CONNICK v. THOMPSON
John Thompson sued the Orleans Parish District Attorney's Office, the District Attorney, Harry Connick, in his official and individual capacities, and several assistant district attorneys in their official capacities under 42 U.S.C § 1983 in a Louisiana federal district court. Mr. Thompson served fourteen years on death row for a crime he did not commit because prosecutors failed to turn over blood work in a related case. The jury awarded Mr. Thompson $14 million against Mr. Connick in his official capacity. On appeal, an en banc U.S. Court of Appeals for the Fifth Circuit rendered a tie vote and; thus by rule, affirmed the district court.
Can a prosecutor's office be held liable for the illegal conduct of one of its prosecutors, on the theory that the office failed to adequately train its employees, when there has been only one violation resulting from that deficient training?
Legal provision: Section 1983
No. A divided Supreme Court held that a prosecutor's office could not be held liable for the illegal conduct of one of its prosecutors when there has been only one violation resulting from that deficient training. Justice Clarence Thomas wrote the majority opinion for the court. In a dissent read from the bench, Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, argued that the "what happened here, the Court's opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct." Instead, Ginsburg contended, evidence "established persistent, deliberately indifferent conduct for which the District Attorney's Office bears responsibility under §1983."
Justice Antonin Scalia joined the majority opinion but filed a separate concurrence, joined by Justice Samuel Alito, which responded to the dissent.
OPINION OF THE COURT
CONNICK V. THOMPSON
563 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
HARRY F. CONNICK, DISTRICT ATTORNEY, et al., PETITIONERS v. JOHN THOMPSON
on writ of certiorari to the united states court of appeals for the fifth circuit
[March 29, 2011]
Justice Thomas delivered the opinion of the Court.
The Orleans Parish District Attorney’s Office now concedes that, in prosecuting respondent John Thompson for attempted armed robbery, prosecutors failed to disclose evidence that should have been turned over to the defense under Brady v. Maryland, 373 U. S. 83 (1963). Thompson was convicted. Because of that conviction Thompson elected not to testify in his own defense in his later trial for murder, and he was again convicted. Thompson spent 18 years in prison, including 14 years on death row. One month before Thompson’s scheduled execution, his investigator discovered the undisclosed evidence from his armed robbery trial. The reviewing court determined that the evidence was exculpatory, and both of Thompson’s convictions were vacated.
After his release from prison, Thompson sued petitioner Harry Connick, in his official capacity as the Orleans Parish District Attorney, for damages under Rev. Stat. §1979, 42 U. S. C. §1983. Thompson alleged that Connick had failed to train his prosecutors adequately about their duty to produce exculpatory evidence and that the lack of training had caused the nondisclosure in Thompson’s rob-bery case. The jury awarded Thompson $14 million, and the Court of Appeals for the Fifth Circuit affirmed by an evenly divided en banc court. We granted certiorari to decide whether a district attorney’s office may be held liable under §1983 for failure to train based on a single Brady violation. We hold that it cannot.
In early 1985, John Thompson was charged with the murder of Raymond T. Liuzza, Jr. in New Orleans. Publicity following the murder charge led the victims of an unrelated armed robbery to identify Thompson as their attacker. The district attorney charged Thompson with attempted armed robbery.
As part of the robbery investigation, a crime scene technician took from one of the victims’ pants a swatch of fabric stained with the robber’s blood. Approximately one week before Thompson’s armed robbery trial, the swatch was sent to the crime laboratory. Two days before the trial, assistant district attorney Bruce Whittaker received the crime lab’s report, which stated that the perpetrator had blood type B. There is no evidence that the prosecutors ever had Thompson’s blood tested or that they knew what his blood type was. Whittaker claimed he placed the report on assistant district attorney James Williams’ desk, but Williams denied seeing it. The report was never disclosed to Thompson’s counsel.
Williams tried the armed robbery case with assistant district attorney Gerry Deegan. On the first day of trial, Deegan checked all of the physical evidence in the case out of the police property room, including the blood-stained swatch. Deegan then checked all of the evidence but the swatch into the courthouse property room. The prosecutors did not mention the swatch or the crime lab report at trial, and the jury convicted Thompson of attempted armed robbery.
A few weeks later, Williams and special prosecutor Eric Dubelier tried Thompson for the Liuzza murder. Because of the armed robbery conviction, Thompson chose not to testify in his own defense. He was convicted and sentenced to death. State v. Thompson, 516 So. 2d 349 (La. 1987). In the 14 years following Thompson’s murder conviction, state and federal courts reviewed and denied his challenges to the conviction and sentence. See State ex rel. Thompson v. Cain, 95–2463 (La. 4/25/96), 672 So. 2d 906; Thompson v. Cain, 161 F. 3d 802 (CA5 1998). The State scheduled Thompson’s execution for May 20, 1999.
In late April 1999, Thompson’s private investigator discovered the crime lab report from the armed robbery investigation in the files of the New Orleans Police Crime Laboratory. Thompson was tested and found to have blood type O, proving that the blood on the swatch was not his. Thompson’s attorneys presented this evidence to the district attorney’s office, which, in turn, moved to stay the execution and vacate Thompson’s armed robbery conviction.[Footnote 1] The Louisiana Court of Appeals then reversed Thompson’s murder conviction, concluding that the armed robbery conviction unconstitutionally deprived Thompson of his right to testify in his own defense at the murder trial. State v. Thompson, 2002–0361 (La. App. 7/17/02), 825 So. 2d 552. In 2003, the district attorney’s office retried Thompson for Liuzza’s murder.[Footnote 2] The jury found him not guilty.
Thompson then brought this action against the district attorney’s office, Connick, Williams, and others, alleging that their conduct caused him to be wrongfully convicted, incarcerated for 18 years, and nearly executed. The only claim that proceeded to trial was Thompson’s claim under §1983 that the district attorney’s office had violated Brady by failing to disclose the crime lab report in his armed robbery trial. See Brady, 373 U. S. 83. Thompson alleged liability under two theories: (1) the Brady violation was caused by an unconstitutional policy of the district attorney’s office; and (2) the violation was caused by Connick’s deliberate indifference to an obvious need to train the prosecutors in his office in order to avoid such constitutional violations.
Before trial, Connick conceded that the failure to produce the crime lab report constituted a Brady violation.[Footnote 3] See Record EX608, EX880. Accordingly, the District Court instructed the jury that the “only issue” was whether the nondisclosure was caused by either a policy, practice, or custom of the district attorney’s office or a deliberately indifferent failure to train the office’s prosecutors. Record 1615.
Although no prosecutor remembered any specific training session regarding Brady prior to 1985, it was undisputed at trial that the prosecutors were familiar with the general Brady requirement that the State disclose to the defense evidence in its possession that is favorable to the accused. Prosecutors testified that office policy was to turn crime lab reports and other scientific evidence over to the defense. They also testified that, after the discovery of the undisclosed crime lab report in 1999, prosecutors disagreed about whether it had to be disclosed under Brady absent knowledge of Thompson’s blood type.
The jury rejected Thompson’s claim that an unconstitutional office policy caused the Brady violation, but found the district attorney’s office liable for failing to train the prosecutors. The jury awarded Thompson $14 million in damages, and the District Court added more than $1 million in attorney’s fees and costs.
After the verdict, Connick renewed his objection—which he had raised on summary judgment—that he could not have been deliberately indifferent to an obvious need for more or different Brady training because there was no evidence that he was aware of a pattern of similar Brady violations. The District Court rejected this argument for the reasons that it had given in the summary judgment order. In that order, the court had concluded that a pattern of violations is not necessary to prove deliberate indifference when the need for training is “so obvious.” No. Civ. A. 03–2045 (ED La., Nov. 15, 2005), App. to Pet. for Cert. 141a, 2005 WL 3541035, *13. Relying on Canton v. Harris, 489 U. S. 378 (1989), the court had held that Thompson could demonstrate deliberate indifference by proving that “the DA’s office knew to a moral certainty that assistan[t] [district attorneys] would acquire Brady material, that without training it is not always obvious what Brady requires, and that withholding Brady material will virtually always lead to a substantial violation of constitutional rights.”[Footnote 4] App. to Pet. for Cert. 141a, 2005 WL 3541035, *13.
A panel of the Court of Appeals for the Fifth Circuit affirmed. The panel acknowledged that Thompson did not present evidence of a pattern of similar Brady violations, 553 F. 3d 836, 851 (2008), but held that Thompson did not need to prove a pattern, id., at 854. According to the panel, Thompson demonstrated that Connick was on notice of an obvious need for Brady training by presenting evidence “that attorneys, often fresh out of law school, would undoubtedly be required to confront Brady issues while at the DA’s Office, that erroneous decisions regarding Brady evidence would result in serious constitutional violations, that resolution of Brady issues was often unclear, and that training in Brady would have been helpful.” 553 F. 3d, at 854.
The Court of Appeals sitting en banc vacated the panel opinion, granted rehearing, and divided evenly, thereby affirming the District Court. 578 F. 3d 293 (CA5 2009) (per curiam). In four opinions, the divided en banc court disputed whether Thompson could establish municipal liability for failure to train the prosecutors based on the single Brady violation without proving a prior pattern of similar violations, and, if so, what evidence would make that showing. We granted certiorari. 559 U. S. ___ (2010).
The Brady violation conceded in this case occurred when one or more of the four prosecutors involved with Thompson’s armed robbery prosecution failed to disclose the crime lab report to Thompson’s counsel. Under Thompson’s failure-to-train theory, he bore the burden of proving both (1) that Connick, the policymaker for the district attorney’s office, was deliberately indifferent to the need to train the prosecutors about their Brady disclosure obligation with respect to evidence of this type and (2) that the lack of training actually caused the Brady violation in this case. Connick argues that he was entitled to judgment as a matter of law because Thompson did not prove that he was on actual or constructive notice of, and therefore deliberately indifferent to, a need for more or different Brady training. We agree.[Footnote 5]
Title 42 U. S. C. §1983 provides in relevant part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress … .”
A municipality or other local government may be liable under this section if the governmental body itself “subjects” a person to a deprivation of rights or “causes” a person “to be subjected” to such deprivation. See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 692 (1978). But, under §1983, local governments are responsible only for “their own illegal acts.” Pembaur v. Cincinnati, 475 U. S. 469, 479 (1986) (citing Monell, 436 U. S., at 665–683). They are not vicariously liable under §1983 for their employees’ actions. See id., at 691; Canton, 489 U. S., at 392; Board of Comm’rs of Bryan Cty. v. Brown, 520 U. S. 397, 403 (1997) (collecting cases).
Plaintiffs who seek to impose liability on local governments under §1983 must prove that “action pursuant to official municipal policy” caused their injury. Monell, 436 U. S., at 691; see id., at 694. Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. See ibid.; Pembaur, supra, at 480–481; Adickes v. S. H. Kress & Co., 398 U. S. 144, 167–168 (1970). These are “action[s] for which the municipality is actually responsible.” Pembaur, supra, at 479–480.
In limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of §1983. A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train. See Oklahoma City v. Tuttle, 471 U. S. 808, 822–823 (1985) (plurality opinion) (“[A] ‘policy’ of ‘inadequate training’ ” is “far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell”). To satisfy the statute, a municipality’s failure to train its employees in a relevant respect must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Canton, 489 U. S., at 388. Only then “can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under §1983.” Id., at 389.
“ ‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bryan Cty., 520 U. S., at 410. Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program. Id., at 407. The city’s “policy of inaction” in light of notice that its program will cause constitutional violations “is the functional equivalent of a decision by the city itself to violate the Constitution.” Canton, 489 U. S., at 395 (O’Connor, J., concurring in part and dissenting in part). A less stringent standard of fault for a failure-to-train claim “would result in de facto respondeat superior liability on municipalities … .” Id., at 392; see also Pembaur, supra, at 483 (opinion of Brennan, J.) (“[M]unicipal liability under §1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by [the relevant] officials …”).
A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train. Bryan Cty., 520 U. S., at 409. Policymakers’ “continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the ‘deliberate indifference’—necessary to trigger municipal liability.” Id., at 407. Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.
Although Thompson does not contend that he proved a pattern of similar Brady violations, 553 F. 3d, at 851, vacated, 578 F. 3d 293 (en banc), he points out that, during the ten years preceding his armed robbery trial, Louisiana courts had overturned four convictions because of Brady violations by prosecutors in Connick’s office.[Footnote 6] Those four reversals could not have put Connick on notice that the office’s Brady training was inadequate with respect to the sort of Brady violation at issue here. None of those cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind. Because those incidents are not similar to the violation at issue here, they could not have put Connick on notice that specific training was necessary to avoid this constitutional violation.[Footnote 7]
Instead of relying on a pattern of similar Brady violations, Thompson relies on the “single-incident” liability that this Court hypothesized in Canton. He contends that the Brady violation in his case was the “obvious” consequence of failing to provide specific Brady training, and that this showing of “obviousness” can substitute for the pattern of violations ordinarily necessary to establish municipal culpability.
