Transcript of interview with Prof. Jennifer Laurin on prosecutorial oversight

Below the jump, find the transcript of my interview with Assistant Professor Jennifer Laurin from the UT law school, who spoke with Grits on Tuesday about prosecutorial oversight in anticipation of a panel discussion at 1:30 p.m. CDT today at the UT law school, which will be webcast live on this dedicated site. In it she describes the Supreme Court decision last term in Connick v. Thompson and why it's important, previews new research on prosecutor misconduct that will be released at the event, suggests potential areas for improving prosecutorial oversight, details who will be on today's panels and what will be discussed, and talks a little about her own academic writing on Connick. Here's the text of my conversation with Prof. Laurin:

Scott:          Hello this is Scott Henson with the Grits for Breakfast podcast on March 27.  I’m here with Assistant Professor Jennifer Laurin from the UT Law School, and we’re here today to talk about an upcoming forum being held at the UT Law School on Connick v. Thompson a US Supreme Court case and this is part of a national dialogue that’s being sponsored the national Innocence Project and the Veritas Initiative.  Jennifer has been organizing the event here in Austin and will be moderating it.  And I wanted to ask her here today to answer a few questions about what’s going on.  So welcome Jennifer hello.

Jennifer:      Thanks so much for having me Scott.  I really appreciate it.

Scott:          You bet.  So, Connick v. Thompson, why don’t you tell us a little bit about what Connick v. Thompson is?  Why is it something that we should have a national dialogue about?

Jennifer:      Well Connick v. Thompson is a Supreme Court case from the last term, so it was decided before the Court started hearing arguments this term.  And it came to the Court after a trial on a civil suit that was brought by a man named John Thompson.  He had been convicted actually of both armed robbery and murder in Louisiana out of Orleans Parish, so New Orleans.

                   He spent a total of 18 years in prison, 14 of which were spent on death row.  Through a series of sort of complicated procedural machinations and investigations and multiples interactions of court processes, Mr. Thompson was ultimately released from prison.  He was first exonerated of his armed robbery conviction through DNA testing and he ultimately went for a re-trial on his murder conviction and was acquitted.  The acquittal occurred after a trial in which he was able to put on significantly more evidence then he’d put on in his first trial.

                   The reason he was able to put on significantly more evidence is that evidence came to light to the defense team in the course of those 18 or so years that hadn’t initially been disclosed to the defense.  And after John Thompson was acquitted and was a free man he brought suit, he brought a civil suit again the Orleans Parish District Attorney’s office alleging that the reason why he had spent 18 years in prison was because exculpatory evidence hadn’t been turned over to him as the Constitution required and that the reason the exculpatory evidence hadn’t been turned over was because the District Attorney’s office hadn’t properly trained and supervised attorneys to ensure that they complied with their Constitutional obligations.

                   John Thompson as I mentioned won a trial.  He was awarded $14 million by a jury for the 14 years he spent on death row.  That verdict was actually affirmed by the 5th Circuit and then arrived at the Supreme Court with the Orleans Parish District Attorney’s office appealing to the Supreme Court. 

                   The Supreme Court reversed the verdict they decided that John Thompson couldn’t bring the claim that he brought essentially because he couldn’t prove that there had been multiple instances of exculpatory evidence being withheld by prosecutors in the past.  And the reason the Court said that he should have to prove this was because a District Attorney’s office shouldn’t be expected to know that prosecutors aren’t already adequately trained, supervised, overseen in their disclosure obligations.

                   In other words, a District Attorney’s office, the Supreme Court said, is entitled to assume that lots of other mechanisms are doing the work to ensure that Assistant District Attorneys are doing their job correctly and the mechanisms that the Court pointed to were things like the training you get in law school, the ethical requirements that the Bar places on prosecutors, the oversight that’s supposed to occur when courts review cases, the sort of on the job training that occurs as younger prosecutors are mentored by older prosecutors.  All of these mechanisms the court said are operating to make sure that in most cases prosecutors know what they’re supposed to do and that it’s only in an extreme case that would be completely unpredictable where they’re going to fail.

                   Therefore there’s no liability. 

Scott:          Gotcha.  So, what is the national dialogue that needs to happen in light of that case?

