0:00:01.0 S?: We'll hear argument next in case 09571, Connick v. Thompson. Mr. Duncan.

0:00:09.5 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are discussing Connick v. Thompson. In this case, John Thompson was falsely accused of two separate crimes, a high-profile murder and armed robbery. He was convicted of both after the prosecution systematically withheld evidence that could have proven his innocence.

0:00:31.2 S?: At the age of 22 I hadn't had a conviction, I hadn't had a real serious record. So the system had to make me out a monster.

0:00:38.4 Leon: The prosecution also used a scheduling maneuver to ensure that Thompson would not be able to testify in his own defense.

0:00:45.7 S?: I spent 18 years of my life in prison. Fourteen of them was on death row. While on death row, I received seven execution dates.

0:00:52.3 Leon: With less than 30 days before Thompson's final execution date, a private investigator discovered evidence that cast doubt on the convictions. Thompson was eventually exonerated and released from prison. He then sued the district attorney for damages and he won, and a jury awarded him $14 million. But then the Supreme Court overturned the jury's decision.

0:01:13.6 S?: The prosecutors get away with it, and this is murder, this is attempted murder. If you try to kill a person and you know he is innocent, and you try to think execution dates to murder him, that is attempted murder.

0:01:27.7 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:33.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our civil rights weak and emaciated, like a cat on a vegan diet. I am Peter, I'm here with Michael...

0:01:47.8 Michael: Hey, everybody.

0:01:49.6 Peter: And Rhiannon.

0:01:50.9 Rhiannon: Hi. Have I ever told you guys about the boss that I had who was a vegetarian and made sure that her dog ate vegetarian?

0:01:57.4 Michael: Oh, God.

0:01:58.7 Rhiannon: Okay, well, yeah, there's a sad story there.

0:02:01.8 Peter: We're risking losing some listeners with that one.

0:02:04.4 Rhiannon: Go on. What are we here for today?

0:02:06.3 Peter: Well, today's case is Connick v. Thompson, but before we get into the case, I think we need to talk current events...

0:02:13.5 Rhiannon: Yeah, there's some really hot stuff.

0:02:15.8 Peter: There is. Now, we're, look, a little bit, a couple of weeks behind the ball here, but a couple of weeks ago, there was a Georgetown professor, Sandra Sellers, who was terminated for doing racism on a Zoom chat, talked about the relative performance of her black students in a way that some people would think was not the best way to talk about it, you know?

0:02:41.1 Rhiannon: Sure, yeah.

0:02:41.1 Peter: And another Professor, David Batson, was there, just sort of nodding along, and this resulted in the Georgetown administration finding out, firing Professor Sellers, and I think Batson either stepped down or was told to resign shortly thereafter. Now, many of our listeners, if you're tuned in the legal world, might have heard about that. What you might not have heard is that we did it, we're actually the ones who did it. A Georgetown student in our Slack posted the video of the racism happening. He said, yeah, some Georgetown students are discussing this. And we made a coordinated effort to boost it and the next day, heads were rolling. Blood was spilled. So I just want to take this time to, first of all, stand in awe of our collective power and celebrate the enormity of what we've achieved.

0:03:36.0 Peter: If you had told me a year ago when we started this podcast that we were getting professors fired, I would say that's all I ever wanted to do.

0:03:45.9 Rhiannon: Right, right, but it still seemed like a very distant sort of goal. Like yeah, that sounds great, but that's not possible.

0:03:53.2 Peter: And now it feels like we're just beginning, and our goal and our promise to you, our listeners, is that we'll get them all fired.

0:04:02.0 Rhiannon: We will not rest until legal academia has been laid to waste.

0:04:08.8 Peter: Yeah, and if you want to join our effort, join our Patreon at the arch enemy tier, which gives you access to our Slack where we will together conspire to have your professors fired. Patreon.com/fivefourpod.

0:04:25.8 Michael: You too can do this service for your country.

0:04:31.0 Peter: Anyway, today's case like I said, like I said, is Connick v. Thompson. This is a case about prosecutors...

0:04:38.3 Rhiannon: Boo!

0:04:41.4 Michael: If you follow the law at all, you've probably heard stories of prosecutors abusing their position, withholding or ignoring exculpatory evidence, introducing false or questionable evidence, discriminating in prosecution or jury selection, on and on and on and on. And perhaps you've asked yourself or others, what can be done about such shenanigans. Are prosecutors ever held responsible for this sort of misconduct or, alternatively, are they insulated from repercussions because they are not, as they claim, representatives of the people, but rather an indirectly militarized arm of the carceral state. Stay tuned and find out.

0:05:22.6 Michael: Yay. Getting pumped.

0:05:25.4 Peter: In this case, a 22-year-old black man named John Thompson was falsely convicted of armed robbery based on manipulated evidence. But it gets worse, the only reason prosecutors brought that case against him at all was to use it as leverage in another case, a murder that they were hoping to pin on him. They successfully leveraged the false armed robbery conviction to help convict him on the murder charge. He was sentenced to death and served nearly 20 years in prison before all of this finally leads to his convictions being overturned after it is uncovered. And he sues, he sues the prosecutor's office for its misconduct and he wins $14 million, but then the Supreme Court in a 5-4 decision by our good buddy Clarence Thomas reverses the judgment, saying that the prosecutors cannot be held liable for their misconduct in this context. Rhi, let's go.

0:06:22.7 Rhiannon: Do I have a story for you all today. Yeah. This is a story about how the criminal punishment system really works by design, and how the Court does nothing to hold it accountable for the violence that it does. In 1984, John Thompson was 22 years old and living in New Orleans, Louisiana. In late 1984, a man named Raymond Liuzza Jr was shot and killed. One witness saw that shooting and told police that the shooter was a black man, six feet tall with close-cut hair.

0:06:57.4 Peter: Open and shut case, Johnson, we got him.