In Canton, the Court left open the possibility that, “in a narrow range of circumstances,” a pattern of similar violations might not be necessary to show deliberate indifference. Bryan Cty., supra, at 409. The Court posed the hypothetical example of a city that arms its police force with firearms and deploys the armed officers into the public to capture fleeing felons without training the officers in the constitutional limitation on the use of deadly force. Canton, supra, at 390, n. 10. Given the known frequency with which police attempt to arrest fleeing felons and the “predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights,” the Court theorized that a city’s decision not to train the officers about constitutional limits on the use of deadly force could reflect the city’s deliberate indifference to the “highly predictable consequence,” namely, violations of constitutional rights. Bryan Cty., supra, at 409. The Court sought not to foreclose the possibility, however rare, that the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under §1983 without proof of a pre-existing pattern of violations.
Failure to train prosecutors in their Brady obligations does not fall within the narrow range of Canton’s hypothesized single-incident liability. The obvious need for specific legal training that was present in the Canton scenario is absent here. Armed police must sometimes make split-second decisions with life-or-death consequences. There is no reason to assume that police academy applicants are familiar with the constitutional constraints on the use of deadly force. And, in the absence of training, there is no way for novice officers to obtain the legal knowledge they require. Under those circumstances there is an obvious need for some form of training. In stark contrast, legal “[t]raining is what differentiates attorneys from average public employees.” 578 F. 3d, at 304–305 (opinion of Clement, J.).
Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority of jurisdictions must do both. See, e.g., La. State Bar Assn. (LSBA), Articles of Incorporation, La. Rev. Stat. Ann. §37, ch. 4, App., Art. 14, §7 (1988 West Supp.) (as amended through 1985). These threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Cf. United States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting that the presumption “that the lawyer is competent to provide the guiding hand that the defendant needs” applies even to young and inexperienced lawyers in their first jury trial and even when the case is complex).
Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements. See, e.g., LSBA, Articles of Incorporation, Art. 16, Rule 1.1(b) (effective 1987); La. Sup. Ct. Rule XXX (effective 1988). Even those few jurisdictions that do not impose mandatory continuing-education requirements mandate that attorneys represent their clients competently and encourage attorneys to engage in continuing study and education. See, e.g., Mass. Rule Prof. Conduct 1.1 and comment 6 (West 2006). Before Louisiana adopted continuing-education requirements, it imposed similar general competency requirements on its state bar. LSBA, Articles of Incorporation, Art. 16, EC 1–1, 1–2, DR 6–101 (West 1974) (effective 1971).
Attorneys who practice with other attorneys, such as in district attorney’s offices, also train on the job as they learn from more experienced attorneys. For instance, here in the Orleans Parish District Attorney’s Office, junior prosecutors were trained by senior prosecutors who supervised them as they worked together to prepare cases for trial, and trial chiefs oversaw the preparation of the cases. Senior attorneys also circulated court decisions and instructional memoranda to keep the prosecutors abreast of relevant legal developments.
In addition, attorneys in all jurisdictions must satisfy character and fitness standards to receive a law license and are personally subject to an ethical regime designed to reinforce the profession’s standards. See, e.g., LSBA, Articles of Incorporation, Art. 14, §7 (1985); see generally id., Art. 16 (1971) (Code of Professional Responsibility). Trial lawyers have a “duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland v. Washington, 466 U. S. 668, 688 (1984). Prosecutors have a special “duty to seek justice, not merely to convict.” LSBA, Articles of Incorporation, Art. 16, EC 7–13 (1971); ABA Standards for Criminal Justice 3–1.1(c) (2d ed. 1980). Among prosecutors’ unique ethical obligations is the duty to produce Brady evidence to the defense. See, e.g., LSBA, Articles of Incorporation, Art. 16, EC 7–13 (1971); ABA Model Rule of Prof. Conduct 3.8(d) (1984).[Footnote 8] An attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment. See, e.g., LSBA, Articles of Incorporation, Art. 15, §§5, 6 (1971); id., Art. 16, DR 1–102; ABA Model Rule of Prof. Conduct 8.4 (1984).
In light of this regime of legal training and professional responsibility, recurring constitutional violations are not the “obvious consequence” of failing to provide prosecutors with formal in-house training about how to obey the law. Bryan Cty., 520 U. S., at 409. Prosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain. A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations in “the usual and recurring situations with which [the prosecutors] must deal.”[Footnote 9] Canton, 489 U. S., at 391. A licensed attorney making legal judgments, in his capacity as a prosecutor, about Brady material simply does not present the same “highly predictable” constitutional danger as Canton’s untrained officer.
A second significant difference between this case and the example in Canton is the nuance of the allegedly necessary training. The Canton hypothetical assumes that the armed police officers have no knowledge at all of the constitutional limits on the use of deadly force. But it is undisputed here that the prosecutors in Connick’s office were familiar with the general Brady rule. Thompson’s complaint therefore cannot rely on the utter lack of an ability to cope with constitutional situations that underlies the Canton hypothetical, but rather must assert that prosecutors were not trained about particular Brady evidence or the specific scenario related to the violation in his case. That sort of nuance simply cannot support an inference of deliberate indifference here. As the Court said in Canton, “[i]n virtually every instance where a person has had his or her constitutional rights violated by a city employee, a §1983 plaintiff will be able to point to something the city ‘could have done’ to prevent the unfortunate incident.” 489 U. S., at 392 (citing Tuttle, 471 U. S., at 823 (plurality opinion)).
Thompson suggests that the absence of any formal training sessions about Brady is equivalent to the complete absence of legal training that the Court imagined in Canton. But failure-to-train liability is concerned with the substance of the training, not the particular instructional format. The statute does not provide plaintiffs or courts carte blanche to micromanage local governments throughout the United States.
We do not assume that prosecutors will always make correct Brady decisions or that guidance regarding specific Brady questions would not assist prosecutors. But showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability. “[P]rov[ing] that an injury or accident could have been avoided if an [employee] had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct” will not suffice. Canton, supra, at 391. The possibility of single-incident liability that the Court left open in Canton is not this case.[Footnote 10]
The dissent rejects our holding that Canton’s hypothesized single-incident liability does not, as a legal matter, encompass failure to train prosecutors in their Brady obligation. It would instead apply the Canton hypothetical to this case, and thus devotes almost all of its opinion to explaining why the evidence supports liability under that theory.[Footnote 11] But the dissent’s attempt to address our holding—by pointing out that not all prosecutors will necessarily have enrolled in criminal procedure class—misses the point. See post, at 29–30. The reason why the Canton hypothetical is inapplicable is that attorneys, unlike police officers, are equipped with the tools to find, interpret, and apply legal principles.
By the end of its opinion, however, the dissent finally reveals that its real disagreement is not with our holding today, but with this Court’s precedent. The dissent does not see “any reason,” post, at 31, for the Court’s conclusion in Bryan County that a pattern of violations is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train, 520 U. S., at 409. Cf. id., at 406–408 (explaining why a pattern of violations is ordinarily necessary). But cf. post, at 30–31 (describing our reliance on Bryan County as “imply[ing]” a new “limitation” on §1983). As our precedent makes clear, proving that a municipality itself actually caused a constitutional violation by failing to train the offending employee presents “difficult problems of proof,” and we must adhere to a “stringent standard of fault,” lest municipal liability under §1983 collapse into respondeat superior.[Footnote 12] Bryan County, 520 U. S., at 406, 410; see Canton, 489 U. S., at 391–392.
The District Court and the Court of Appeals panel erroneously believed that Thompson had proved deliberate indifference by showing the “obviousness” of a need for additional training. They based this conclusion on Connick’s awareness that (1) prosecutors would confront Brady issues while at the district attorney’s office; (2) inexperienced prosecutors were expected to understand Brady’s requirements; (3) Brady has gray areas that make for difficult choices; and (4) erroneous decisions regarding Brady evidence would result in constitutional violations. 553 F. 3d, at 854; App. to Pet. for Cert. 141a, 2005 WL 3541035, *13. This is insufficient.
It does not follow that, because Brady has gray areas and some Brady decisions are difficult, prosecutors will so obviously make wrong decisions that failing to train them amounts to “a decision by the city itself to violate the Constitution.” Canton, 489 U. S., at 395 (O’Connor, J., concurring in part and dissenting in part). To prove deliberate indifference, Thompson needed to show that Connick was on notice that, absent additional specified training, it was “highly predictable” that the prosecutors in his office would be confounded by those gray areas and make incorrect Brady decisions as a result. In fact, Thompson had to show that it was so predictable that failing to train the prosecutors amounted to conscious disregard for defendants’ Brady rights. See Bryan Cty., 520 U. S., at 409; Canton, supra, at 389. He did not do so.
The role of a prosecutor is to see that justice is done. Berger v. United States, 295 U. S. 78, 88 (1935). “It is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Ibid. By their own admission, the prosecutors who tried Thompson’s armed robbery case failed to carry out that responsibility. But the only issue before us is whether Connick, as the policymaker for the district attorney’s office, was deliberately indifferent to the need to train the attorneys under his authority.
We conclude that this case does not fall within the narrow range of “single-incident” liability hypothesized in Canton as a possible exception to the pattern of violations necessary to prove deliberate indifference in §1983 actions alleging failure to train. The District Court should have granted Connick judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would “establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution.” Canton, supra, at 395 (opinion of O’Connor, J.).
The judgment of the United States Court of Appeals for the Fifth Circuit is reversed.
It is so ordered.Footnote 1
After Thompson discovered the crime lab report, former assistant district attorney Michael Riehlmann revealed that Deegan had confessed to him in 1994 that he had “intentionally suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated the defendant.” Record EX583; see also id., at 2677. Deegan apparently had been recently diagnosed with terminal cancer when he made his confession. Following a disciplinary complaint by the district attorney’s office, the Supreme Court of Louisiana reprimanded Riehlmann for failing to disclose Deegan’s admission earlier. In re Riehlmann, 2004–0680 (La. 1/19/05), 891 So. 2d 1239.Footnote 2
Thompson testified in his own defense at the second trial and presented evidence suggesting that another man committed the murder. That man, the government’s key witness at the first murder trial, had died in the interval between the first and second trials.Footnote 3
Because Connick conceded that the failure to disclose the crime lab report violated Brady, that question is not presented here, and we do not address it.Footnote 4
The District Court rejected Connick’s proposed deliberate indifference jury instruction—which would have required Thompson to prove a pattern of similar violations—for the same reasons as the summary judgment motion. Tr. 1013; Record 993; see also Tr. of Oral Arg. 26.Footnote 5
Because we conclude that Thompson failed to prove deliberate indifference, we need not reach causation. Thus, we do not address whether the alleged training deficiency, or some other cause, was the “ ‘moving force,’ ” Canton v. Harris, 489 U. S. 378, 389 (1989) (quoting Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694 (1978), and Polk County v. Dodson, 454 U. S. 312, 326 (1981)), that “actually caused” the failure to disclose the crime lab report, Canton, supra, at 391.
The same cannot be said for the dissent, however. Affirming the verdict in favor of Thompson would require finding both that he proved deliberate indifference and that he proved causation. Perhaps unsurprisingly, the dissent has not conducted the second step of the analysis, which would require showing that the failure to provide particular training (which the dissent never clearly identifies) “actually caused” the flagrant—and quite possibly intentional—misconduct that occurred in this case. See post, at 21 (opinion of Ginsburg, J.) (assuming that, “[h]ad Brady’s importance been brought home to prosecutors,” the violation at issue “surely” would not have occurred). The dissent believes that evidence that the prosecutors allegedly “misapprehen[ded]” Brady proves causation. Post, at 27, n. 20. Of course, if evidence of a need for training, by itself, were sufficient to prove that the lack of training “actually caused” the violation at issue, no causation requirement would be necessary because every plaintiff who satisfied the deliberate indifference requirement would necessarily satisfy the causation requirement.Footnote 6
Thompson had every incentive at trial to attempt to establish a pattern of similar violations, given that the jury instruction allowed the jury to find deliberate indifference based on, among other things, prosecutors’ “history of mishandling” similar situations. Record 1619.Footnote 7
Thompson also asserts that this case is not about a “single incident” because up to four prosecutors may have been responsible for the nondisclosure of the crime lab report and, according to his allegations, withheld additional evidence in his armed robbery and murder trials. But contemporaneous or subsequent conduct cannot establish a pattern of violations that would provide “notice to the cit[y] and the opportunity to conform to constitutional dictates … .” Canton, 489 U. S., at 395 (O’Connor, J., concurring in part and dissenting in part). Moreover, no court has ever found any of the other Brady violations that Thompson alleges occurred in his armed robbery and murder trials.Footnote 8
The Louisiana State Bar Code of Professional Responsibility included a broad understanding of the prosecutor’s duty to disclose in 1985:
“With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecution’s case or aid the accused.” LSBA, Articles of Incorporation, Art. 16, EC 7–13 (1971); see also ABA Model Rule of Prof. Conduct 3.8(d) (1984) (“The prosecutor in a criminal case shall … make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense …”).
