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Sherrilyn Ifill: SCOTUS, Prosecutorial Misconduct, and Public Confidence in the Justice System

October 14, 2010

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By **Sherrilyn Ifill**

There’s a story to be told from the intense media focus on last week’s Snyder v. Phelps case in the Supreme Court. To be sure, the case—involving a challenge by the father of a slain serviceman to protests conducted by a fringe religious organization at his son’s funeral—is an important one in which the Court may provide importance guidance on the reach of the First Amendment. The protests at the military funerals, in which followers of the Westboro Baptist “church,” hold up signs that celebrate the death of U.S. soldiers in Iraq and Afghanistan, which Westboro members regard as a punishment for what they believe is U.S. tolerance of gays in the military—are repulsive by almost any sane standard. Given the lurid facts of the case, and the tension between our sympathy for Alfred Snyder and our traditional robust protection of even repulsive speech under the First Amendment, it’s perhaps not surprising that almost every major news outlet and Supreme Court blog reported on last Thursday’s oral argument.

But it’s telling that on the same day Snyder was argued, the Court also heard oral argument in Connick v. Thompson—a case with considerably more concrete implications for the lives of thousands of criminal defendants. In Connick, the Court will decide whether a man who was convicted of capital murder and held in solitary confinement on death row for fourteen years can hold a prosecutor’s office civilly liable for violating his constitutional rights by withholding exculpatory evidence from defense counsel and failing to train prosecutors in their obligation to furnish this information to defense counsel. The obligation of prosecutors to turn over such evidence to defense counsel was first established by the Supreme Court in 1963. But the New Orleans district attorney’s office argues in Connick that it cannot be held liable for a single incident of violating Brady. Instead, the prosecutor argues that they can only be held liable if it is demonstrated that they engaged in a pattern of withholding such evidence. In other words, only if we repeatedly violated the Constitution can we be compelled to pay for allowing an innocent man to be imprisoned and almost executed.

When the victims are prominent and white—as in the case of the Duke lacrosse team members accused of rape—prosecutorial misconduct makes an intense, but still too-brief appearance on the front pages of our newspapers.

With the exception of an article I wrote for The Root, and an in-depth treatment by John Hollway in SLATE, (Hollway’s book on the Thompson case has just been released) the oral argument in Connick escaped media and Supreme Court blog attention. And this is its own story. Connick (like last year’s Pottawattamie, IA v. McGhee case) is a case that peels back the cover on an aspect of the criminal justice system that is too little examined in the mainstream media, and is unfortunately too well-known to many African Americans. The willingness of some prosecutors to withhold evidence that would likely exculpate criminal defendants, or as in the Pottawattamie case, to deliberately fabricate evidence to frame criminal suspects is a reality of our criminal justice system. The fact that these instances are rare compared to the thousands of cases in which prosecutors act ethically, makes them no less corrosive of public confidence in our justice system. That the victims of this kind of misconduct are often African Americans adds yet another layer of ugliness that further complicates the public response. Unfortunately, it may also explain why these stories—even when they make it to the Supreme Court—get so little attention. When the victims are prominent and white—as in the case of the Duke lacrosse team members accused of rape—prosecutorial misconduct makes an intense, but still too-brief appearance on the front pages of our newspapers.

How the Court resolves the Connick case will have a powerful effect on public confidence in the justice system—especially for African Americans. It is one thing to know that some prosecutors will violate their oath of office and violate the constitutional rights of criminal defendants. It’s quite another for the highest court in the land to suggest that prosecutors can do so with impunity.

And judging by last Thursday’s argument, our Supreme Court may do just that. If the hostility of several of the justices—especially Justices Alito and Scalia—to Thompson’s claim is anything to go by, it’s likely that Thompson will never collect on the fourteen million dollars the jury awarded him for the time he spent in prison. Even Justice Sotomayor—a former prosecutor who knows something about proper training techniques for prosecutors—seemed side-tracked by Justice Alito’s insistence that Thompson’s attorney simulate on the spot the full training that should have been provided by District Attorney Connick to the prosecutors working under his supervision.

But without question the most disturbing aspect of the argument was the failure of any of the justices over the course of the hour—or either counsel for that matter—to make reference to Mr. Thompson himself, or what he suffered during his fourteen years on death row for a crime he didn’t commit. To read the transcript of the argument in this case, is to confront the indifference and cynicism that so often characterizes our society’s response to gross and inhumane constitutional violations in the criminal justice system. A man’s life was stolen because of the unconstitutional conduct of state actors. And still Justice Scalia’s most biting and obnoxious remarks disparaging Thompson’s arguments were greeted by the assembled spectators with laughter.

For this reason, Connick is one of the most important cases the Court will decide this year. We cannot decry the state of criminal violence in some of our cities, without acknowledging how corruption in the justice system contributes to our inability to invest all of our citizens in cooperating with and supporting the efforts of the thousands of honest cops and prosecutors who legitimately seek to protect our communities and serve justice. And these concerns should merit at least a few lines in our nation’s papers as they review the Supreme Court’s work this year.

Copyright 2010 Sherrilyn Ifill

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This post originally appeared at Beaconbroadside.com

Sherrilyn Ifill is a professor at the University of Maryland School of Law, and is nationally recognized as an advocate in the areas of civil rights, voting rights, judicial diversity and judicial decision-making. Ifill is the author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century.

To read blog entries from Sherrilyn Ifill and others at GUERNICA click HERE .

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