0:07:00.3 Rhiannon: Now, John Thompson at this time is 5 feet 8 inches tall and has a large afro. Yeah, it's bad. But John Thompson is the one who gets convicted of this murder and sentenced to death.

0:07:18.4 Peter: Well, he is black, though, that's one for three.

0:07:20.0 Michael: That's... There's not much else you need.

0:07:22.4 Rhiannon: Do keep that in mind over the course of the story. So this is not just a story about the criminal punishment system and about the Supreme Court, it's specifically John Thompson's story and a story about how the DA's office in New Orleans engineered first a life sentence and then a death sentence for him. So a quick note, in stories about exculpatory evidence being hidden or withheld by prosecutors, you will often hear that evidence referred to as Brady evidence or Brady material, sometimes even just Brady, like they didn't turn over Brady, for example. That's because there was a Supreme Court case called Brady v. Maryland, and it's a foundational cornerstone decision in the Law of Criminal Procedure that says that any evidence that might exonerate a defendant must be turned over to the defense.

0:08:12.9 Peter: I'm glad we needed a whole Supreme Court case to say this, right. If you find evidence that proves that this guy is innocent, you do have to hand it over.

0:08:21.9 Rhiannon: Right, exactly.

0:08:22.3 Michael: You can still go forward with the prosecution.

0:08:25.6 Rhiannon: That's right, yeah. The Brady decision stands for the idea that it's a violation of your right to due process if you're not afforded the opportunity to see not just the evidence that shows you're guilty, but also evidence that might show that you're innocent, right. You can pick apart evidence that shows you're guilty, but you also have the right to inspect and present and build on exculpatory evidence too. And the reason why prosecutors are required to turn this over is how would, say, a poor defendant in court have this evidence, right, the prosecutor as a representative of the state is the one with the power and control over the investigation of all of these crimes and the collection of all of this evidence.

0:09:01.6 Michael: The crime scenes are sealed, all the evidences in the state's hands, there's no real way to get at it otherwise.

0:09:07.1 Rhiannon: That's right. So turning back to John Thompson's story. So police and prosecutors in Orleans Parish begin investigating this murder in late 1984. They have the description from the witness that the shooter is six feet tall, a black man with close-cut hair. A few weeks after the murder in a separate incident, an armed robbery occurs of three siblings. The perpetrator of the robbery held these kids at gunpoint and during the struggle, the perpetrator's blood stained one of the kids' pant legs. Now, that swatch of fabric with the suspect's blood stain on it was saved and stored by law enforcement in Orleans Parish/

0:09:45.9 Michael: Props, by the way, to those kids to draw some blood, man.

0:09:49.7 Rhiannon: Right. Yeah, they put up a fight, yeah. So police and prosecutors are investigating both of these crimes, the murder and an armed robbery, and this is where shady shit starts happening. So first, after the murder victim's family announces a cash reward for information, a really shady witness comes to the family and tells them that John Thompson and another man, Kevin Freeman, had been involved in the murder. The family and the shady witness go to police afterwards and they give this information, and the shady witness says that he heard about all of this, he heard about Thompson and Freeman's involvement in the murder from Freeman.

0:10:27.3 Rhiannon: Now, important side note here, Kevin Freeman is six feet tall and wore his hair in a close-cut style that made his scalp visible.

0:10:39.4 Michael: Interesting.

0:10:39.7 Rhiannon: Yeah, keep that in mind. John Thompson and Kevin Freeman are subsequently arrested for the murder based on this shady witness' report to the police. Now, you've seen prosecutors would move forward on the murder case against Freeman since he fits the eyewitness description, unlike John Thompson, but something else happens kind of at the same time. When Thompson and Freeman are arrested for the murder, their pictures are published in the newspaper. So the father of the kids who were robbed in that separate incident shows the kids the picture of John Thompson with his afro, and the father reports to police that the kids identified John Thompson in the picture as the guy who robbed them. Later, there is an extremely problematic photo lineup shown to the kids in which that same photo of Thompson from the newspaper was included, and the kids again say that Thompson robbed them.

0:11:31.1 Michael: Here's the photo you identified before. Do you still identify it?

0:11:35.7 Rhiannon: Exactly. If you know anything about photo lineups and police practices...

0:11:40.6 Peter: Or just basic human psychology.

0:11:43.1 Rhiannon: Exactly, you know that confirmation bias is a real problem in photo identification of crime suspects. So Mr. Thompson is already in jail for the murder, you'll remember, along with Kevin Freeman, and now prosecutors are able to pin this robbery on him based on the kids saying John Thompson is the one who robbed us. Now, at this point, Orleans Parish prosecutors make a pretty gross strategic decision, it's gross, but it is common. Even though the robbery happened after the murder, the DA's office decides to try Mr. Thompson for the robbery first, so they can leverage the robbery conviction against him during the murder trial.

0:12:21.6 Rhiannon: So let's talk about what happens at the robbery trial first. Even though Mr. Thompson's lawyers requested access to all Brady material, all potentially exculpatory evidence, which would have included that swatch of fabric with the robber's blood on it, prosecutors blocked their review of that evidence, and in fact, the swatch with the blood evidence on it was signed out of the property room over at the DA's office...

0:12:45.2 Peter: Which is the evidence room, by the way.

0:12:47.6 Rhiannon: Yeah, the evidence room, the evidence storage room, and it wasn't returned until the day before trial. So when Mr. Thompson's lawyers were given access to inspect all of the evidence, there wasn't any blood evidence there, and the prosecutors didn't tell defense that blood evidence existed at all, so the defense lawyers didn't know anything was missing. This is super, super important because prosecutors had ordered testing to be done on that blood evidence, and the analysis came back saying that the blood definitively was from a person with blood type B. The perpetrator of the robbery therefore had blood type B, right. John Thompson's blood type is O.