In addition to these ethical rules, the Louisiana Code of Criminal Procedure, with which Louisiana prosecutors are no doubt familiar, in 1985 required prosecutors, upon order of the court, to permit inspection of evidence “favorable to the defendant … which [is] material and relevant to the issue of guilt or punishment,” La. Code Crim. Proc. Ann., Art. 718 (West 1981) (added 1977), as well as “any results or reports” of “scientific tests or experiments, made in connection with or material to the particular case” if those reports are exculpatory or intended for use at trial, id., Art. 719.Footnote 9
Contrary to the dissent’s assertion, see post, at 31, n. 26 (citing post, at 18–20), a prosecutor’s youth is not a “specific reason” not to rely on professional training and ethical obligations. See supra, at 12 (citing United States v. Cronic, 466 U. S. 648, 658, 664 (1984)).Footnote 10
Thompson also argues that he proved deliberate indifference by “direct evidence of policymaker fault” and so, presumably, did not need to rely on circumstantial evidence at all. Brief for Respondent 37. In support, Thompson contends that Connick created a “culture of indifference” in the district attorney’s office, id., at 38, as evidenced by Connick’s own allegedly inadequate understanding of Brady, the office’s unwritten Brady policy that was later incorporated into a 1987 handbook, and an officewide “restrictive discovery policy,” Brief for Respondent 39–40. This argument is essentially an assertion that Connick’s office had an unconstitutional policy or custom. The jury rejected this claim, and Thompson does not challenge that finding.Footnote 11
The dissent spends considerable time finding new Brady violations in Thompson’s trials. See post, at 3–13. How these violations are relevant even to the dissent’s own legal analysis is “a mystery.” Post, at 4, n. 2. The dissent does not list these violations among the “[a]bundant evidence” that it believes supports the jury’s finding that Brady training was obviously necessary. Post, at 16. Nor does the dissent quarrel with our conclusion that contemporaneous or subsequent conduct cannot establish a pattern of violations. The only point appears to be to highlight what the dissent sees as sympathetic, even if legally irrelevant, facts.
In any event, the dissent’s findings are highly suspect. In finding two of the “new” violations, the dissent belatedly tries to reverse the Court of Appeals’ 1998 decision that those Brady claims were “without merit.” Compare Thompson v. Cain, 161 F. 3d 802, 806–808 (CA5) (rejecting Brady claims regarding the Perkins-Liuzza audiotapes and the Perkins police report), with post, at 8–9 (concluding that these were Brady violations). There is no basis to the dissent’s suggestion that materially new facts have called the Court of Appeals’ 1998 decision into question. Cf. State v. Thompson, 2002–0361, p. 6 (La. App. 7/17/02), 825 So. 2d 552, 555 (noting Thompson’s admission that some of his current Brady claims “ha[ve] been rejected by both the Louisiana Supreme Court and the federal courts”). Regarding the blood-stained swatch, which the dissent asserts prosecutors “blocked” the defense from inspecting by sending it to the crime lab for testing, post, at 6, Thompson’s counsel conceded at oral argument that trial counsel had access to the evidence locker where the swatch was recorded as evidence. See Tr. of Oral Arg. 37, 42; Record EX42, EX43 (evidence card identifying “One (1) Piece of Victims [sic] Right Pants Leg, W/Blood” among the evidence in the evidence locker and indicating that some evidence had been checked out); Tr. 401 (testimony from Thompson’s counsel that he “[w]ent down to the evidence room and checked all of the evidence”); id., at 103, 369–370, 586, 602 (testimony that evidence card was “available to the public,” would have been available to Thompson’s counsel, and would have been seen by Thompson’s counsel because it was stapled to the evidence bag in “the normal process”). Moreover, the dissent cannot seriously believe that the jury could have found Brady violations—indisputably, questions of law. See post, at 12, n. 10, 15, n. 11.Footnote 12
Although the dissent acknowledges that “deliberate indifference liability and respondeat superior liability are not one and the same,” the opinion suggests that it believes otherwise. Post, at 32, n. 28; see, e.g., post, at 32 (asserting that “the buck stops with [the district attorney]”); post, at 23 (suggesting municipal liability attaches when “the prosecutors” themselves are “deliberately indifferent to what the law requires”). We stand by the longstanding rule—reaffirmed by a unanimous Court earlier this Term—that to prove a violation of §1983, a plaintiff must prove that “the municipality’s own wrongful conduct” caused his injury, not that the municipality is ultimately responsible for the torts of its employees. Los Angeles County v. Humphries, ante, at 9; see Humphries, ante, at 6, 7 (citing Monell, 436 U. S., at 691).
SCALIA, J., CONCURRING
CONNICK V. THOMPSON
563 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
HARRY F. CONNICK, DISTRICT ATTORNEY, et al., PETITIONERS v. JOHN THOMPSON
on writ of certiorari to the united states court of appeals for the fifth circuit
[March 29, 2011]
Justice Scalia, with whom Justice Alito joins, concurring.
I join the Court’s opinion in full. I write separately only to address several aspects of the dissent.
1. The dissent’s lengthy excavation of the trial record is a puzzling exertion. The question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors, even though no pattern or practice of prior violations put the municipality on notice of a need for specific training that would have prevented it. See Brady v. Maryland, 373 U. S. 83 (1963). That question is a legal one: whether a Brady violation presents one of those rare circumstances we hypothesized in Canton’s footnote 10, in which the need for training in constitutional requirements is so obvious ex ante that the municipality’s failure to provide that training amounts to deliberate indifference to constitutional violations. See Canton v. Harris, 489 U. S. 378, 390, n. 10 (1989).
The dissent defers consideration of this question until page 23 of its opinion. It first devotes considerable space to allegations that Connick’s prosecutors misunderstood Brady when asked about it at trial, see post, at 16–18 (opinion of Ginsburg, J.), and to supposed gaps in the Brady guidance provided by Connick’s office to prosecutors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual published by Connick’s office three years after Thompson’s trial, see post, at 18–21. None of that is relevant. Thompson’s failure-to-train theory at trial was not based on a pervasive culture of indifference to Brady, but rather on the inevitability of mistakes over enough iterations of criminal trials. The District Court instructed the jury it could find Connick deliberately indifferent if:
“First: The District Attorney was certain that prosecutors would confront the situation where they would have to decide which evidence was required by the constitution to be provided to an accused[;]
“Second: The situation involved a difficult choice, or one that prosecutors had a history of mishandling, such that additional training, supervision, or monitoring was clearly needed[; and]
“Third: The wrong choice by a prosecutor in that situation will frequently cause a deprivation of an accused’s constitutional rights.” App. 828.
That theory of deliberate indifference would repeal the law of Monell[Footnote 1] in favor of the Law of Large Numbers. Brady mistakes are inevitable. So are all species of error routinely confronted by prosecutors: authorizing a bad warrant; losing a Batson[Footnote 2] claim; crossing the line in closing argument; or eliciting hearsay that violates the Confrontation Clause. Nevertheless, we do not have “de facto respondeat superior liability,” Canton, 489 U. S., at 392, for each such violation under the rubric of failure-to-train simply because the municipality does not have a professional educational program covering the specific violation in sufficient depth.[Footnote 3] Were Thompson’s theory the law, there would have been no need for Canton’s footnote to confine its hypothetical to the extreme circumstance of arming police officers with guns without telling them about the constitutional limitations upon shooting fleeing felons; the District Court’s instructions cover every recurring situation in which citizens’ rights can be violated.
That result cannot be squared with our admonition that failure-to-train liability is available only in “limited circumstances,” id., at 387, and that a pattern of consti-tutional violations is “ordinarily necessary to establish municipal culpability and causation,” Board of Comm’rs of Bryan Cty. v. Brown, 520 U. S. 397, 409 (1997). These restrictions are indispensable because without them, “failure to train” would become a talismanic incantation producing municipal liability “[i]n virtually every instance where a person has had his or her constitutional rights violated by a city employee”—which is what Monell rejects. Canton, 489 U. S., at 392. Worse, it would “engage the federal courts in an endless exercise of second-guessing municipal employee-training programs,” thereby diminishing the autonomy of state and local governments. Ibid.
2. Perhaps for that reason, the dissent does not seriously contend that Thompson’s theory of recovery was proper. Rather, it accuses Connick of acquiescing in that theory at trial. See post, at 25. The accusation is false. Connick’s central claim was and is that failure-to-train liability for a Brady violation cannot be premised on a single incident, but requires a pattern or practice of previous violations. He pressed that argument at the summary judgment stage but was rebuffed. At trial, when Connick offered a jury instruction to the same effect, the trial judge effectively told him to stop bringing up the subject:
“[Connick’s counsel]: Also, as part of that definition in that same location, Your Honor, we would like to include language that says that deliberate indifference to training requires a pattern of similar violations and proof of deliberate indifference requires more than a single isolated act.
“[Thompson’s counsel]: That’s not the law, Your Honor.
“THE COURT: No, I’m not giving that. That was in your motion for summary judgment that I denied.” Tr. 1013.
Nothing more is required to preserve a claim of error. See Fed. Rule Civ. Proc. 51(d)(1)(B).[Footnote 4]
3. But in any event, to recover from a municipality under 42 U. S. C. §1983, a plaintiff must satisfy a “rigorous” standard of causation, Bryan Cty., 520 U. S., at 405; he must “demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id., at 404. Thompson cannot meet that standard. The withholding of evidence in his case was almost certainly caused not by a failure to give prosecutors specific training, but by miscreant prosecutor Gerry Deegan’s willful suppression of evidence he believed to be exculpatory, in an effort to railroad Thompson. According to Deegan’s colleague Michael Riehlmann, in 1994 Deegan confessed to him—in the same conversation in which Deegan revealed he had only a few months to live—that he had “suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated the defendant.” App. 367; see also id., at 362 (“[Deegan] told me … that he had failed to inform the defense of exculpatory information”). I have no reason to disbelieve that account, particularly since Riehlmann’s testimony hardly paints a flattering picture of himself: Riehlmann kept silent about Deegan’s misconduct for another five years, as a result of which he incurred professional sanctions. See In re Riehlmann, 2004–0680 (La. 1/19/05), 891 So. 2d 1239. And if Riehlmann’s story is true, then the “moving force,” Bryan Cty., supra, at 404 (internal quotation marks omitted), behind the suppression of evidence was Deegan, not a failure of continuing legal education.
4. The dissent suspends disbelief about this, insisting that with proper Brady training, “surely at least one” of the prosecutors in Thompson’s trial would have turned over the lab report and blood swatch. Post, at 21. But training must consist of more than mere broad encomiums of Brady: We have made clear that “the identified deficiency in a city’s training program [must be] closely related to the ultimate injury.” Canton, supra, at 391. So even indulging the dissent’s assumption that Thompson’s prosecutors failed to disclose the lab report in good faith—in a way that could be prevented by training—what sort of training would have prevented the good-faith nondisclosure of a blood report not known to be exculpatory?
Perhaps a better question to ask is what legally accurate training would have prevented it. The dissent’s suggestion is to instruct prosecutors to ignore the portion of Brady limiting prosecutors’ disclosure obligations to evidence that is “favorable to an accused,” 373 U. S., at 87. Instead, the dissent proposes that “Connick could have communicated to Orleans Parish prosecutors, in no uncertain terms, that, ‘[i]f you have physical evidence that, if tested, can establish the innocence of the person who is charged, you have to turn it over.’ ” Post, at 20, n. 13 (quoting Tr. of Oral Arg. 34). Though labeled a training suggestion, the dissent’s proposal is better described as a sub silentio expansion of the substantive law of Brady. If any of our cases establishes such an obligation, I have never read it, and the dissent does not cite it.[Footnote 5]
Since Thompson’s trial, however, we have decided a case that appears to say just the opposite of the training the dissent would require: In Arizona v. Youngblood, 488 U. S. 51, 58 (1988), we held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” We acknowledged that “Brady … makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence,” but concluded that “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id., at 57. Perhaps one day we will recognize a distinction between good-faith failures to preserve from destruction evidence whose inculpatory or exculpatory character is unknown, and good-faith failures to turn such evidence over to the defense. But until we do so, a failure to train prosecutors to observe that distinction cannot constitute deliberate indifference.
