Pattern of Brady Violations Required To Hold Prosecutor’s Office Liable for Failure To Train

March 30, 2011 – In The News
BNA Criminal Law Reporter

On March 29, in Connick v. Thompson, U.S., No. 09-571, 3/29/11), the U.S. Supreme Court announced that people who are wrongfully convicted of crimes as a result of prosecutors’ dereliction of their duty to disclose exculpatory evidence cannot receive civil damages on a failure-to-train theory without evidence of a pattern of similar discovery violations. The district attorney’s office conceded that the prosecutors in the plaintiff’s murder and robbery prosecutions violated Brady v. Maryland, 373 U.S. 83 (1963), when they failed to disclose valuable evidence to the plaintiff’s defense counsel.

Alain Leibman told the Bureau of National Affairs that the Supreme Court’s decision in the Thompson case bears on recent efforts by the U.S. Department of Justice to ensure federal prosecutors’ compliance with the Brady doctrine. “As a result of the dismissal of the conviction of Sen. Ted Stevens as a result of gross Brady violations by the government…the DOJ last year took steps to alter the approach to Brady in the Department and the individual U.S. Attorney’s Offices,” said Leibman. He noted that in January 2010, the DOJ prescribed what is known colloquially as the “Ogden Memo,” a number of “measures to improve the performance of the Department’s attorneys in the discharge of their constitutional obligations to provide timely pretrial disclosure of material exculpatory and impeachment materials.”