0:13:27.1 Rhiannon: This is a multi-layered violation of Brady, right. Prosecutors first did not disclose the existence of potentially exculpatory evidence, and then after they didn't disclose the test results, which were also exculpatory, right, so at the trial for robbery, the prosecutors didn't present the blood evidence, of course, they wouldn't, it negates their case. And in fact, after it was checked out of the property room, the swatch has never been found to this day, so this means that at trial, the only evidence against Mr. Thompson that was presented was the testimony of the children who had been robbed. Based solely on those descriptions, Mr. Thompson was convicted of attempted armed robbery and the judge sentenced him to 49 years in prison without the possibility of parole.

0:14:12.2 Rhiannon: So now, armed with the robbery conviction and what is a de facto life sentence against Mr. Thompson, right, 50 years in prison...

0:14:20.3 Michael: For a 22-year-old, yeah.

0:14:22.2 Rhiannon: Even in your early 20s is a life sentence. Prosecutors have a massive advantage in prosecuting him for the murder, so by prosecuting Mr. Thompson for the robbery first, they effectively took away Mr. Thompson's ability to testify in his own defense at the murder trial, because the only way that the jury would have heard that Mr. Thompson was already convicted of another violent crime, of robbery, already had this very scary-looking rap sheet, would be if Mr. Thompson took the stand. Prosecutors would then be allowed to bring up the robbery conviction to undermine Mr. Thompson's credibility, so effectively, again, in kind of this de facto way, they've taken away his right to testify in his own defense, and they added on top of that at least three more Brady violations in order to put the nail in the coffin of Mr. Thompson's murder trial.

0:15:13.9 Rhiannon: So first, prosecutors did not disclose at the murder trial that they had recordings of the conversation of that shady witness when he spoke to the murder victim's family, and in that conversation, the shady witness had implied heavily that he was giving this information, kind of coming up with this information, only in return for the cash reward. The shady witness testified against Mr. Thompson at the murder trial, and he testified on the stand that he gave that information to the police with no knowledge of the reward money. That is false. Mr. Thompson's attorneys, though, did not have those recordings of those conversations, so they couldn't show that the shady witness was lying.

0:15:53.0 Rhiannon: Second, the prosecutors had flipped the co-suspect, that Kevin Freeman guy, so that Freeman was testifying against Mr. Thompson in that murder trial. Prosecutors didn't turn over the police report that said that the shady witness had heard about the murder from Kevin Freeman, so the defense couldn't attack Freeman's credibility on the stand by asking him questions about his prior statements he'd made about his own involvement in the murder.

0:16:21.3 Rhiannon: And third, people are maybe yelling at their headphones or whatever about this, if you remember what I said earlier, there was an eye witness to that murder, right, the eye witness gave a description of the shooter, six feet tall, a black man with close-cut hair. Prosecutors did not turn over information about that eye witness or that description, so Mr. Thompson and his lawyers had no idea that there was an eye witness description and that the description did not match Mr. Thompson at all, who again was 5 foot 8 with an afro. Defense attorneys here were really running blind and it was through no fault of their own, like with no evidence with which to attack the prosecutor's case, Mr. Thompson was found guilty of first degree murder.

0:17:04.4 Michael: Right, right. And usually the district attorneys leave this sort of stuff to their little underlings to do the prosecutions, but in this case, District Attorney Harry Connick wanted to be really involved, he handpicked the team, he was in the day-to-day stuff. You know, if we're gonna violate Brady, we better do it right. So he was like in it.

0:17:29.5 Peter: Yeah, and if that name sounds familiar to you, Harry Connick, that's because the criminal DA Harry Connick is the father of Harry Connick Jr, American celebrity. He's like a singer, he's an actor, he's been on American Idol briefly, he was the fighter pilot friend of Will Smith in Independence Day, if you remember, that guy. He said famously, let's kick the tires and light the fires, Big Daddy, to Will Smith, especially famous to people who have watched Independence Day 75 times.

0:18:07.4 Michael: Didn't quite make the same singer to actor leap that Will did, though.

0:18:12.1 Peter: And maybe more pertinently, for the past decade or so, has been an ADA on Law and Order Special Victims Unit.

0:18:20.6 Michael: No.

0:18:24.2 Rhiannon: Oh, my God.

0:18:25.5 Michael: Yes.

0:18:26.2 Rhiannon: Are the Special Victims victims of the prosecutor's office who are framed for murder?

0:18:33.1 Michael: Law and Order loves doing the... Like ripped from the headlines and they should do this case, they should make Harry Connick Jr play the corrupt district attorney who destroys evidence, wouldn't that be good.

0:18:48.2 Rhiannon: So at the punishment phase of the trial, the DA's office argued that because Mr. Thompson was already serving a decades-long sentence for attempted armed robbery, the only way to punish him for murder was to execute him. They got what they wanted, he was sentenced to death and he was transferred to death row in 1985. So some nine years later, one of the prosecutors after learning that he was terminally ill, confessed to another prosecutor friend that he had suppressed the blood evidence in the robbery case against Mr. Thompson. Now, nothing really happened, though, until five years after that, in 1999, when the State of Louisiana scheduled Mr. Thompson for execution. Mr. Thompson's lawyers hired a private investigator to try and find anything they could that would save Mr. Thompson's life and deep down in the state's forensic archives, lo and behold, the investigator found a microfiche copy of the lab report that identified the robber's blood type.

0:19:48.9 Rhiannon: So at that point, the prosecutor friend who knew that the robbery prosecutor had withheld that evidence, he's...

0:19:55.2 Peter: Yeah, he's like, you know what, I found some information as well in the last five years. His friend did a deathbed confession, basically liked I killed someone. And he was just like...

0:20:05.6 Michael: I guess I gotta sit with that.

0:20:09.4 Peter: That's so nuts, dude.

0:20:11.6 Michael: Thanks for laying that on my shoulders, bud.