5. By now the reader has doubtless guessed the best-kept secret of this case: There was probably no Brady violation at all—except for Deegan’s (which, since it was a bad-faith, knowing violation, could not possibly be attributed to lack of training).[Footnote 6] The dissent surely knows this, which is why it leans heavily on the fact that Connick conceded that Brady was violated. I can honor that concession in my analysis of the case because even if it extends beyond Deegan’s deliberate actions, it remains irrelevant to Connick’s training obligations. For any Brady violation apart from Deegan’s was surely on the very frontier of our Brady jurisprudence; Connick could not possibly have been on notice decades ago that he was required to instruct his prosecutors to respect a right to untested evidence that we had not (and still have not) recognized. As a consequence, even if I accepted the dissent’s conclusion that failure-to-train liability could be premised on a single Brady error, I could not agree that the lack of an accurate training regimen caused the violation Connick has conceded.Footnote 1
Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978).Footnote 2
Batson v. Kentucky, 476 U. S. 79 (1986).Footnote 3
I do not share the dissent’s confidence that this result will be avoided by the instruction’s requirement that “ ‘more likely than not the Brady material would have been produced if the prosecutors involved in his underlying criminal cases had been properly trained, supervised or monitored regarding the production of Brady evidence.’ ” Post, at 25, n. 17 (quoting Tr. 1100). How comforting that assurance is depends entirely on what proper training consists of. If it is not limited to training in aspects of Brady that have been repeatedly violated, but includes—as the dissent would have it include here—training that would avoid any one-time violation, the assurance is no assurance at all.Footnote 4
The dissent’s contention that “[t]he instruction Connick proposed resembled the charge given by the District Court,” post, at 25, n. 18, disregards his requested instruction concerning the necessity of a pattern of prior violations. It is meaningless to say that after “the court rejected [Connick’s] categorical position,” as it did, he did not “assail the District Court’s formulation of the deliberate indifference instruction,” post, at 26, n. 18. The prior-pattern requirement was part of Connick’s requested formulation of deliberate indifference: “To prove deliberate indifference, a plaintiff must demonstrate ‘at least a pattern of similar violations arising from training that is so clearly inadequate as to be obviously likely to result in a constitutional violation.’ ” Record, Doc. 94, p. 18 (emphasis added).Footnote 5
What the dissent does cite in support of its theory comes from an unexpected source: Connick’s testimony about what qualifies as Brady material. See post, at 20–21, n. 13. (“Or Connick could have told prosecutors what he told the jury when he was asked whether a prosecutor must disclose a crime lab report to the defense, even if the pros-ecutor does not know the defendant’s blood type: ‘Under the law, it qualifies as Brady material.’ ” (quoting Tr. 872)). Given the effort the dissent has expended persuading us that Connick’s understanding of Brady is profoundly misguided, its newfound trust in his expertise on the subject is, to the say the least, surprising.Footnote 6
The dissent’s only response to this is that the jury must have found otherwise, since it was instructed that “ ‘[f]or liability to attach because of a failure to train, the fault must be in the training program itself, not in any particular prosecutor.’ ” Post, at 28, n. 20 (quoting Tr. 1098). But this instruction did not require the jury to find that Deegan did not commit a bad-faith, knowing violation; it merely prevented the jury from finding that, if he did so, Connick was liable for a failure to train. I not only agree with that; it is part of my point.
GINSBURG, J., DISSENTING
CONNICK V. THOMPSON
563 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
HARRY F. CONNICK, DISTRICT ATTORNEY, et al., PETITIONERS v. JOHN THOMPSON
on writ of certiorari to the united states court of appeals for the fifth circuit
[March 29, 2011]
Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.
In Brady v. Maryland, 373 U. S. 83, 87 (1963), this Court held that due process requires the prosecution to turn over evidence favorable to the accused and material to his guilt or punishment. That obligation, the parties have stipulated, was dishonored in this case; consequently, John Thompson spent 18 years in prison, 14 of them isolated on death row, before the truth came to light: He was innocent of the charge of attempted armed robbery, and his subsequent trial on a murder charge, by prosecutorial design, was fundamentally unfair.
The Court holds that the Orleans Parish District Attorney’s Office (District Attorney’s Office or Office) cannot be held liable, in a civil rights action under 42 U. S. C. §1983, for the grave injustice Thompson suffered. That is so, the Court tells us, because Thompson has shown only an aberrant Brady violation, not a routine practice of giving short shrift to Brady’s requirements. The evidence presented to the jury that awarded compensation to Thompson, however, points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.
From the top down, the evidence showed, members of the District Attorney’s Office, including the District At-torney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.
What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under §1983.
I dissent from the Court’s judgment mindful that Brady violations, as this case illustrates, are not easily detected. But for a chance discovery made by a defense team investigator weeks before Thompson’s scheduled execution, the evidence that led to his exoneration might have remained under wraps. The prosecutorial concealment Thompson encountered, however, is bound to be repeated unless municipal agencies bear responsibility—made tangible by §1983 liability—for adequately conveying what Brady requires and for monitoring staff compliance. Failure to train, this Court has said, can give rise to municipal liability under §1983 “where the failure … amounts to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Canton v. Harris, 489 U. S. 378, 388 (1989). That standard is well met in this case.
I turn first to a contextual account of the Brady violations that infected Thompson’s trials.
In the early morning hours of December 6, 1984, an assailant shot and killed Raymond T. Liuzza, Jr., son of a prominent New Orleans business executive, on the street fronting the victim’s home. Only one witness saw the assailant. As recorded in two contemporaneous police reports, that eyewitness initially described the assailant as African-American, six feet tall, with “close cut hair.” Record EX2–EX3, EX9.[Footnote 1] Thompson is five feet eight inches tall and, at the time of the murder, styled his hair in a large “Afro.” Id., at EX13. The police reports of the witness’ immediate identification were not disclosed to Thompson or to the court.
While engaged in the murder investigation, the Orleans Parish prosecutors linked Thompson to another violent crime committed three weeks later. On December 28, an assailant attempted to rob three siblings at gunpoint. During the struggle, the perpetrator’s blood stained the oldest child’s pant leg. That blood, preserved on a swatch of fabric cut from the pant leg by a crime scene analyst, was eventually tested. The test conclusively established that the perpetrator’s blood was type B. Id., at EX151. Thompson’s blood is type O. His prosecutors failed to disclose the existence of the swatch or the test results.
One month after the Liuzza murder, Richard Perkins, a man who knew Thompson, approached the Liuzza family. Perkins did so after the family’s announcement of a $15,000 reward for information leading to the murderer’s conviction. Police officers surreptitiously recorded the Perkins-Liuzza conversations.[Footnote 2] As documented on tape, Perkins told the family, “I don’t mind helping [you] catch [the perpetrator], … but I would like [you] to help me and, you know, I’ll help [you].” Id., at EX479, EX481. Once the family assured Perkins, “we’re on your side, we want to try and help you,” id., at EX481, Perkins intimated that Thompson and another man, Kevin Freeman, had been involved in Liuzza’s murder. Perkins thereafter told the police what he had learned from Freeman about the murder, and that information was recorded in a police report. Based on Perkins’ account, Thompson and Freeman were arrested on murder charges.
Freeman was six feet tall and went by the name “Kojak” because he kept his hair so closely trimmed that his scalp was visible. Unlike Thompson, Freeman fit the eyewitness’ initial description of the Liuzza assailant’s height and hair style. As the Court notes, ante, at 4, n. 2, Freeman became the key witness for the prosecution at Thompson’s trial for the murder of Liuzza.
After Thompson’s arrest for the Liuzza murder, the father of the armed robbery victims saw a newspaper photo of Thompson with a large Afro hairstyle and showed it to his children. He reported to the District Attorney’s Office that the children had identified Thompson as their attacker, and the children then picked that same photo out of a “photographic lineup.” Record EX120, EX642–EX643. Indicting Thompson on the basis of these questionable identifications, the District Attorney’s Office did not pause to test the pant leg swatch dyed by the perpetrator’s blood. This lapse ignored or overlooked a prosecutor’s notation that the Office “may wish to do [a] blood test.” Id., at EX122.
The murder trial was scheduled to begin in mid-March 1985. Armed with the later indictment against Thompson for robbery, however, the prosecutors made a strategic choice: They switched the order of the two trials, proceeding first on the robbery indictment. Id., at EX128–EX129. Their aim was twofold. A robbery conviction gained first would serve to inhibit Thompson from testifying in his own defense at the murder trial, for the prior conviction could be used to impeach his credibility. In addition, an armed robbery conviction could be invoked at the penalty phase of the murder trial in support of the prosecution’s plea for the death penalty. Id., at 682.
Recognizing the need for an effective prosecution team, petitioner Harry F. Connick, District Attorney for the Parish of Orleans, appointed his third-in-command, Eric Dubelier, as special prosecutor in both cases. Dubelier enlisted Jim Williams to try the armed robbery case and to assist him in the murder case. Gerry Deegan assisted Williams in the armed robbery case. Bruce Whittaker, the fourth prosecutor involved in the cases, had approved Thompson’s armed robbery indictment.[Footnote 3]
During pretrial proceedings in the armed robbery case, Thompson filed a motion requesting access to all materials and information “favorable to the defendant” and “material and relevant to the issue of guilt or punishment,” as well as “any results or reports” of “scientific tests or experiments.” Id., at EX144, EX145. Prosecutorial responses to this motion fell far short of Brady compliance.[Footnote 4]
First, prosecutors blocked defense counsel’s inspection of the pant leg swatch stained by the robber’s blood. Although Dubelier’s April 3 response stated, “Inspection to be permitted,” id., at EX149, the swatch was signed out from the property room at 10:05 a.m. the next day, and was not returned until noon on April 10, the day before trial, id., at EX43, EX670. Thompson’s attorney inspected the evidence made available to him and found no blood evidence. No one told defense counsel about the swatch and its recent removal from the property room. Id., at EX701–EX702; Tr. 400–402. But cf. ante, at 17, n. 11 (Thompson’s attorney had “access to the evidence locker where the swatch was recorded as evidence.”).[Footnote 5]
Second, Dubelier or Whittaker ordered the crime laboratory to rush a pretrial test of the swatch. Tr. 952–954. Whittaker received the lab report, addressed to his attention, two days before trial commenced. Immediately thereafter, he placed the lab report on Williams’ desk. Record EX151, EX589. Although the lab report conclusively identified the perpetrator’s blood type, id., at EX151, the District Attorney’s Office never revealed the report to the defense.[Footnote 6]
Third, Deegan checked the swatch out of the property room on the morning of the first day of trial, but the prosecution did not produce the swatch at trial. Id., at EX43. Deegan did not return the swatch to the property room after trial, and the swatch has never been found. Tr. of Oral Arg. 37.
“[B]ased solely on the descriptions” provided by the three victims, Record 683, the jury convicted Thompson of attempted armed robbery. The court sentenced him to 49.5 years without possibility of parole—the maximum available sentence.
Prosecutors continued to disregard Brady during the murder trial, held in May 1985, at which the prosecution’s order-of-trial strategy achieved its aim.[Footnote 7] By prosecuting Thompson for armed robbery first—and withholding blood evidence that might have exonerated Thompson of that charge—the District Attorney’s Office disabled Thompson from testifying in his own defense at the murder trial.[Footnote 8] As earlier observed, see supra, at 5, impeaching use of the prior conviction would have severely undermined Thompson’s credibility. And because Thompson was effectively stopped from testifying in his own defense, the testimony of the witnesses against him gained force. The prosecution’s failure to reveal evidence that could have impeached those witnesses helped to seal Thompson’s fate.
First, the prosecution undermined Thompson’s efforts to impeach Perkins. Perkins testified that he volunteered information to the police with no knowledge of reward money. Record EX366, EX372–EX373. Because prosecutors had not produced the audiotapes of Perkins’ conversations with the Liuzza family (or a police summary of the tapes), Thompson’s attorneys could do little to cast doubt on Perkins’ credibility. In closing argument, the prosecution emphasized that Thompson presented no “direct evidence” that reward money had motivated any of the witnesses. Id., at EX3171–EX3172.
Second, the prosecution impeded Thompson’s impeachment of key witness Kevin Freeman. It did so by failing to disclose a police report containing Perkins’ account of what he had learned from Freeman about the murder. See supra, at 4. Freeman’s trial testimony was materially inconsistent with that report. Tr. 382–384, 612–614; Record EX270–EX274. Lacking any knowledge of the police report, Thompson could not point to the inconsistencies.
Third, and most vital, the eyewitness’ initial description of the assailant’s hair, see supra, at 3, was of prime relevance, for it suggested that Freeman, not Thompson, murdered Liuzza, see supra, at 4. The materiality of the eyewitness’ contemporaneous description of the murderer should have been altogether apparent to the prosecution. Failure to produce the police reports setting out what the eyewitness first said not only undermined efforts to impeach that witness and the police officer who initially interviewed him. The omission left defense counsel without knowledge that the prosecutors were restyling the killer’s “close cut hair” into an “Afro.”
Prosecutors finessed the discrepancy between the eyewitness’ initial description and Thompson’s appearance. They asked leading questions prompting the eyewitness to agree on the stand that the perpetrator’s hair was “afro type,” yet “straight back.” Record EX322–EX323. Corroboratively, the police officer—after refreshing his recollection by reviewing material at the prosecution’s table—gave artful testimony. He characterized the witness’ initial description of the perpetrator’s hair as “black and short, afro style.” Id., at EX265 (emphasis added). As prosecutors well knew, nothing in the withheld police reports, which described the murderer’s hair simply as “close cut,” portrayed a perpetrator with an Afro or Afro-style hair.
The jury found Thompson guilty of first-degree murder. Having prevented Thompson from testifying that Freeman was the killer, the prosecution delivered its ultimate argument. Because Thompson was already serving a near-life sentence for attempted armed robbery, the prosecution urged, the only way to punish him for murder was to execute him. The strategy worked as planned; Thompson was sentenced to death.