Jennifer:      Right, so the reason why there is a call to have a national dialogue after Connick v. Thompson is because there is a concern about whether these ultimate mechanisms that the court has pointed the world to as being the place where prosecutorial oversight is going to occur, whether those alternate mechanisms really do exist or operating in an robust of a fashion as the courts seem to assume in their opinion.

                   And here I think it’s important to emphasize two things, one is that although Connick v. Thompson was particularly about prosecutorial disclosure obligations - so whether prosecutors are complying with who they’re turning over prosecutorial evidence - there is some concern that there’s actually a range of ways in which prosecutors are bound by the law and supposed to act either ethically or constitutionally in terms of jury selection, in terms of arguments that should be named during trial, in terms of the evidence that’s put forward, and that there needs to be some kind of assurance that prosecutors are acting appropriate and aren’t making errors in that regard.  So I want to emphasize that the conversation is about more than just Brady.

                   And secondly, I want to emphasize that the conversation is about more than just what we might call “misconduct.”  So in John Thompson’s case the allegation was at least in part that one of the prosecutors involved had intentionally withheld evidence.  I think most people can agree that’s an extremely troubling allegation.  But it’s also the case that there are a lot of court opinions that find prosecutorial error, prosecutorial missteps, rules not being followed that may very well have come about, not because someone was designing a frame up or maliciously intending to deprive a defendant of their rights, but simply because of a mistake, of a misunderstanding of the law, of being caught up in the heat of the moment and misapprehending what a legal obligation was. 

                   So the concern is are there actually mechanisms in place that are functioning to prevent and detect and remediate when things go wrong as the Court suggested in Connick now that civil liability is off the table.  And that’s the conversation that is being had around the country trying to bring some awareness to the mechanisms that are in place, how well they’re actually functioning and whether there are any ideas that we can sort of bring to the table and come to some consensus about for reform.

Scott:          All right, well why don’t you give us a run down of some of the people who will be at the event?  I know it actually has some very heavy hitters coming including John Thompson himself the named Plaintiff in the case and Michael Morton who was on 60 Minutes just Sunday night, but who else is going to be there and what are the different folks bring to the table?

Jennifer:      Yes well, you know, the design of the event is in a way sort of a two-part kind of experience.  It’s a two hour forum and the way I’m envisioning it is we begin by putting the stakes on the table, then move to talking about assessing what the situation is on the ground for dealing with the issues that are being raised here.

                   So in terms of putting the stakes on the table, you know, John Thompson himself not only is the named Plaintiff in Connick v. Thompson, but is now actually Executive Director of the organization Resurrection After Exoneration.  It’s a co-sponsoring organization of this whole endeavor.  He’ll be speaking about what prompted his concern to take further steps to address this problem outside of the court process.  And Michael Morton who was recently exonerated after spending 25 years in prison following his conviction for – wrongful conviction for his wife’s murder in Williamson County will be speaking about – again not so much the entirety of his story, but rather what moves him to want to talk about accountability.

                   And obviously, it’s a particularly interesting question to be raised to someone like Michael Morton because his case represents a rare instance where there is a lot of public dialogue going on, a lot of sort of public vetting of precisely what happened in that case with regard to prosecutorial conduct.  And I think one of the points that we want to raise in the forum is, that is in many ways an outlier situation.  There are many, many, many, more cases that never come to light at all much less receive any kind of airing.  And so that’s a point that Michael Morton will be making himself. 

                   In the second part of the event we sort of turn more to problem solving.  We’ll be hearing from the Research Director at the Innocence Project in New York who has put together working with some other folks as well some research and the research is in many ways that she’ll explain quite limited.  It explores documented court findings of prosecutorial error and there are many ways in which documented court findings to the extent they’re publicly available are not great ways of getting at finding sort of how wide spread of a problem there is if there is or isn’t a problem.

                   But one thing the research does reveal is that while there have been over the past six years or so a number of documented court findings of prosecutorial error and again not just Brady issues, but other issues in trial as well, there have been effectively no instances of any kind of bar committee disciplinary response to any of those situations.  So the idea here is to sort of put out on the table as kind of a prima-facie case if you well.  Well if we’re looking to bar disciplinary processes as a mechanism of oversight it doesn’t really seem that that’s a functioning mechanism.  And it seems that there’s some evidence that maybe there are again missteps being made.