0:20:13.7 Rhiannon: Right, yeah. So the prosecutor friend who knew that the robbery prosecutor had withheld that evidence finally came out and signed an affidavit saying his friend had admitted to doing this, and Mr. Thompson's robbery conviction as a result was overturned and the execution was stayed. But important to note that the Orleans Parish District Attorney's Office fought this every step of the way, but eventually the Louisiana court of appeals also reversed Mr. Thompson's murder conviction. Now, what did the district attorney's office do? They didn't say like, oh, yeah, that's right, we fucked up and this guy can go free now. The DA's office in Orleans Parish again tried Mr. Thompson for murder.

0:20:58.0 Rhiannon: This time, the Brady evidence was disclosed to defense attorneys and a jury took 35 minutes to find that Mr. Thompson was not guilty. So after 18 years in prison, 14 of them in solitary on death row, Mr. Thompson is released and he sues the district attorney's office in Orleans Parish, saying that they had violated his civil rights by not properly training prosecutors about the requirements of Brady. Now, for this to work legally, a plaintiff has to show that the failure to train amounts to a pattern of people's rights being violated, and the legal standard is a pattern that leads to deliberate indifference to the rights of persons with whom an untrained employee comes into contact.

0:21:43.4 Rhiannon: Now, Mr. Thompson takes that lawsuit to trial, the jury hears all of the evidence about what the DA's office did to Mr. Thompson and they agree that there was deliberate indifference to the rights of Mr. Thompson and awarded him $14 million. Now, that's what we're talking about here, that's sort of the liability of the District Attorney's Office, and that's what gets appealed first to the Fifth Circuit, which affirmed the jury holding, which is wild in an extremely conservative Fifth Circuit federal appellate court and the DA's office in New Orleans appealed that decision to the Supreme Court.

0:22:23.8 Michael: I'm excited, guys, this could be our first good decision, right? A unanimous court.

0:22:34.7 Peter: So alright, let's talk about the law a little bit.

0:22:37.3 Michael: Before we do, really quick, sorry. If you are sitting there thinking like, why are we talking about training, why are we talking about deliberate indifference, this was intentional and malicious, that's a different case that we will no doubt cover at some point in the future. So get ready for that.

0:22:56.9 Peter: Okay, so let's talk about the law a little bit here. The question the Court is addressing, if you take a step back, is basically how bad does a prosecutor's misconduct have to be before they can be held legally liable. And this is a big question under the law, because prosecutors, similar to police, are afforded certain protections and immunities. And the idea behind that, if I'm being as favorable to it as possible, is that inevitably in the course of prosecution mistakes will be made, and if they become liable for every single one, it makes their job just sort of impossibly difficult. So we need to protect them. And again, like Rhi mentioned, the rule is that there must be a pattern of misconduct.

0:23:42.1 Peter: And so Clarence Thomas, in his decision, his basic argument is simple, he says, look, you know, if one prosecutor does something shady, you can go after them individually, but if you want to go after the entire office, you need to show this system of inadequate training, right, the pattern of misconduct. It can't be just one incident because one incident isn't enough information to conclude that there is inadequate training. And Thomas says that this is just one incident, so the government can't be held responsible here. And the problem with this, which the dissent points out, is this wasn't one incident, it was one conspiracy, I think you could look at it like that. In the literal legal sense, it was one conspiracy, but in the course of the story, a team of prosecutors, including the District Attorney himself, suppressed critical evidence in one case in order to leverage it in another, kept that evidence suppressed, not just during the trial, but for the subsequent nearly 20 years, until someone finally found out right before the state killed John Thompson, or would have killed John Thompson.

0:24:52.3 Peter: They didn't turn the blood report results over to the defense when they were compelled to by motion, they blocked inspection of the blood by the defense, they removed it from the evidence room completely the week before trial, they didn't introduce the blood as evidence at the trial, of course, and in fact, as Rhi mentioned, it has never been found, which almost certainly means it was destroyed. They offered witness testimony they knew was false, they withheld witness testimony about the murderer's description that would have exculpated Thompson. How is that not a pattern of misconduct? In what world is that a single incident? If a single prosecutor did something to cover up one bit of evidence in a case, and that was all he did, I think you can make the argument that it's sort of an isolated occurrence, but this is a coordinated effort by a team of prosecutors that spans multiple cases, and depending on how you look at it, multiple decades.

0:25:45.6 Peter: It requires multiple people to work together in an extensive effort to cover up evidence. You'd have to be an absolute fucking idiot to think that this is a single occurrence of misconduct, and honestly, I don't think that Clarence Thomas does. His opinion, which he admits relies very heavily on precedent, and that's when you know Thomas is being disingenuous 'cause he barely believes in precedent as a concept.

0:26:12.4 Rhiannon: He doesn't even like precedent.

0:26:14.2 Michael: He loves writing these concurrence where he's like, my colleagues have correctly applied precedent, and so I concur in judgment, but if I'm being honest, if I got to make the decisions, we would throw that precedent out. That's like his calling card.

0:26:28.3 Peter: Exactly. His opinion is almost completely devoid of any thoughtful analysis of the actual case, like how it impacts people and how it impacted Mr. Thompson, to a point where a lot of legal commentators found it particularly cold, and when legal commentators find something particularly cold, you fucked up, you've done something egregious.

0:26:48.8 Rhiannon: Right. When those fucking robots have any semblance of an emotion.

0:26:54.2 Peter: You've got a situation where a man was framed and as a result sentenced to death, and the majority opinion finds that the conduct was not pervasive enough to warrant liability. I mean, the only thing that explains this in my mind is the conservatives on the Court truly do not conceptualize criminal defendants in these cases as human beings. I don't think there's anything else that actually explains this case, and I know that sounds dramatic, but I just... I can't think of any... I try to think in terms of the conservative mind and the conservative psychology, how it gets to a conclusion like this, and there are little things here and there that can explain Thomas's reasoning, the focus on rules, things like that. But I really don't think that there's anything that explains it better, than they don't think of this person as a human.

0:27:40.0 Rhiannon: That's right.