Thompson discovered the prosecutors’ misconduct through a serendipitous series of events. In 1994, nine years after Thompson’s convictions, Deegan, the assistant prosecutor in the armed robbery trial, learned he was terminally ill. Soon thereafter, Deegan confessed to his friend Michael Riehlmann that he had suppressed blood evidence in the armed robbery case. Id., at EX709. Deegan did not heed Riehlmann’s counsel to reveal what he had done. For five years, Riehlmann, himself a former Orleans Parish prosecutor, kept Deegan’s confession to himself. Id., at EX712–EX713.
On April 16, 1999, the State of Louisiana scheduled Thompson’s execution. Id., at EX1366–EX1367. In an eleventh-hour effort to save his life, Thompson’s attorneys hired a private investigator. Deep in the crime lab archives, the investigator unearthed a microfiche copy of the lab report identifying the robber’s blood type. The copy showed that the report had been addressed to Whittaker. See supra, at 7. Thompson’s attorneys contacted Whittaker, who informed Riehlmann that the lab report had been found. Riehlmann thereupon told Whittaker that Deegan “had failed to turn over stuff that might have been exculpatory.” Tr. 718. Riehlmann prepared an affidavit describing Deegan’s disclosure “that he had intentionally suppressed blood evidence in the armed robbery trial of John Thompson.” Record EX583.
Thompson’s lawyers presented to the trial court the crime lab report showing that the robber’s blood type was B, and a report identifying Thompson’s blood type as O. This evidence proved Thompson innocent of the robbery. The court immediately stayed Thompson’s execution, id., at EX590, and commenced proceedings to assess the newly discovered evidence.
Connick sought an abbreviated hearing. A full hearing was unnecessary, he urged, because the Office had confessed error and had moved to dismiss the armed robbery charges. See, e.g., id., at EX617. The court insisted on a public hearing. Given “the history of this case,” the court said, it “was not willing to accept the representations that [Connick] and [his] office made [in their motion to dismiss].” id., at EX882. After a full day’s hearing, the court vacated Thompson’s attempted armed robbery conviction and dismissed the charges. Before doing so, the court admonished:
“[A]ll day long there have been a number of young Assistant D. A.’s … sitting in this courtroom watching this, and I hope they take home … and take to heart the message that this kind of conduct cannot go on in this Parish if this Criminal Justice System is going to work.” Id., at EX883.
The District Attorney’s Office then initiated grand jury proceedings against the prosecutors who had withheld the lab report. Connick terminated the grand jury after just one day. He maintained that the lab report would not be Brady material if prosecutors did not know Thompson’s blood type. Tr. 986; cf. supra, at 7, n. 6. And he told the investigating prosecutor that the grand jury “w[ould] make [his] job more difficult.” Tr. 978–979. In protest, that prosecutor tendered his resignation.
Thereafter, the Louisiana Court of Appeal reversed Thompson’s murder conviction. State v. Thompson, 2002–0361, p. 10 (7/17/02), 825 So. 2d 552, 558. The unlawfully procured robbery conviction, the court held, had violated Thompson’s right to testify and thus fully present his defense in the murder trial. Id., at 557. The merits of several Brady claims arising out of the murder trial, the court observed, had therefore become “moot.” 825 So. 2d, at 555; see also Record 684.[Footnote 9] But cf. ante, at 10–11, n. 7, 16–17, n. 11 (suggesting that there were no Brady violations in the murder prosecution because no court had adjudicated any violations).[Footnote 10]
Undeterred by his assistants’ disregard of Thompson’s rights, Connick retried him for the Liuzza murder. Thompson’s defense was bolstered by evidence earlier unavailable to him: ten exhibits the prosecution had not disclosed when Thompson was first tried. The newly produced items included police reports describing the assailant in the murder case as having “close cut” hair, the police report recounting Perkins’ meetings with the Liuzza family, see supra, at 3–4, audio recordings of those meetings, and a 35-page supplemental police report. After deliberating for only 35 minutes, the jury found Thompson not guilty.
On May 9, 2003, having served more than 18 years in prison for crimes he did not commit, Thompson was released.
On July 16, 2003, Thompson commenced a civil action under 42 U. S. C. §1983 alleging that Connick, other officials of the Orleans Parish District Attorney’s Office, and the Office itself, had violated his constitutional rights by wrongfully withholding Brady evidence. Thompson sought to hold Connick and the District Attorney’s Office liable for failure adequately to train prosecutors concerning their Brady obligations. Such liability attaches, I agree with the Court, only when the failure “amount[s] to ‘deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.’ ” Ante, at 9 (quoting Canton v. Harris, 489 U. S. 378, 388 (1989)). I disagree, however, with the Court’s conclusion that Thompson failed to prove deliberate indifference.
Having weighed all the evidence, the jury in the §1983 case found for Thompson, concluding that the District Attorney’s Office had been deliberately indifferent to Thompson’s Brady rights and to the need for training and supervision to safeguard those rights. “Viewing the evidence in the light most favorable to [Thompson], as appropriate in light of the verdic[t] rendered by the jury,” Patrick v. Burget, 486 U. S. 94, 98, n. 3 (1988), I see no cause to upset the District Court’s determination, affirmed by the Fifth Circuit, that “ample evidence … adduced at trial” supported the jury’s verdict. Record 1917.
Over 20 years ago, we observed that a municipality’s failure to provide training may be so egregious that, even without notice of prior constitutional violations, the failure “could properly be characterized as ‘deliberate indifference’ to constitutional rights.” Canton, 489 U. S., at 390, n. 10. “[I]n light of the duties assigned to specific officers or employees,” Canton recognized, “it may happen that … the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers … can reasonably be said to have been deliberately indifferent to the need.” Id., at 390. Thompson presented convincing evidence to satisfy this standard.
Thompson’s §1983 suit proceeded to a jury trial on two theories of liability: First, the Orleans Parish Office’s official Brady policy was unconstitutional; and second, Connick was deliberately indifferent to an obvious need to train his prosecutors about their Brady obligations. Connick’s Brady policy directed prosecutors to “turn over what was required by state and federal law, but no more.” Brief for Petitioners 6–7. The jury thus understandably rejected Thompson’s claim that the official policy itself was unconstitutional. Ante, at 5.
The jury found, however, that Connick was deliberately indifferent to the need to train prosecutors about Brady’s command. On the special verdict form, the jury answered yes to the following question:
“Was the Brady violation in the armed robbery case or any infringements of John Thompson’s rights in the murder trial substantially caused by [Connick’s] failure, through deliberate indifference, to establish policies and procedures to protect one accused of a crime from these constitutional violations?” Record 1585.
Consistent with the question put to the jury, and without objection, the court instructed the jurors: “[Y]ou are not limited to the nonproduced blood evidence and the resulting infringement of Mr. Thompson’s right to testify at the murder trial. You may consider all of the evidence presented during this trial.” Tr. 1099; Record 1620.[Footnote 11] But cf. ante, at 2, 6, 10, n. 7, 16; ante, at 1 (Scalia, J., concurring) (maintaining that the case involves a single Brady violation). That evidence included a stipulation that in his retrial for the Liuzza murder, Thompson had introduced ten exhibits containing relevant information withheld by the prosecution in 1985. See supra, at 13.
Abundant evidence supported the jury’s finding that additional Brady training was obviously necessary to ensure that Brady violations would not occur: (1) 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. (4) The Office shirked its responsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements. As a result of these multiple shortfalls, it was hardly surprising that Brady violations in fact occurred, severely undermining the integrity of Thompson’s trials.
Connick was the Office’s sole policymaker, and his testimony exposed a flawed understanding of a prosecutor’s Brady obligations. First, Connick admitted to the jury that his earlier understanding of Brady, conveyed in prior sworn testimony, had been too narrow. Tr. 181–182. Second, Connick confessed to having withheld a crime lab report “one time as a prosecutor and I got indicted by the U. S. Attorney over here for doing it.” Id., at 872. Third, even at trial Connick persisted in misstating Brady’s requirements. For example, Connick urged that there could be no Brady violation arising out of “the inadvertent conduct of [an] assistant under pressure with a lot of case load.” Tr. 188–189. The court, however, correctly instructed the jury that, in determining whether there has been a Brady violation, the “good or bad faith of the prosecution does not matter.” Tr. 1094–1095.
The testimony of other leaders in the District Attorney’s Office revealed similar misunderstandings. Those misunderstandings, the jury could find, were in large part responsible for the gross disregard of Brady rights Thompson experienced. Dubelier admitted that he never reviewed police files, but simply relied on the police to flag any potential Brady information. Tr. 542. The court, however, instructed the jury that an individual prosecutor has a “duty … to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.” Id., at 1095; Record 1614. Williams was asked whether “Brady material includes documents in the possession of the district attorney that could be used to impeach a witness, to show that he’s lying”; he responded simply, and mistakenly, “No.” Tr. 381. The testimony of “high-ranking individuals in the Orleans Parish District Attorney’s Office,” Thompson’s expert explained,[Footnote 12] exposed “complete errors … as to what Brady required [prosecutors] to do.” Id., at 427, 434. “Dubelier had no understanding of his obligations under Brady whatsoever,” id., at 458, the expert observed, and Williams “is still not sure what his obligations were under Brady,” id., at 448. But cf. ante, at 4–5 (“[I]t was undisputed at trial that the prosecutors were familiar with the general Brady requirement that the State disclose to the defense evidence in its possession that is favorable to the accused.”).
The jury could attribute the violations of Thompson’s rights directly to prosecutors’ misapprehension of Brady. The prosecution had no obligation to produce the “close-cut hair” police reports, Williams maintained, because newspaper reports had suggested that witness descrip- tions were not consistent with Thompson’s appearance. Therefore, Williams urged, the defense already “had everything.” Tr. 139. Dubelier tendered an alternative ex- planation for the nondisclosure. In Dubelier’s view, the descriptions were not “inconsistent with [Thompson’s] appearance,” as portrayed in a police photograph showing Thompson’s hair extending at least three inches above his forehead. Id., at 171–172; Record EX73. Williams insisted that he had discharged the prosecution’s duty to disclose the blood evidence by mentioning, in a motion hearing, that the prosecution intended to obtain a blood sample from Thompson. Tr. 393–394. During the armed robbery trial, Williams told one of the victims that the results of the blood test made on the swatch had been “inconclusive.” Id., at 962. And he testified in the §1983 action that the lab report was not Brady material “because I didn’t know what the blood type of Mr. Thompson was.” Tr. 393. But see supra, at 6–7, n. 5 (District Court instructed the jury that the lab report was Brady material).
Connick should have comprehended that Orleans Parish prosecutors lacked essential guidance on Brady and its application. In fact, Connick has effectively conceded that Brady training in his Office was inadequate. Tr. of Oral Arg. 60. Connick explained to the jury that prosecutors’ offices must “make … very clear to [new prosecutors] what their responsibility [i]s” under Brady and must not “giv[e] them a lot of leeway.” Tr. 834–835. But the jury heard ample evidence that Connick’s Office gave prosecutors no Brady guidance, and had installed no procedures to monitor Brady compliance.
In 1985, Connick acknowledged, many of his prosecutors “were coming fresh out of law school,” and the Office’s “[h]uge turnover” allowed attorneys with little experience to advance quickly to supervisory positions. See Tr. 853–854, 832. By 1985, Dubelier and Williams were two of the highest ranking attorneys in the Office, id., at 342, 356–357, yet neither man had even five years of experience as a prosecutor, see supra, at 5, n. 3; Record EX746; Tr. 55, 571–576.
Dubelier and Williams learned the prosecutorial craft in Connick’s Office, and, as earlier observed, see supra, at 17–18, their testimony manifested a woefully deficient understanding of Brady. Dubelier and Williams told the jury that they did not recall any Brady training in the Office. Tr. 170–171, 364.
Connick testified that he relied on supervisors, including Dubelier and Williams, to ensure prosecutors were familiar with their Brady obligations. Tr. 805–806. Yet Connick did not inquire whether the supervisors themselves understood the importance of teaching newer prosecutors about Brady. Riehlmann could not “recall that [he] was ever trained or instructed by anybody about [his] Brady obligations,” on the job or otherwise. Tr. 728–729. Whittaker agreed it was possible for “inexperienced lawyers, just a few weeks out of law school with no training,” to bear responsibility for “decisions on … whether material was Brady material and had to be produced.” Id., at 319.
Thompson’s expert characterized Connick’s supervision regarding Brady as “the blind leading the blind.” Tr. 458. For example, in 1985 trial attorneys “sometimes … went to Mr. Connick” with Brady questions, “and he would tell them” how to proceed. Tr. 892. But Connick acknowledged that he had “stopped reading law books … and looking at opinions” when he was first elected District Attorney in 1974. Id., at 175–176.
As part of their training, prosecutors purportedly attended a pretrial conference with the Office’s chief of trials before taking a case to trial. Connick intended the practice to provide both training and accountability. But it achieved neither aim in Thompson’s prosecutions, for Dubelier and Williams, as senior prosecutors in the Office, were free to take cases to trial without pretrying them, and that is just how they proceeded in Thompson’s prosecutions. Id., at 901–902; Record 685. But cf. ante, at 13 (“[T]rial chiefs oversaw the preparation of the cases.”).
