecutors did not make a mistake.

    Deuteronomy 19:16-21 provides a principle to handle the situation.

  6. John Moore:

    The Feds used a nasty trick (civil rights laws) to get around double jeopardy in the Rodney King case. Maybe they can use it here against the prosecutors. At least it would, for once, be useful.

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  10. andre:

    There is precedent for treating gov't attorneys (prosecutors) differently from private ones (defense attorneys) - it's the US Constitution. The Bill of Rights prohibits the gov't from certain actions, but not citizens. I have no problem with a different set of rules for prosecutors. Their purpose is to get to the truth, not win a case. They should under no circumstances be allowed to suppress or withhold evidence. If it is ever discovered that one did, disbarment should be mandatory, and should be the least of the punishments.

  11. caseyboy:

    Roy, I couldn't agree more. A little Old Testament law would do the trick.

  12. Smock Puppet:

    > Deuteronomy 19:16-21 provides a principle to handle the situation

    I think The Red Queen had a much better and simpler one.


  13. Roy:

    @casey & Smock: glad to see you read the text ;^D

    I posted it primarily to demonstrate that at least one ancient source believed lying in courtrooms demanded serious restraints built directly into the legal system. Secondarily, of course, follows the recognition that absent such restraint stuff happens similar to that noted by Coyote's essay.

    As to Smock's Red Queen, the proper response is afdaju afa8i jutkoqr;fa!!

  14. IgotBupkis, President, United Anarchist Society:

    No, the simple fact is, think about it -- if the defense puts a witness on the stand they know to be perjuring themselves, they can get in real trouble, too. As I understand it, if you tell your attorney you are guilty of the crime, he is legally required to NOT allow you to plead "Not Guilty" (though I suspect this is ignored by many unscrupulous defense attorneys) In general, as a defendant, you aren't allowed to lie under oath, or to misrepresent the truth by omission or other means.

    Again, why should the prosecution -- that is to say, the government -- NOT be bound by most of the same rules as the plebes? There may be a need for special exceptions in certain areas of The Law which give special powers or exceptions to the government, and its officers, but for the most part, the government ought to be bound by the exact same rule set that binds the governed.

    An obvious example of this, mentioned in another thread, is the notion of GAAP -- generally accepted accounting practices -- which all governments should be held to when it comes to accounting and so forth. The amount of chicanery and folderol that would be stopped by this simple limit is downright phenomenal.

    I see no justification for making prosecutors immune from prosecutorial misconduct charges if they violate the rules of evidentiary procedure and so forth in the course of a prosecution.

  15. IgotBupkis, President, United Anarchist Society:

    Minor correction:
    I see no justification for making prosecutors immune from prosecutorial misconduct charges if they knowingly violate the rules of evidentiary procedure and so forth in the course of a prosecution.

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