0:27:40.6 Michael: I think that's right, and I think you can see it in just the way Thomas's opinion... It's sort of deceptively simple, but he's very clearly like running cover for the prosecutor here, right. You could find clear instances of bad faith, and the one that really jumped out to me was how he says, this is only one incident. This is only one incident. It's not a pattern. Thompson points out that during the 10 years preceding armed robbery trial, Louisiana courts had overturned for other convictions in the same office because of Grady violations. That sounds like a pattern, right? And Thomas says, well, no, because they weren't similar to the Brady violation here, they didn't involve blood evidence and lab reports, which is like... What the fuck are you talking about?

0:28:29.5 Rhiannon: It's horrific.

0:28:30.4 Peter: Just think about this in the most basic sense. If you had a child, like a seven-year-old child, and your child punches his sister and then lies about it, right. And then lies about stealing something. Is that a pattern of lies? You wouldn't be like, well, those are different, those are different types of lies.

0:28:47.1 Rhiannon: Right, exactly, exactly. Yes, it's just the conservative tendency to sort of specify to a point of total abstraction that doesn't even make sense.

0:28:57.8 Peter: Technicality for the sake of technicality.

0:29:00.6 Michael: I don't think Thomas is confused here, right, like the point he's making makes sense in the abstract, which is like, look, if they keep fucking up blood evidence, then clearly they don't understand what is and isn't exculpatory blood evidence and you need to train them about it. But that's not the concern animating this, right, that's not the claim being raised here. The claim being raised here is that this office doesn't take Brady seriously, and the training they need is you have to fucking turn over Brady materials, you're not idiots, you know what's exculpatory, and you have to do it. It's not a suggestion, right. That's the training.

0:29:34.7 Peter: It's not like they thought like, oh, blood evidence, you gotta hand over blood evidence too?

0:29:40.7 Michael: What? So like, and Thomas knows this, gets this, right. This is deliberate. This is the way conservatives launder their opinions. This is a perfect example of them viewing themselves as advocates for the police, right. Prosecutors are cops, and they're advocates for the police, and they're making sure the police can do their jobs as they see it, both the cops and the conservatives, which is maintaining order, maintaining the current social order, and if you have to fucking break a few civil rights eggs in order to do that, if you have to frame a few people for murder and sentence them to death, if that's what it takes to keep the fucking rabble down, that's what it is. The state is fucking bullshit. It's disgusting. That's what this is.

0:30:32.5 Rhiannon: And stepping back a little bit, talking about what prosecutors are sort of bound and required to do when prosecuting, it's not just that Brady v. Maryland created the standard that requires prosecutors to turn over this evidence, prosecutors' ethical duty in the law in their profession is to justice, their duty is not solely to collect convictions or to gain convictions, their ethical duty is to the truth and to justice.

0:30:58.7 Peter: Right. Lawyers can't put people on the stand they know are going to lie, things like that, right.

0:31:03.2 Rhiannon: Yeah, exactly. And so I think what Thomas fails to do is sort of honor and uphold the important mission of what in theory a prosecutor should be doing, right, and just gives carte blanche to continue to do this shit because, oh, it's just kind of like an occupational hazard, sorry.

0:31:21.3 Michael: And so Thomas does talk about this and he sort of uses it in this bad faith way, he says, look, like it's not just trainings in the office that district attorneys rely upon to make sure their subordinates are complying with the law, they take professional ethics in law school, they are apprenticed, they have to take continuing legal education to maintain their Bar membership and so Thomas is saying, look, the district attorney can rely on that in assuming that his assistant district attorneys are not corrupt and know what they're doing, and so they need some reason to think there needs to be a training, right, like you need to demonstrate as a plaintiff that there was some glaring issue. But I think any time there's a Brady violation, any time, even one, there should be a big office-wide training.

0:32:21.2 Michael: I don't think you should wait until there are five or six, I don't think you should need three or four blood evidence Brady violations before like, let's have a blood evidence training. It's a serious issue.

0:32:33.8 Rhiannon: Right, it's a serious miscarriage of justice already.

0:32:36.8 Michael: It's a constitutional violation.

0:32:39.7 Rhiannon: Right, right. You have fundamentally fucked up on the job.

0:32:42.0 Peter: That would be the case at any normal workplace. If there's a really overt case of sexual harassment at a normal workplace, they're not like, alright, guys, you only got two more strikes, then we're doing a training.

0:32:51.3 Rhiannon: Right, exactly.

0:32:52.2 Peter: Everyone gets a fucking training.

0:32:55.5 Michael: And they've been getting convictions overturned for Brady violations, like every 30 months or something, that's like...

0:33:01.3 Rhiannon: Right. This is clearly a problem.

0:33:03.0 Peter: It's the 25 strike rule that they operate by now. Alright, let's take a quick break and then we will move on to Antonin Scalia.

0:33:15.7 Rhiannon: Hey everybody, thank you so much for listening to 5-4. If you are already a Patreon subscriber, thank you so much. Thank you extra. I would love to open mouth kiss each and every one of you. We actually have a special event coming up for Patreon subscribers. Boys, tell them what it's about.

0:33:38.0 Peter: Yeah, it's about legal media and why it's so awful, and all of the various brain disorders that people in legal journalism have, we're gonna explain them, we're gonna run right through the DSM and catalog all of their various conditions.

0:33:51.6 Michael: We're gonna name names.

0:33:54.2 Peter: That's this Friday, April 2nd, 9 PM Eastern.

0:33:58.6 Michael: Yeah, so if you're not a subscriber yet, subscribe to the $10 tier and you can hop on that Zoom with us.

0:34:06.1 Rhiannon: Patreon.com/fivefourpod, all spelled out.

0:34:10.6 Peter: Alright, we're back. I think we should talk maybe for a second about Anton Scalia's concurrence. In the past, we've talked about a style of concurrence pioneered by Brett Kavanaugh, which is the concurrence that doesn't need to exist, but the author is not self-aware enough to realize that.