Prosecutors confirmed that training in the District Attorney’s Office, overall, was deficient. Soon after Connick retired, a survey of assistant district attorneys in the Office revealed that more than half felt that they had not received the training they needed to do their jobs. Tr. 178.
Thompson, it bears emphasis, is not complaining about the absence of formal training sessions. Tr. of Oral Arg. 55. But cf. ante, at 15–16. His complaint does not demand that Brady compliance be enforced in any particular way. He asks only that Brady obligations be communicated accurately and genuinely enforced.[Footnote 13] Because that did not happen in the District Attorney’s Office, it was inevitable that prosecutors would misapprehend Brady. Had Brady’s importance been brought home to prosecutors, surely at least one of the four officers who knew of the swatch and lab report would have revealed their existence to defense counsel and the court.[Footnote 14]
Louisiana did not require continuing legal education at the time of Thompson’s trials. Tr. 361. But cf. ante, at 12–13. Primary responsibility for keeping prosecutors au courant with developments in the law, therefore, resided in the District Attorney’s Office. Over the course of Connick’s tenure as District Attorney, the jury learned, the Office’s chief of appeals circulated memoranda when appellate courts issued important opinions. Tr. 751–754, 798.
The 1987 Office policy manual was a compilation of memoranda on criminal law and practice circulated to prosecutors from 1974, when Connick became District Attorney, through 1987. Id., at 798. The manual contained four sentences, nothing more, on Brady.[Footnote 15] This slim instruction, the jury learned, was notably inaccurate, incomplete, and dated. Tr. 798–804, 911–918. But cf. ante, at 13 (“Senior attorneys also circulated court decisions and instructional memoranda to keep the prose-cutors abreast of relevant legal developments.”). For example, the manual did not acknowledge what Giglio v. United States, 405 U. S. 150 (1972), made plain: Impeachment evidence is Brady material prosecutors are obligated to disclose.[Footnote 16]
In sum, the evidence permitted the jury to reach the following conclusions. First, Connick did not ensure that prosecutors in his Office knew their Brady obligations; he neither confirmed their familiarity with Brady when he hired them, nor saw to it that training took place on his watch. Second, the need for Brady training and monitoring was obvious to Connick. Indeed he so testified. Third, Connick’s cavalier approach to his staff’s knowledge and observation of Brady requirements contributed to a culture of inattention to Brady in Orleans Parish.
As earlier noted, see supra, at 11, Connick resisted an effort to hold prosecutors accountable for Brady compliance because he felt the effort would “make [his] job more difficult.” Tr. 978. He never disciplined or fired a single prosecutor for violating Brady. Tr. 182–183. The jury was told of this Court’s decision in Kyles v. Whitley, 514 U. S. 419 (1995), a capital case prosecuted by Connick’s Office that garnered attention because it featured “so many instances of the state’s failure to disclose exculpatory evidence.” Id., at 455 (Stevens, J., concurring). When questioned about Kyles, Connick told the jury he was satisfied with his Office’s practices and saw no need, occasioned by Kyles, to make any changes. Tr. 184–185. In both quantity and quality, then, the evidence canvassed here was more than sufficient to warrant a jury determination that Connick and the prosecutors who served under him were not merely negligent regarding Brady. Rather, they were deliberately indifferent to what the law requires.
In Canton, this Court spoke of circumstances in which the need for training may be “so obvious,” and the lack of training “so likely” to result in constitutional violations, that policymakers who do not provide for the requisite training “can reasonably be said to have been deliberately indifferent to the need” for such training. 489 U. S., at 390. This case, I am convinced, belongs in the category Canton marked out.
Canton offered an often-cited illustration. “[C]ity policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons.” Ibid., n. 10. Those policymakers, Canton observed, equip police officers with firearms to facilitate such arrests. Ibid. The need to instruct armed officers about “constitutional limitations on the use of deadly force,” Canton said, is “ ‘so obvious,’ that failure to [train the officers] could properly be characterized as ‘deliberate indifference’ to constitutional rights.” Ibid.
The District Court, tracking Canton’s language, instructed the jury that Thompson could prevail on his “deliberate indifference” claim only if the evidence persuaded the jury on three points. First, Connick “was certain that prosecutors would confront the situation where they would have to decide which evidence was required by the Constitution to be provided to the accused.” Tr. 1099. Second, “the situation involved a difficult choice[,] or one that prosecutors had a history of mishandling, such that additional training, supervision or monitoring was clearly needed.” Ibid. Third, “the wrong choice by a prosecutor in that situation would frequently cause a deprivation of an accused’s constitutional rights.” Ibid.; Record 1619–1620; see Canton, 489 U. S., at 390, and n. 10; Walker v. New York, 974 F. 2d 293, 297–298 (CA2 1992).[Footnote 17]
Petitioners used this formulation of the failure to train standard in pretrial and post-trial submissions, Record 1256–1257, 1662, and in their own proposed jury instruction on deliberate indifference.[Footnote 18] Nor do petitioners dispute that Connick “kn[e]w to a moral certainty that” his prosecutors would regularly face Brady decisions. See Canton, 489 U. S., at 390, n. 10.
The jury, furthermore, could reasonably find that Brady rights may involve choices so difficult that Connick obviously knew or should have known prosecutors needed more than perfunctory training to make the correct choices. See Canton, 489 U. S., at 390, and n. 10.[Footnote 19] As demonstrated earlier, see supra, at 16–18, even at trial prosecutors failed to give an accurate account of their Brady obligations. And, again as emphasized earlier, see supra, at 18–20, the evidence permitted the jury to conclude that Connick should have known Brady training in his office bordered on “zero.” See Tr. of Oral Arg. 41. Moreover, Connick understood that newer prosecutors needed “very clear” guidance and should not be left to grapple with Brady on their own. Tr. 834–835. It was thus “obvious” to him, the jury could find, that constitutional rights would be in jeopardy if prosecutors received slim to no Brady training.
Based on the evidence presented, the jury could conclude that Brady errors by untrained prosecutors would frequently cause deprivations of defendants’ constitutional rights. The jury learned of several Brady oversights in Thompson’s trials and heard testimony that Connick’s Office had one of the worst Brady records in the country. Tr. 163. Because prosecutors faced considerable pressure to get convictions, id., at 317, 341, and were instructed to “turn over what was required by state and federal law, but no more,” Brief for Petitioners 6–7, the risk was all too real that they would err by withholding rather than revealing information favorable to the defense.
In sum, despite Justice Scalia’s protestations to the contrary, ante, at 1, 5, the Brady violations in Thompson’s prosecutions were not singular and they were not aberrational. They were just what one would expect given the attitude toward Brady pervasive in the District Attorney’s Office. Thompson demonstrated that no fewer than five prosecutors—the four trial prosecutors and Riehlmann—disregarded his Brady rights. He established that they kept from him, year upon year, evidence vital to his defense. Their conduct, he showed with equal force, was a foreseeable consequence of lax training in, and absence of monitoring of, a legal requirement fundamental to a fair trial.[Footnote 20]
Unquestionably, a municipality that leaves police officers untrained in constitutional limits on the use of deadly weapons places lives in jeopardy. Canton, 489 U. S., at 390, n. 10. But as this case so vividly shows, a municipality that empowers prosecutors to press for a death sentence without ensuring that those prosecutors know and honor Brady rights may be no less “deliberately indifferent” to the risk to innocent lives.
Brady, this Court has long recognized, is among the most basic safeguards brigading a criminal defendant’s fair trial right. See Cone v. Bell, 556 U. S. ___, ___ (2009) (slip op., at 1). See also United States v. Bagley, 473 U. S. 667, 695 (1985) (Marshall, J., dissenting). Vigilance in superintending prosecutors’ attention to Brady’s requirement is all the more important for this reason: A Brady violation, by its nature, causes suppression of evidence beyond the defendant’s capacity to ferret out. Because the absence of the withheld evidence may result in the conviction of an innocent defendant, it is unconscionable not to impose reasonable controls impelling prosecutors to bring the information to light.
The Court nevertheless holds Canton’s example inapposite. It maintains that professional obligations, ethics rules, and training—including on-the-job training—set attorneys apart from other municipal employees, including rookie police officers. Ante, at 12–15. Connick “had every incentive at trial to attempt to establish” that he could reasonably rely on the professional education and status of his staff. Cf. ante, at 10, n. 6. But the jury heard and rejected his argument to that effect. Tr. 364, 576–577, 834–835.
The Court advances Connick’s argument with greater clarity, but with no greater support. On what basis can one be confident that law schools acquaint students with prosecutors’ unique obligation under Brady? Whittaker told the jury he did not recall covering Brady in his criminal procedure class in law school. Tr. 335. Dubelier’s alma mater, like most other law faculties, does not make criminal procedure a required course.[Footnote 21]
Connick suggested that the bar examination ensures that new attorneys will know what Brady demands. Tr. 835. Research indicates, however, that from 1980 to the present, Brady questions have not accounted for even 10% of the total points in the criminal law and procedure section of any administration of the Louisiana Bar Examination.[Footnote 22] A person sitting for the Louisiana Bar Examination, moreover, need pass only five of the exam’s nine sections.[Footnote 23] One can qualify for admission to the profession with no showing of even passing knowledge of criminal law and procedure.
The majority’s suggestion that lawyers do not need Brady training because they “are equipped with the tools to find, interpret, and apply legal principles,” ante, at 17–18, “blinks reality” and is belied by the facts of this case. See Brief for Former Federal Civil Rights Officials and Prosecutors as Amici Curiae 13. Connick himself recognized that his prosecutors, because of their inexperience, were not so equipped. Indeed, “understanding and complying with Brady obligations are not easy tasks, and the appropriate way to resolve Brady issues is not always self-evident.” Brief for Former Federal Civil Rights Officials and Prosecutors as Amici Curiae 6. “Brady compliance,” therefore, “is too much at risk, and too fundamental to the fairness of our criminal justice system, to be taken for granted,” and “training remains critical.” Id., at 3, 7.
The majority further suggests that a prior pattern of similar violations is necessary to show deliberate indifference to defendants’ Brady rights. See ante, at 5–6, and n. 4, 11–12.[Footnote 24] The text of §1983 contains no such limitation.[Footnote 25] Nor is there any reason to imply such a limitation.[Footnote 26] A district attorney’s deliberate indifference might be shown in several ways short of a prior pattern.[Footnote 27] This case is one such instance. Connick, who himself had been indicted for suppression of evidence, created a tinderbox in Orleans Parish in which Brady violations were nigh inevitable. And when they did occur, Connick insisted there was no need to change anything, and opposed efforts to hold prosecutors accountable on the ground that doing so would make his job more difficult.
A District Attorney aware of his office’s high turnover rate, who recruits prosecutors fresh out of law school and promotes them rapidly through the ranks, bears responsibility for ensuring that on-the-job training takes place. In short, the buck stops with him.[Footnote 28] As the Court recognizes, “the duty to produce Brady evidence to the defense” is “[a]mong prosecutors’ unique ethical obligations.” Ante, at 13. The evidence in this case presents overwhelming support for the conclusion that the Orleans Parish Office slighted its responsibility to the profession and to the State’s system of justice by providing no on-the-job Brady training. Connick was not “entitled to rely on prosecutors’ professional training,” ante, at 14, for Connick himself should have been the principal insurer of that training.
* * *
For the reasons stated, I would affirm the judgment of the U. S. Court of Appeals for the Fifth Circuit. Like that court and, before it, the District Court, I would uphold the jury’s verdict awarding damages to Thompson for the gross, deliberately indifferent, and long-continuing violation of his fair trial right.Footnote 1
Exhibits entered into evidence in Thompson’s §1983 trial are herein cited by reference to the page number in the exhibit binder compiled by the District Court and included in the record on appeal.Footnote 2
The majority endorses the Fifth Circuit’s conclusion that, when Thompson was tried for murder, no Brady violation occurred with respect to these audio tapes “[b]ecause defense counsel had knowledge of such evidence and could easily have requested access from the prosecution.” Thompson v. Cain, 161 F. 3d 802, 806–807 (1998); ante, at 17, n. 11. The basis for that asserted “knowledge” is a mystery. The recordings secretly made did not come to light until long after Thompson’s trials.Footnote 3
At the time of their assignment, Dubelier had served in the District Attorney’s Office for three and a half years, Williams, for four and a half years, Deegan, a recent law school graduate, for less than one year, and Whittaker, for three years.Footnote 4
Connick did not dispute that failure to disclose the swatch and the crime lab report violated Brady. See Tr. 46, 1095. But cf. ante, at 4, 6 (limiting Connick’s concession, as Connick himself did not, to failure to disclose the crime lab report).