                   With that out on the table I’ll be sort of leading a round table discussion of a terrific bunch of – I’m thinking of them as stakeholders really, Jim Leitner who’s the First Assistant District Attorney in Harris County and has had a significant role in policy making there.  Professor Robert Schuwerk who teaches at the University of Houston Law Center and has been very involved in developing the disciplinary rules in Texas as well as, you know, writing the treatises really on those rules.  And Betty Blackwell who is Austin Criminal Defense Attorney but spent several years chairing the Disciplinary Commission here in Texas.  And then Judge Bob Perkins who sat for many years as a District Court Judge here in Travis County and so has kind of first hand experience providing what you might call trial level oversight right of the process.

                   These four people will be talking about their perspectives on what exists at the state level for, you know, training within office, supervising within offices, supervising by the Bar Association, supervising by courts and ways in which those mechanisms do or don’t promise opportunity for oversight.

Scott:          All right, so as we talk about Connick and lay out the issues, what are some of the possible solutions that are getting tossed around?  I know last legislative session the Legislature considered a bill to expand civil liability for prosecutors on a state level cause of action instead of a federal one, there’s been a lot of talk about mandating open files.  But what are some of the issues that you see as really the pivotal things that would make a difference?

Jennifer:      Yes, well I think, as you say, there are a number of issues out on the table and one way to think about it is to think about some of the different sites of oversight that you might consider as relevant to thinking about all of this.  So one site obviously is the office itself and, you know, I think a lot of prosecutors maintain that it’s very important to be looking at internal mechanisms of training, supervision discipline in these sorts of things. 

                   To that end the idea of open file discovery being mandated at the state level as an office policy is something that I think is at least worth talking about.  At a minimum I think that it is difficult to think of office level training, supervision oversight as being particularly meaningful where there aren’t written policies, where there aren’t clear standards at the office level for what prosecutors are supposed to be doing.  And so I think talking about the extent to which offices should be encouraged or even mandated to create some policies if not particular policies is an important reform site to be thinking of.

                   Another important reform site to be thinking of, I think, is the Bar disciplinary process itself.  You know, there are a lot of aspects of the Bar disciplinary process that I think should be on the table for discussion.  Recently there’s been a lot of controversy about the extent to which the Judicial Disciplinary Committee has sort of that it needs to conduct itself essentially entirely in secret.  Well certainly the Bar Disciplinary Committee makes the same claim to total secrecy.  And there are good and understandable reasons for that, but there are also important consequences and the consequences includes that really no allegations of missteps ever come to light unless extremely serious findings or misconduct are made.  And again that leaves this whole space for wondering about how to follow up on missteps.

                   So thinking about the extent to which the process should be conducted entirely in secret, I think is an important place to be thinking.  Also the statute of limitations on Bar complaints is an important site to be thinking about, since it’s certainly true in the context of disclosure issues that it often takes a long time for error to come to light.  It often takes going through an entire process of appeal and maybe going through an entire process of post conviction litigation before either through the normal channels or entirely by chance it emerges that evidence wasn’t disclosed.

                   Currently I think there’s a four year statute of limitations on bar grievances and I think a lot of folks have said that that’s too short.  There are counter arguments to all these points, one point of contention I know with respect to oversight of prospectors is to what extent oversights should be reciprocal right.  So if there’s going to be open file discovery does it need to be reciprocal discovery?   If the statute of limitations needs to be expanded on Bar complaints against prosecutors should it also be expanded on Bar complaints against defense attorneys?  All of these are issues that are out on the table and I think are going to have to be fully vetted in order to make progress about thinking on either side of this.

                   So those are some of the ideas that are out there.

Scott:          Right I do think that on the Brady issues that’s a special case on the statute of limitations because it’s a situation where they’ve concealed evidence and so you don’t know what’s been concealed until it finally comes out, which is what happened in the Michael Morton case.

Jennifer:      Right.

Scott:          And so in those cases maybe there’s a narrower fix where you could say the statute of limitations begins to toll once the Brady material is discovered as…

Jennifer:      Right.

Scott:          …opposed to when it – when the actual concealing of the evidence occurred and that would sure help in the Morton situation for sure.