0:34:30.5 Rhiannon: That's right, yeah, just repeating exactly what the majority just said.

0:34:34.2 Michael: It's like the legal version of that meme of the drunk guy at the bar, like talking into that girl's ear, you know what I'm talking about?

0:34:42.2 Rhiannon: Yes, exactly. And the girl's face is like, God, please kill me, just take me now.

0:34:46.5 Peter: Yeah, but it's about the non-delegation doctrine. So most concurrence are where a Justice is basically like, there's this other point that's unaddressed here. I agree with the conclusion, but I want to address this point. Then you've got the Kavanaugh variation, there's the classic Clarence Thomas, which is like, I agree with the conclusion based on our precedent, but I would overturn everything. And then you have the Scalia concurrence here is, is what I call the I could do this better concurrence. Which is when you're making the same points as the majority, not like Kavanaugh because you don't realize it, but because he read the Thomas majority, he read Ginsburg dissent, which is very strong and really takes the majority to the mats...

0:35:36.6 Michael: Like takes them out to the woodshed.

0:35:40.0 Peter: I mean, you read the Ginsburg dissent and you're like, that's the winning side of this argument, it's just one of those things. And I think Scalia saw that and was like, okay, I could do this better than Thomas. And he just sort of gave it a whirl. I don't think it adds much substantively, I don't know if there's anything you guys want to discuss about it, but I just... I did want to flag a new type of concurrence.

0:35:58.4 Michael: A new concurrence just dropped.

0:36:02.3 Peter: Added to the canon.

0:36:02.3 Rhiannon: Scalia not wanting anybody else to take credit for whatever bullshit they're talking about today.

0:36:07.5 Michael: The one thing I'll say is that he gets a lot of credit for being the big brain, right, and I don't think he is. With that being said, it's like you said, he saw that Ginsburg was really... Out-classed Thomas, because Ginsburg is right and Thomas is basically just running interference for a cover up. And he's like, well, I could do this, but he can't. They're wrong. There's no way about it, like you say, there are no objective answers, but this is about as close as you get to there being a clear answer, and five Justices were on the wrong side of it. There's no getting out of that.

0:36:40.5 Peter: Exactly. So when we discussed qualified immunity with respect to the police last year, we talked a little bit about a discrepancy between how police talk about themselves and how they demand the law treat them, and it's a similar dynamic with prosecutors, who hold themselves out as sort of the vessel through which the people's justice flows, right? They often show up at public interest fairs at law school as if they're in the business of serving the common good, which I found particularly offensive as a sell-out, 'cause I was like, at least I'm admitting it, just if you go for... If you go to a corporate law firm, no one's pretending that they're serving the public interest, right.

0:37:22.8 Peter: The prosecutors are like, oh no, I think this helps everyone. It's offensive to all sell-outs, I think. Yeah, so they're holding themselves out as the carriers of this great social responsibility, and yet there is this vast legal framework specifically designed to insulate them from the consequences of abusing or neglecting that responsibility, right? Is it really a responsibility? And if there are no consequences for fucking up, isn't the fact that there must be consequences for messing up central to the entire concept of responsibility? Like that's how you teach it to children, right? This is a responsibility, Timmy, that means don't fuck it up or you get in trouble.

0:38:02.4 Michael: The whole idea of somebody who's responsible is somebody who gets it right, does what they need to do it even when it's difficult. Oh, they're very responsible, they stayed up late to get their work done or whatever, blah, blah, blah.

0:38:17.2 Peter: Regular people are not given the freedom to make dire mistakes, this is a luxury that the state affords itself. They're like, oh, this is a really tough job we've got here, and sometimes we will, yes, engage in conspiracies to get a man sentenced to death. That's just part of what we do. You wouldn't really understand. In reality, if we wanted to impute the prosecutorial role with the appropriate level of responsibility, there would be extensive oversight and penalties for things like the purposeful obstruction of evidence.

0:38:49.3 Peter: Instead, we have a system built around protecting prosecutors, and it's even more bizarre here than it is in many police cases. Like with police, you have this idea that they're making split second, high-stakes decisions that will naturally lead to some mistakes, and so they need some leeway, right? And obviously, the police have long abused that leeway, but at least it makes some conceptual sense, right. Here we have some fucking slobs who if they weren't prosecutors would be like slip and fall scam artists who just sat at their desks in between sandwich runs plotting out a fraud to get a man sentenced to death for years on end. That's not the heat of the moment, that's close to the opposite of that.

0:39:31.4 Michael: It's not a slip, right, that's not you overslept your alarm. I said this earlier, but it's like prosecutors or cops, I don't know if it's true everywhere else, but here in New York, they can even get little badges if they want.

0:39:45.3 Rhiannon: Oh, yeah. Oh, yeah, they have badges.

0:39:47.6 Peter: And you know they all get them.

0:39:49.1 Michael: Yeah, they do.

0:39:50.0 Rhiannon: They absolutely have badges, yeah.

0:39:51.9 Michael: So I think the Court gets that the same way they need to insulate cops from responsibility, they need to insulate prosecutors as well, it's all part of this same overarching ideology, which is that the state gets to trample the rights of the underclass is really what this is about, it's like maintaining the social order, and the social order is that poor people and black people are under the boot.

0:40:20.2 Peter: Absolutely. I do have one thought before we just let Rhi run wild here, which I'm excited for. It's important to understand just how fundamentally flawed our prosecutorial system is. When someone with like, let's say with the last name Johnson is being prosecuted, the cases are literally titled State v. Johnson, or even worse, The People v. Johnson. The prosecutors supposedly represent the state, but why does the state necessarily want to convict someone? Shouldn't the state be neutral? If the purpose of the proceedings is to determine the actual truth of what happened, doesn't a public defender represent the interests of the state and the people as well? And if you want to really peel back the absurdity of this construction even further, if the prosecution is the state, then what the fuck is the judge?