In Justice Scalia’s contrary view, “[t]here was probably no Brady violation at all,” or, if there was any violation of Thompson’s rights, it “was surely on the very frontier of our Brady jurisprudence,” such that “Connick could not possibly have been on notice” of the need to train. Ante, at 7. Connick’s counsel, however, saw the matter differently. “[A]ny reasonable prosecutor would have recognized blood evidence as Brady material,” he said, indeed “the proper response” was “obvious to all.” Record 1663, 1665.Footnote 5
The majority assails as “highly suspect” the suggestion that prosecutors violated Brady by failing to disclose the blood-stained swatch. See ante, at 17, n. 11. But the parties stipulated in Thompson’s §1983 action, and the jury was so informed, that, “[p]rior to the armed robbery trial, Mr. Thompson and his attorneys were not advised of the existence of the blood evidence, that the evidence had been tested, [or] that a blood type was determined definitively from the swatch … .” Tr. 46. Consistent with this stipulation, Thompson’s trial counsel testified that he spoke to “[t]he clerk who maintain[ed] the evidence” and learned that “[t]hey didn’t have any blood evidence.” Id., at 401. And the District Court instructed the jury, with no objection from Connick, “that the nonproduced blood evidence … violated [Thompson’s] constitutional rights as a matter of law.” Id., at 1095.Footnote 6
Justice Scalia questions petitioners’ concession that Brady was violated when the prosecution failed to inform Thompson of the blood evidence. He considers the evidence outside Brady because the prosecution did not endeavor to test Thompson’s blood, and therefore avoided knowing that the evidence was in fact exculpatory. Ante, at 6–7. Such a “don’t ask, don’t tell” view of a prosecutor’s Brady obligations garners no support from precedent. See also supra, at 6, n. 4; infra, at 21, n. 13.Footnote 7
During jury deliberations in the armed robbery case, Williams, the only Orleans Parish trial attorney common to the two prosecutions, told Thompson of his objective in no uncertain terms: “I’m going to fry you. You will die in the electric chair.” Tr. 252–253.Footnote 8
The Louisiana Court of Appeal concluded, and Connick does not dispute, that Thompson “would have testified in the absence of the attempted armed robbery conviction.” State v. Thompson, 2002–0361, p. 7 (7/17/02), 825 So. 2d 552, 556. But cf. ante, at 1, 3 (Thompson “elected” not to testify).Footnote 9
Thompson argued that “the State failed to produce police reports ‘and other information’ which would have identified ‘eye- and ear-witnesses’ whose testimony would have exonerated him and inculpated [Freeman], … and would have shown that [Perkins,] … who stated [he] heard [Thompson] admit to committing the murder[,] had been promised reward money for [his] testimony.” Thompson, 825 So. 2d, at 555. In leaving these arguments unaddressed, the Louisiana Court of Appeal surely did not defer to the Fifth Circuit’s earlier assessment of those claims, made on an anemic record, in Thompson v. Cain, 161 F. 3d 802. Nor did the Louisiana Court of Appeal suggest that Thompson was “belatedly tr[ying] to reverse” the Fifth Circuit’s decision. But cf. ante, at 17, n. 11.Footnote 10
The Court notes that in Thompson v. Cain, the Fifth Circuit rejected Brady claims raised by Thompson, characterizing one of those claims as “without merit.” Ante, at 17, n. 11 (quoting Thompson, 161 F. 3d, at 807); see supra, at 4, n. 2. The Court, however, overlooks the date of that Fifth Circuit decision. It was rendered before revelation of the Brady violations in the armed robbery trial, before Thompson had the opportunity for discovery in his §1983 suit, and before Thompson or any court was aware of the “close cut hair” police reports. See Thompson, 161 F. 3d, at 812, n. 8. It is these later revelations, not the little Thompson knew in 1998, that should count. For example, the Fifth Circuit, in 1998, believed that Perkins’ statement recorded in the police report did not “differ from Freeman’s trial testimony.” Id., at 808. But evidence put before the jury in 2007 in the §1983 trial showed that the police report, in several material respects, was inconsistent with Freeman’s trial testimony. Tr. 382–383.
Connick has never suggested to this Court that the jury in the §1983 trial was bound by the Fifth Circuit’s 1998 Brady rulings. That court “afford[ed] great deference to” the state trial court’s findings, made after a 1995 post-conviction relief hearing. Thompson, 161 F. 3d, at 805. The jury in the §1983 trial, of course, had far more extensive and accurate information on which to reach its decision. Moreover, as earlier noted, the same trial court that made the 1995 findings was, in 1999, outraged by the subsequently discovered Brady violations and by Connick’s reluctance to bring those violations to light. See supra, at 10–11. Certainly that judge would not have wanted the jury that assessed Connick’s deliberate indifference in the §1983 trial to defer to findings he earlier made on a notably incomplete record.Footnote 11
The court permitted Thompson to introduce evidence of other Brady violations, but because “the blood evidence alone proved the violation [of Thompson’s constitutional rights],” the court declined specifically “to ask the jury [whether] this other stuff [was] also Brady.” Tr. 1003. The court allowed Thompson to submit proof of other violations to “sho[w] the cumulative nature … and impact [of] evidence … as to … the training and deliberate indifference … .” Ibid. But cf. ante, at 17, n. 11 (questioning how “these violations are relevant” to this case). Far from indulging in my own factfindings, but cf. ante, at 16–17, n. 11, I simply recite the evidence supporting the jury’s verdict in Thompson’s §1983 trial.
The Court misleadingly states that “the District Court instructed the jury that the ‘only issue’ was whether the nondisclosure [of the crime lab report] was caused by either a policy, practice, or custom of the dis-trict attorney’s office or a deliberately indifferent failure to train the office’s prosecutors.” Ante, at 4. The jury instruction the majority cites simply directed the jury that, with regard to the blood evidence, as a matter of law, Thompson’s constitutional rights had been violated. Record 1614–1615. The court did not preclude the jury from assessing evidence of other infringements of Thompson’s rights. Id., at 1585; see Kyles v. Whitley, 514 U. S. 419, 421 (1995) (“[T]he state’s obligation under Brady … turns on the cumulative effect of all … evidence suppressed by the government … .”).Footnote 12
With no objection from petitioners, the court found Thompson’s expert, Joseph Lawless, qualified to testify as an expert in criminal law and procedure. Tr. 419, 426. Lawless has practiced criminal law for 30 years; from 1976 to 1979, he was an assistant district attorney, and thereafter he entered private practice. Id., at 412. He is the author of Prosecutorial Misconduct: Law, Procedure, Forms (4th ed. 2008), first published in 1985. Tr. 414. The text is used in a class on ethics and tactics for the criminal lawyer at Harvard Law School and in the federal defender training program of the Administrative Office of the United States Courts. Id., at 416.Footnote 13
To ward off Brady violations of the kind Connick conceded, for example, Connick could have communicated to Orleans Parish prosecutors, in no uncertain terms, that, “[i]f you have physical evidence that, if tested, can establish the innocence of the person who is charged, you have to turn it over.” Tr. of Oral Arg. 34; id., at 36 (“[I]f you have evidence that can conclusively establish to a scientific certainty the innocence of the person being charged, you have to turn it over … .”). Or Connick could have told prosecutors what he told the jury when he was asked whether a prosecutor must disclose a crime lab report to the defense, even if the prosecutor does not know the defendant’s blood type: “Under the law it qualifies as Brady material. Under Louisiana law we must turn that over. Under Brady we must turn that over. I [failed to disclose a crime lab report] one time as a prosecutor and I got indicted by the U. S. Attorney over here for doing it.” Tr. 872. But cf. ante, at 7 (Scalia, J., concurring) (questioning how Connick could have been on notice of the need to train prosecutors about the Brady violations conceded in this case).Footnote 14
The Court can scarcely disagree with respect to Dubelier, Williams, and Whittaker, for it acknowledges the “flagran[cy]” of Deegan’s conduct, see ante, at 7, n. 5, and does not dispute that, pretrial, other prosecutors knew of the existence of the swatch and lab report.Footnote 15
Section 5.25 of the manual, titled “Brady Material,” states in full:
“In most cases, in response to the request of defense attorneys, the Judge orders the State to produce so called Brady material—that is, information in the possession of the State which is exculpatory regarding the defendant. The duty to produce Brady material is ongoing and continues throughout the entirety of the trial. Failure to produce Brady material has resulted in mistrials and reversals, as well as extended court battles over jeopardy issues. In all cases, a review of Brady issues, including apparently self-serving statements made by the defendant, must be included in a pre-trial conference and each Assistant must be familiar with the law regarding exculpatory information possessed by the State.” Record EX427.Footnote 16
During the relevant time period, there were many significant developments in this Court’s Brady jurisprudence. Among the Brady-related decisions this Court handed down were United States v. Bagley, 473 U. S. 667, 676 (1985) (“This Court has rejected any … distinction between impeachment evidence and exculpatory evidence [in the Brady context].”); Weatherford v. Bursey, 429 U. S. 545, 559–560 (1977) (“Brady is not implicated … where the only claim is that the State should have revealed that it would present the eyewitness testimony of a particular agent against the defendant at trial.”); and United States v. Agurs, 427 U. S. 97, 103, 104, 106–107 (1976) (Brady claim may arise when “the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury,” when defense counsel makes “a pretrial request for specific evidence” and the government fails to accede to that request, and when defense counsel makes no request and the government fails to disclose “obviously exculpatory” evidence). These decisions were not referenced in the manual that compiled circulated memoranda.
In the same period, the Louisiana Supreme Court issued dozens of opinions discussing Brady, including State v. Sylvester, 388 So. 2d 1155, 1161 (1980) (impeachment evidence must be disclosed in response to a specific request if it would create a “reasonable doubt that did not otherwise exist”); State v. Brooks, 386 So. 2d 1348, 1351 (1980) (Brady extends to any material information favorable to the accused); and State v. Carney, 334 So. 2d 415, 418–419 (1976) (reversible error if prosecution fails, even inadvertently, to disclose bargain with a witness).Footnote 17
Justice Scalia contends that this “theory of deliberate indifference would repeal the law of Monell,” and creates a danger that “ ‘failure to train’ would become a talismanic incantation producing municipal liability [i]n virtually every instance where a person has had his or her constitutional rights violated by a city employee.” Ante, at 2–3 (some internal quotation marks omitted). The District Court’s charge, however, cautiously cabined the jury’s assessment of Connick’s deliberate indifference. See, e.g., Tr. 1100 (“Mr. Thompson must prove that more likely than not the Brady material would have been produced if the prosecutors involved in his underlying criminal cases had been properly trained, supervised or monitored regarding the production of Brady evidence.”). See also id., at 1096–1097, 1099–1100.
The deliberate indifference jury instruction in this case was based on the Second Circuit’s opinion in Walker v. New York, 974 F. 2d 293, 297–298 (1992), applying Canton to a §1983 complaint alleging that a district attorney failed to train prosecutors about Brady. Justice Scalia’s fears should be calmed by post-Walker experience in the Second Circuit. There has been no “litigation flood or even rainfall,” Skinner v. Switzer, 562 U. S. ___ (2011) (slip op., at 12), in that Circuit in Walker’s wake. See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 39 (“Tellingly, in the Second Circuit, in the nearly 20 years since the court decided Walker, there have been no successful lawsuits for non-Brady constitutional violations committed by prosecutors at trial (and no reported ‘single violation’ Brady case).” (citation omitted)); Brief for Center on the Administration of Criminal Law, New York University School of Law, et al. as Amici Curiae 35–36 (Walker has prompted “no flood of §1983 liability”).Footnote 18
The instruction Connick proposed resembled the charge given by the District Court. See supra, at 24. Connick’s proposed instruction read: “Before a district attorney’s failure to train or supervise constitutes deliberate indifference to the constitutional rights of citizens: (1) the plaintiff must show that Harry Connick knew ‘to a moral certainty’ that his employees will confront a given situation; (2) the plaintiff must show that the situation either presents the employee with a difficult choice … such that training or supervision will make the choice less difficult or that there is a history of employees mishandling the situation; and (3) the plaintiff must show that the wrong choice by the assistant district attorney will frequently cause the deprivation of a citizen’s constitutional rights.” Record 992 (citing Canton, 489 U. S., at 390; punctuation altered). But cf. ante, at 3 (Scalia, J., concurring) (criticizing “Thompson’s theory” of deliberate indifference).