Jennifer:      Absolutely and certainly in terms of thinking about legal rules and analogs for them.  In civil litigation, you know, there are doctrines that tolls statutes of limitations, you know, for a time in which the circumstances giving rise to a claim are concealed.  And so you could argue that the same sort or premise would justify a special rule in this context even putting aside any finding that would normally be required in the civil context of their being some intentional concealment or intentional, you know, wrong doing.  But simply the fact that the evidence didn’t come to light might toll that statute of limitations.

                   So certainly there are arguments being made that there’s a distinctive situation there.

Scott:          All right, finally you recently authored a chapter on how Connick v. Thompson affects federal civil rights litigation in an upcoming manual and I wanted to ask you about a couple of the points you made in that article.

                   First you mentioned that from a perspective of actual federal civil rights litigation, this might not be quite as damaging as has been sometimes portrayed and I wanted to just ask you why that is to explain that?

Jennifer:      Yes, well, as the summary that I gave of Connick sort of suggested the case is in part about the specific context of prosecutors and decisions they make and the impacts that those decisions have on criminal cases, but there’s a procedural context here which is that there are certain rules surrounding how individuals can sue government entities as apposed to how they can sue individual government actors.  And it is difficult to sue a government entity but it’s been seen as an important space for civil liability especially because individual government actors often enjoy what’s called immunity either absolute immunity or qualified immunity that prevents plaintiffs or the victims of Constitutional violations from recovery damages or ever sort of bringing that wrong doing or misconduct to light to the extent that that’s what needs to be exposed.

                   So municipal liability is an important area.  The concern with Connick is that it may have limited the ability to bring claims against municipal liabilities across the board.  The argument I make in this particular chapter is that I really do think that the case needs to be understood in the special context in which the court – Supreme Court and courts in general have been extremely protective of the space that prosecutors are viewed as needing the discretion prosecutors need to act.  And so I do think that there’s a lot of language in the opinion that supports understanding this as about a very limited field in which liability against prosecutor’s offices should be permitted, but that it shouldn’t be understood to limit the ways in which individual plaintiffs would be able to still invoke existing rules to proceed against, you know, police departments or medical examiners offices or…

Scott:          The county ...

Jennifer:      …the other – or, right, the county or its subunits, the other sort of entity level criminal justice actors that are sometimes the defendants in these civil rights actions.

Scott:          Gotcha.  All right, and finally you called Thompson a “bait and switch” and I wanted you to explain exactly what you meant by that?

Jennifer:      Yes, well it’s actually an explanation that connects back to why I think this conversation about Connick v. Thompson is so important.  You know, prior to the decision in Connick the Court had already made very clear that individual prosecutors essentially couldn’t be liable under any circumstances for any of the actions taken when they prosecuted.  So whether exculpatory evidence is intentionally withheld with malice or whether it’s accidentally not disclosed with absolutely no ill intention at all, the rule is clear individual prosecutors can’t be liable.  And the Court had always said, you know, “the reason why we’re not concerned about taking that mechanism of oversight off the table was because, well, we’ve got other mechanisms of oversight,” right, including for example, the ability to proceed in civil actions against an entity.  And in other contexts the court had pointed to the availability of proceeding against entities as a sort of antidote to other limitations on civil liabilities.  So, in qualified immunity cases where the court says you can’t proceed against this particular police officer, don’t worry because if there’s a systemic problem you can sue the county or you can sue the office.

                   Well. without too much reflection on that other area of case law the court comes over in Connick and says, no we’re taking this off the table as well. And so there’s a concern, I think, after Connick that without reflecting on the full field of potential remedies and potential mechanisms of oversight in that light, the court is sort of offering an avenue and then taking it off the table.  And the point of this conversation that is happening on Thursday, and happening all over the country, is to make sure that what is sort of promised by the court in Connick what’s held out as what – you know, what’s in the offing for oversight and for accountability is really there and is meaningful and that the public knows that it has the right to demand it.

Scott:          All right, well thank you very much Jennifer.  I appreciate you coming by to chat with us about this and we’ll look forward to the event on Thursday it’ll be Webcast live if I’m not mistaken and…

Jennifer:      That’s right I think the stream will be available on prosecutorialoversight.org.

Scott:          All right and we’ll also post a link to that on Grits along with this podcast.  So thanks for coming by today.

Jennifer:      Thanks so much Scott.         

Transcribed by:  http://idictate.com; copyedited by Scott Henson; paid for by generous Grits donors.