It was a bad sign at oral argument in Connick v. Thompson last October that the plight of John Thompson was never mentioned. In his opening remarks, his attorney tried to refer to his client. But the justices weren't having any of it. Not one of the nine made a specific reference to Thompson, who spent 18 years in Louisiana's Angola prison — one of the most notorious prisons in the country. Or that 14 of those years were spent on death row — in solitary confinement for 23 hours a day. Or that Thompson was imprisoned for a crime he didn't commit, railroaded by a prosecutor's office that withheld evidence that would have proved his innocence. Nor did they mention that Thompson discovered information about the prosecutor's misconduct only four weeks before his execution date.

And so perhaps it shouldn't have been surprising that the court ruled against Thompson this week, deciding that Thompson could not sue the New Orleans district attorney's office for failing to train its prosecutors on their duty set out in the Supreme Court's 1963 decision in Brady v. Maryland to provide exculpatory evidence in their control that is in a criminal defendant's favor.

After Thompson discovered that the prosecutors in his case had failed to disclose blood evidence that would have demonstrated that he did not murder a prominent New Orleans businessman, he spent another four years getting a new trial. When he finally did obtain a new trial, the jury took only 35 minutes to exonerate him.

Thompson then filed a civil rights claim under 28 U.S.C. section 1983, charging the district attorney's office with violating his constitutional rights by recklessly disregarding the need to train prosecutors in the office about their obligations under Brady. A New Orleans jury awarded Thompson $14 million — $1 million for each year he served on death row. The decision was upheld by the federal appellate court.

But in a 5-4 opinion written by Justice Clarence Thomas (the first majority opinion he has authored this term), the court threw out Thompson's verdict on the grounds that the district attorney's actions did not constitute "deliberate indifference" to the rights of criminal defendants. Although the record made clear that "(1) [Harry] Connick, the Office's sole policymaker, misunderstood Brady. (2) Other leaders in the Office, who bore direct responsibility for training less experienced prosecutors, were similarly uninformed about Brady. (3) Prosecutors in the Office received no Brady training … [and] (4) The Office shirked its responsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements," the majority held that Thompson would have had to prove "a pattern of similar violations" by Connick to hold the Orleans Parish district attorney liable under Section 1983. (Yes, Connick is the father of singer Harry Connick Jr.)

This might be an acceptable statement if justices on the Supreme Court were equipped to make decisions about the credibility of witnesses. But in our system, that job is the exclusive province of the "trier of fact" — in this case, the jury. Scalia stepped out of role to supplant his own view of the facts, refusing to make the logical inference made by the jury that Connick's failure to properly train his subordinates resulted in the actions of the prosecutors in Thompson's case.


The consequences are clear. If the court had upheld Thompson's $14 million verdict, prosecutors' offices all over the country would have likely convened meetings this week to discuss how to improve the training of their attorneys on Brady obligations. Instead, today prosecutors have no incentive, save their own decency and professionalism, to ensure adherence to Brady. And as the Connick case clearly demonstrates, some prosecutors' offices will not exercise their appropriate professionalism in training their staff, and other men (and women, no doubt) will suffer the fate of Thompson.

Which brings us back to John Thompson, whose story the justices seemed to ignore at oral argument in the case. Following his release, Thompson created Resurrection After Exoneration. The organization seeks to advocate for and tell the stories of the more than 400 wrongly imprisoned men who have been exonerated in the U.S. (139 released from death row) — men who, the group contends, served an average of 10 years of their sentences before being released. Thompson brings attention to the plight of exonerees who, as he points out, are released just like every other prisoner — "with a bag of possessions and $10 from the Department of Corrections." RAE provides a place for these men to live and tries to connect them with the services they need to take the first steps in rejoining life on the outside.

Thompson has also joined a book tour with John Hollway, the author whose book, Killing Time: An 18-Year Odyssey From Death Row to Freedom, tells the story of Thompson's ordeal. An effort should now be made to compel the Louisiana Legislature to set aside an "exoneration fund" that will provide men like John Thompson — whose 18 years can never be restored — with a modicum of reparations for the deprivation of their constitutional rights at the hands of public officials.


Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root.