0:41:08.3 Rhiannon: Right, right. What's he doing?

0:41:09.2 Peter: The state is represented twice. What the fuck? In America, we have what's called an adversarial legal system. One side's lawyers are tasked with arguing that the accused is guilty, and the other side that the accused is not. Neither side is interested in the truth per se, they are obligated by legal ethics rules to argue for their side. Now, obviously, they're not supposed to lie or obscure the truth in the process, but the system creates these dangerous perverse incentives, which this case very clearly lays bare, right, and it also creates this scenario where the state, which should be neutral to the outcome, is invested in sending a person to prison or to their death.

0:41:51.3 Peter: And it's not pie in the sky idealism to think that this shouldn't be our system. There are Western nations with what's called inquisitorial systems, where the judge is assigned without relying in full on advocacy from the parties to make a determination about the truth, like what actually happened here. Naturally, that's not a flawless system, but it does seem to be one that is at least ostensibly geared towards finding the truth, and that would be a big inherent improvement on this sort of farcical system we have today where the government is overtly taking on the role of, we want to send this guy to prison, essentially, regardless of whether or not they're guilty.

0:42:28.2 Peter: Obviously, in an inquisitorial system, there might be judges who are corrupt or biased or whatever, and that's always gonna be a downside, a downside in our system with judges as well, but you will not have the disgusting incentives that led to these people manufacturing a case against this man to send them to his death.

0:42:48.0 Michael: Right, the whole idea with zealous advocacy is you're supposed to push things to the limit, which means the state is literally in the posture of trying to bend or even break the very rules that are in place to ensure a fair trial and ostensibly at least make sure that the truth comes out, right, which is not a position the state should be in. You've really fucked things up if that's where you've landed. Another point I want to make is like that Peter said, the judge represents the state, the prosecutors represent the state, and in I think any reasonable conception, the federal defenders or the public defenders would be representatives of the people as well. But philosophically, at least, the jury is the people, it's the people's foothold in this whole state-run system, and that's why we have a jury is to make sure that the tyrannical state doesn't just take over entirely, that the people always have a say.

0:43:47.8 Michael: And here, the jury was very clear, the jury was like, this is fucked up. The jury was like, this guy deserves a lot of money, a million dollars for every year he was on death row, which there's a very clear sort of logic to that, I think. And you have the Supreme Court saying fuck you, right? Eat shit, people. Eat shit to the people. Like you don't really get a say at the end of the day, your involvement is optional.

0:44:17.9 Peter: I would like to do an episode where I just make the same point about case titles over and over again, because The People v. Whoever just pisses me off so fucking much, like did I miss a vote? Was there a fucking referendum I missed out on over here?

0:44:32.7 Michael: And while we're talking about juries, I want to say, if you find this stuff compelling, you should consider it your moral duty if you're ever called in to jury duty to one, show up, not put it off, and two, say what you need to say to get on the jury, and then three, vote not guilty. That's called jury nullification and you should do it. When I got jury duty, I tried desperately to get on the jury to get some dude off, they were trying to railroad him with some pot conviction 'cause they couldn't stick some credit card fraud on him, and I was like, I'm going to fucking get on this jury and I'm going to make sure this guy gets off, but I didn't get selected.

0:45:13.3 Michael: Don't let that happen to you. Get selected. Fight the power. They can't stop you. What happens in the jury room is sacred, you're the people, you get the final say.

0:45:23.8 Peter: When I got called for jury duty, there's a new thing, certain jurisdictions, but New York, especially, where it used to be understood that if you were a lawyer, they're not going to pick you. Now, the opposite is true, they want a couple of lawyers on the jury to sort of guide people through the process. A lot of them think it's beneficial, and that's become popular. And I'll never forget the look on the face of the guy, the Goldman Sachs attorney who was sitting next to me when he got selected, just blood drained from his face. He had to go back to his senior VP boss and be like, I'm going to be on a trial for two weeks, and you are legally obligated to let me go.

0:46:03.0 Michael: What will our clients do without someone telling them to invest in Tesla for two weeks?

0:46:13.4 Rhiannon: Thinking about this case and prepping for this episode, I was thinking a lot about how the discovery sort of process, just how that plays out kind of day-to-day, in the life of a public defender, of someone defending people in this system. And I just want to say that the state has, like we said up top, true monopoly on evidence that's presented in general, because like we said, they have exclusive control and power over the investigation, over all of the evidence that's collected, and then they have exclusive control and power over what gets turned over.

0:46:51.7 Rhiannon: And this case is, it's so obvious that the district attorney's office really conspired against Mr. Thompson in withholding, hiding, maybe even literally destroying, clearly exculpatory evidence, but in your day-to-day prosecutions for simple drug possession, for simple assaults for petty theft, we are constantly fighting over what gets turned over, right, this is not a just egregious example, I mean, it is an egregious example because of the stakes, right, because Mr. Thompson went to prison for nearly 20 years, he was almost executed, but in terms of the pattern, which is what he established here, the pattern is obvious n any prosecutor's Office in the country.

0:47:40.2 Rhiannon: I don't care if you're a progressive prosecutor's office or not, the idea of the state having full control over what gets turned over automatically means that the defense is already and always at a disadvantage, and it means that the defense is often having to fight about little tiny things constantly. Will you turn over the surveillance video, turn over the analysis of those drugs, turn over the witness' statement. I know that police talk to them, you have to turn that over.

0:48:15.3 Michael: Fight tooth and nail just for the materials you need to present a defense.

0:48:19.1 Rhiannon: Exactly, exactly, that's right. And so just want to highlight what a disadvantage to that is and how this fight is constantly happening day in and day out with every defense attorney, with every prosecutor in the country.

0:48:33.1 Peter: Yeah, Rhi, I want to get your thoughts on this, because we keep having people asking us and asking you specifically for your thoughts on progressive prosecutors. So that our listeners are aware, there's sort of a movement and a trend of the so-called progressive prosecutors, which are prosecutors who are, in their own words, progressive, and will take progressive stances in terms of what they prosecute, in terms of tactics they use in prosecuting their cases, right. They're not gonna be prosecuting a simple drug possession and things like that, they will be advocating for prosecution that endorses certain types of policing that are viewed more favorably by progressives, etcetera, and just generally sort of trying to use the prosecutorial role to shift the prosecution in a more progressive direction. And I know you've mentioned that you have some big picture concerns about that.

0:49:28.4 Rhiannon: That's right. When I am thinking about the progressive prosecutor movement and my opinions about it, for one, I practice currently in a jurisdiction with an elected prosecutor who sort of identifies as a progressive prosecutor. You might have heard of Larry Krasner in Philadelphia, George Gascon just got elected in Los Angeles in California. And I just think like this case, Connick v. Thompson, is a really, really good example of my problem with the progressive prosecutor movement. Now, that's not to say, of course, that Connick in the 1980s in New Orleans was any kind of progressive prosecutor or identified as such, right, but this case really shows the limitations, I think, of the progressive prosecutor movement.

0:50:12.9 Rhiannon: And that's because this case shows the system that progressive prosecutors are entering into, like this is a system of attaining convictions over anything else, and in which your definition of justice, which is what prosecutors have a duty to, your definition of justice is punishment. Prosecutors and the police, and I consider them one and the same, they are the engineers of mass incarceration, the state decides what is criminal activity, and then it decides who gets charged with criminal activity, who gets surveilled for criminal activity, and then the state has its monopoly on resources and power and violence to try the people it chooses, all under the threat of sending those chosen people to prison, right.

0:50:58.3 Rhiannon: And so if you are a progressive prosecutor, this is the system in which you are operating, in which the tools at your disposal are punishment to get to justice. And so if you are sending somebody to be caged, and the way you do that is by being very meticulous and very careful about what exactly gets turned over to the defense, I don't see a progressive sort of system of doing that. So on the one hand, a progressive prosecutor, when they say, there's these maybe category of cases that we're not going to prosecute anymore, we won't prosecute, say, simple drug possession or petty thefts or other crimes of poverty, simple criminal trespass, which sort of disproportionately affects homeless people, for example, I'm not ever gonna critique that, that's fantastic. You've made a sort of instant and short-term and positive impact on a community, on a group of people who would otherwise have been sort of swept up into the system, and that's fantastic.

0:52:00.0 Rhiannon: Another example being progressive prosecutor offices saying that they're not gonna ask for money bail in their cases, they're not going to incarcerate people pre-trial just because they can't pay to get out. That's also fantastic, right. But again, I always return to the idea that if on any level, your definition of justice and the tools that you have for supposedly attaining justice are to cage somebody in a completely imperfect system in which police are biased, prosecutors are biased, judges are biased against people of color and the poor, then none of these convictions are legitimate, and I just think that a truly progressive prosecutor's office, that to me could only occur if a prosecutor takes office and commits 100% to diverting the resources that a prosecutor's office has into actual services for people of color and the poor in their jurisdiction, so not just diversionary courts, right. Not just probation over prison, but actual services that divert people away from the criminal punishment system to begin with.

0:53:11.6 Michael: Right, and I think to that point, you see it just about every time there's a progressive prosecutor elected, you see there are revolts from their ADAS.

0:53:21.5 Rhiannon: Absolutely.

0:53:22.3 Michael: Which are their assistant district attorneys, the ones who like prosecute cases and who will leak to the press, who will defy them, who will talk about resignations, you see push back from judges who will impose money bail even if it's not requested. You see it from all ends, in the papers, you see local papers will vilify them and start talking about crime. We saw this in New York when the second cash bail reform came about, all of a sudden all the local media was talking about up-ticks in crime, and the entire system is going be fighting them in their own office, in their own capacity, they take it from all directions, so there's like real limits to what you can do whatever your intentions are.

0:54:14.0 Peter: There's something that we've talked about in various different contexts on this podcast. A couple of weeks ago, in Toyota v. Williams, we talked about the inadequacy of workplace discrimination laws and that the real solution is the concentration of power in labor. And we've talked about the same thing in the context of, for example, cops, the solution to abuse of power by cops is not nice cops. The solution to abuse of power by employers is not nice employers. The solution to abuse of power by prosecutors is not nice prosecutors, it's removing the power that prosecutors have and shifting it elsewhere. That is how you get something that looks like actual substantial reform. And that is why the sort of progressive prosecutor concept is always going to be like good, but limited, no matter what.

0:55:07.1 Peter: It's not a systemic reform, every other part of the system rebels like it's a fucking invasive species, just being rejected by the disgusting decrepit, racist host body, and you're never going to see the sort of sweeping system-wide change just by everyone shaking hands and being like we're gonna be nicer, I'm one of the good ones. That's just not how change happens, change happens by reallocating power into the hands of people who did not have it previously.

0:55:38.7 Michael: I would like some credit from you guys. When you said the answer is not nicer cops, like immediately I was like, it's dead cops. But I stopped myself.

0:55:55.1 Rhiannon: That's gross.

0:55:55.2 Michael: I held it back.

0:56:00.0 Peter: Next week, Hoffman Plastics v. National Labor Relations Board, a case about whether an undocumented immigrant can get a remedy under the law for having his rights violated.

0:56:14.8 Michael: I'm excited already.

0:56:16.4 Peter: Oh, God. You spend a lot of energy on being outraged about Connick v. Thompson and then just to introduce a new different kind of outrage into your mind, right afterwards, it's exhausting, I've got to say. Follow us on Twitter @fivefourpod. Hit up our Patreon and support us. Patreon.com/fivefourpod, that's fivefourpod all spelled out.

0:56:38.8 Michael: Remember, you too can get a racist fired if you get in our Slack.

0:56:44.2 Rhiannon: Join us.

0:56:46.2 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.