Petitioners, it is true, argued all along that “[t]o prove deliberate indifference, Thompson had to demonstrate a pattern of violations,” Brief for Appellants in No. 07–30443 (CA5), p. 41; see ante, at 3–4 (Scalia, J., concurring), but the court rejected their categorical position. Petitioners did not otherwise assail the District Court’s formulation of the deliberate indifference instruction. E.g., Record 1662.Footnote 19
Courts have noted the often trying nature of a prosecutor’s Brady obligation. See, e.g., State v. Whitlock, 454 So. 2d 871, 874 (La. App. 1984) (recognizing, in a case involving Brady issues in Connick’s Office, that “it is usually most difficult to determine whether or not inconsistencies or omitted information in witnesses’ statements are material to the defendant’s guilt” (quoting State v. Davenport, 399 So. 2d 201, 204 (La. 1981))).Footnote 20
The jury could draw a direct, causal connection between Connick’s deliberate indifference, prosecutors’ misapprehension of Brady, and the Brady violations in Thompson’s case. See, e.g., supra, at 17 (prosecutors’ misunderstandings of Brady “were in large part responsible for the gross disregard of Brady rights Thompson experienced”); supra, at 18 (“The jury could attribute the violations of Thompson’s rights directly to prosecutors’ misapprehension of Brady.”); supra, at 17–18 (Williams did not believe Brady required disclosure of impeachment evidence and did not believe he had any obligation to turn over the impeaching “close-cut hair” police reports); supra, at 18 (At the time of the armed robbery trial, Williams reported that the results of the blood test on the swatch were “inconclusive”); ibid. (“[Williams] testified … that the lab report was not Brady material … .”); supra, at 19–20 (Dubelier and Williams, the lead prosecutors in Thompson’s trials, “learned the prosecutorial craft in Connick’s Office,” “did not recall any Brady training,” demonstrated “a woefully deficient understanding of Brady,” and received no supervision during Thompson’s trials); supra, at 21 (“Had Brady’s importance been brought home to prosecutors, surely at least one of the four officers who knew of the swatch and lab report would have revealed their existence to defense counsel and the court.”); supra, at 23 (Connick did not want to hold prosecutors accountable for Brady compliance because he felt that doing so would make his job more difficult); supra, at 23 (Connick never disciplined a single prosecutor for violating Brady); supra, at 27 (“Because prosecutors faced considerable pressure to get convictions, and were instructed to turn over what was required by state and federal law, but no more, the risk was all too real that they would err by withholding rather than revealing information favorable to the defense.” (citations and internal quotation marks omitted)). But cf. ante, at 7, n. 5 (“The dissent believes that evidence that the prosecutors allegedly ‘misapprehen[ded]’ Brady proves causation.”).
I note, furthermore, that the jury received clear instructions on the causation element, and neither Connick nor the majority disputes the accuracy or adequacy of the instruction that, to prevail, Thompson must prove “that more likely than not the Brady material would have been produced if the prosecutors involved in his underlying criminal cases had been properly trained, supervised or monitored regarding the production of Brady evidence.” Tr. 1100.
The jury was properly instructed that “[f]or liability to attach because of a failure to train, the fault must be in the training program itself, not in any particular prosecutor.” Id., at 1098. Under that instruction, in finding Connick liable, the jury necessarily rejected the argument—echoed by Justice Scalia—that Deegan “was the only bad guy.” Id., at 1074. See also id., at 1057; ante, at 5. If indeed Thompson had shown simply and only that Deegan deliberately withheld evidence, I would agree that there would be no basis for liability. But, as reams of evidence showed, disregard of Brady occurred, over and over again in Orleans Parish, before, during, and after Thompson’s 1985 robbery and murder trials.Footnote 21
See Tulane University Law School, Curriculum, http://www.law .tulane.edu (select “Academics”; select “Curriculum”) (as visited Mar. 21, 2011, and in Clerk of Court’s case file).Footnote 22
See Supreme Court of Louisiana, Committee on Bar Admissions, Compilation of Louisiana State Bar Examinations, Feb. 1980 through July 2010 (available in Clerk of Court’s case file).Footnote 23
See La. State Bar Assn., Articles of Incorporation, Art. 14, §10(A), La. Rev. Stat. Ann. §37, ch. 4, App. (West 1974); ibid. (West 1988).Footnote 24
Board of Comm’rs of Bryan Cty. v. Brown, 520 U. S. 397 (1997), reaffirmed “that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability.” Id., at 409. Conducting this inquiry, the Court has acknowledged, “may not be an easy task for the factfinder.” Canton v. Harris, 489 U. S. 378, 391 (1989). Bryan County did not retreat from this Court’s conclusion in Canton that “judge and jury, doing their respective jobs, will be adequate to the task.” 489 U. S., at 391. See also Bryan County, 520 U. S., at 410 (absent a pattern, municipal liability may be predicated on “a particular glaring omission in a training regimen”). But cf. ante, at 16–18 (suggesting that under no set of facts could a plaintiff establish deliberate indifference for failure to train prosecutors in their Brady obligation without showing a prior pattern of violations).Footnote 25
When Congress sought to render a claim for relief contingent on showing a pattern or practice, it did so expressly. See, e.g., 42 U. S. C. §14141(a) (“It shall be unlawful for any governmental authority … to engage in a pattern or practice of conduct by law enforcement officers … that deprives persons of rights … protected by the Constitution … .”); 15 U. S. C. §6104(a) (“Any person adversely affected by any pattern or practice of telemarketing … may … bring a civil action … .”); 49 U. S. C. §306(e) (authorizing the Attorney General to bring a civil action when he “has reason to believe that a person is engaged in a pattern or practice [of] violating this section”). See also 47 U. S. C. §532(e)(2)–(3) (authorizing the Federal Communications Commission to establish additional rules when “the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations”).Footnote 26
In the end, the majority leaves open the possibility that something other than “a pattern of violations” could also give a district attorney “specific reason” to know that additional training is necessary. See ante, at 14–15. Connick, by his own admission, had such a reason. See supra, at 18–20.Footnote 27
For example, a prosecutor’s office could be deliberately indifferent if it had a longstanding open-file policy, abandoned that policy, but failed to provide training to show prosecutors how to comply with their Brady obligations in the altered circumstances. Or a district attorney could be deliberately indifferent if he had a practice of paring well-trained prosecutors with untrained prosecutors, knew that such supervision had stopped untrained prosecutors from committing Brady violations, but nevertheless changed the staffing on cases so that untrained prosecutors worked without supervision.Footnote 28
If the majority reads this statement as an endorsement of respondeat superior liability, ante, at 18, n. 12, then it entirely “misses [my] point,” cf. ante, at 17. Canton recognized that deliberate indifference liability and respondeat superior liability are not one and the same. 489 U. S., at 385, 388–389. Connick was directly responsible for the Brady violations in Thompson’s prosecutions not because he hired prosecutors who violated Brady, but because of his own deliberate indifference.
ORAL ARGUMENT OF S. KYLE DUNCAN ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We will hear argument next in Case 09-571, Connick v. Thompson.
Mr. Duncan: Mr. Chief Justice, and may it please the Court:
This case asks when a district attorney's office may be liable under section 1983 for inadequately training prosecutors.
The Petitioner, Orleans Parish District Attorney's Office, was found liable for the terrible injuries caused to Mr. Thompson by a Brady violation on the theory the office was deliberately indifferent to Brady training, this despite the fact that there was proved no pattern of previous misconduct by office prosecutors.
The district court exempted this case from the ordinary pattern requirement by making a flawed analogy to a hypothetical in this Court's City of Canton opinion.
There, the Court suggested that a city may be liable, absent a pattern, if it fails to inform police officers of the basic constitutional standard for deadly force.
Extending that hypothetical to this case was error.
It misunderstood Canton's distinction between a single incident and pattern liability, nullifying Canton's stringent standards of fault and causation.
Justice Ruth Bader Ginsburg: Isn't there something in between?
Because in Canton, the hypothetical was one rookie police officer.
Here, it wasn't one rogue prosecutor.
There were four prosecutors who knew of this blood evidence and there were multiple opportunities for them to disclose it, but four of them apparently thought it was okay under Brady to keep this quiet.
Now, if we were just talking about -- what was his name, Deegan?
it would be a different case.
But we have the three other prosecutors.
So I think it's questionable to characterize this as a single incident.
Mr. Duncan: I understand your question, Justice Ginsburg.
Our argument does not turn on whether it was one or three or four prosecutors.
What our argument does turn on is that the theory from the Canton hypothetical, which does not require a pattern, was clearly at issue in this case.
The district court analogized to Canton in order to allow the jury to find liability absent a pattern.
There is no question that, whether it was one or four prosecutors, this is a single incident of a Brady violation.
Justice Sonia Sotomayor: Counsel, this is a single incident, and Canton said if you know that a tort is likely to happen without training then one incident is enough.
Every prosecutor knows that there can be Brady violations if people are not taught what Brady means, because it's not self-evident in every situation.
Mr. Duncan: That's true, Justice Sotomayor.
Justice Sonia Sotomayor: All right.
So if you know that rookie prosecutors -- and most prosecutors' offices are filled with young ADA's who have just come out of law school.
If you know that they are going to meet some situations where the answer is not intuitively known, like that if you get a lab report, you should turn it over, don't you have an obligation, isn't that what the jury said, to train them to turn over lab reports?
Now, I know you claim you had that policy.
Mr. Duncan: Correct.
Justice Sonia Sotomayor: We can talk later about whether or not there was sufficient evidence for the jury to disbelieve that you had that policy or not.
That's a sufficiency of the evidence question.
But if you know that lab reports have to be turned over, you've conceded it's a Brady violation not to do it, and there was sufficient -- and you had no policy -- I know you are disputing that -- and you had no policy of turning it over, why aren't you responsible for a Canton-like violation?
Mr. Duncan: The question is under the Brady scenario, which side of the Canton line does it fall on?
Does it fall on the single incident line or the pattern line?
We say it falls on the pattern line.
Justice Ruth Bader Ginsburg: But life doesn't always come in just two categories, and my suggestion to you is this doesn't fit into this single rookie.
You have -- if you have four prosecutors who are not turning over this evidence, then it seems like to me it's kind of a culture in the office that we don't turn over -- either we don't understand Brady, because one suggestion was -- well, having the blood sample will show you -- you would have to have the blood sample from Thompson to have it mean anything.
So there was misunderstanding about that.
But what struck me was that to shoehorn this into a single incident, it doesn't fit.
So we have a situation maybe that hasn't -- that we haven't directly confronted before.
Mr. Duncan: Well, I think the Court has in Canton, Your Honor.
Let me answer it this way: If we pay close attention to the function of the single incident hypothetical in Canton, I think it illuminates the kind of notice, the kind of fault, and the kind of causation that needs to arise out of a general situation.
So looking carefully, what Canton said is: A policymaker who fails to give police officers the basic constitutional standard for deadly force, which they are not equipped to know in the beginning, and without which--
Justice Ruth Bader Ginsburg: Can you tell me -- I think I have a copy.
Mr. Duncan: --I'm sorry, Your Honor.
This is -- this is -- I am referring to the -- the basic Canton standard is at 390, page 390 of the Canton opinion.
And specifically, the footnote is footnote 10, that discusses the two possibilities, the no-pattern and the pattern possibilities.
So I'm reading from Canton at footnote 10.
City policymakers know -- "For example", the Court said,
"city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. "
"The city has armed its officers with firearms, in part to allow them to accomplish this task. "
"Thus, the need to train officers in the constitutional limitations on the use of deadly force can be said to be so obvious that the failure to do so is deliberate indifference. "
Now, what we have there, as Justice O'Connor's concurrence in that case and then later the Court's opinion in Bryan County explains, you have a failure to inform city personnel of the basic standard without which they have no hope of doing their job in a constitutional manner.
So you put your employees in a situation of impossibility and when a deadly force violation occurs, what you have--
Justice Antonin Scalia: These are people who haven't gone to law school, right?
Mr. Duncan: --That's correct.
Justice Antonin Scalia: And do not know that you cannot apply deadly force in most circumstances?
Mr. Duncan: They've got no background equipment to know what the constitutional standard is.
And so that satisfies, in a general situation--
Justice Antonin Scalia: If you were giving guns to lawyers, it might have been different.
Mr. Duncan: --It could be, Your Honor.
Here, you're giving--
Justice Antonin Scalia: Depending on the law school they went to or what?
Mr. Duncan: --It could be.
However, what you are giving to lawyers here is the task of analyzing legal judgment.
Can lawyers' judgments go astray, Justice Sotomayor?
Justice Sonia Sotomayor: Now what you are suggesting is that for certainty you know that a lawyer's judgment is going to go astray because a particular area of law is that complicated.
Your people disagreed -- some of your people disagreed or didn't know whether turning over a lab report was a -- failure to turn over a lab report when you didn't know a defendant's blood type was a Brady violation.
That has been conceded in this case, so I accept as a working proposition that they should have known that.
What you are suggesting is you get a pass because, even though you know that there's an area of law that a young lawyer is not going to be able to figure out on their own, you fail to train them and you're okay.
Mr. Duncan: --Well--
Justice Sonia Sotomayor: That that is not the Canton example.
Mr. Duncan: --That is not the Canton example, Your Honor.
What we have here--
Justice Sonia Sotomayor: That's what you are saying.
Mr. Duncan: --No, that's not what we are saying.
We are not saying that the policymaker inevitably knows, my prosecutors are going to make this mistake, and so I need to train on it; I don't care about training on it.
Justice Samuel Alito: Can we just -- can we clear something up?
Mr. Duncan: Yes, sir.
Justice Samuel Alito: Are you accepting the proposition that Brady always requires that lab reports be turned over?
Mr. Duncan: No, Your Honor.
What we concede in this case is--
Justice Samuel Alito: I know you concede that there was a Brady violation here, but in answer to some of the questions it seems to me that you were possibly -- or at least you did not express an opinion on the suggestion that it is always a violation of Brady to fail to turn over a lab report.
Mr. Duncan: --I'm not aware that it would always be a violation of Brady.
However, of course, we have evidence in this case that the -- uncontradicted evidence, that the office policy was to turn over all scientific reports.
Justice Elena Kagan: Mr. Duncan, could I give you a hypothetical--
Mr. Duncan: --Sure.
Justice Elena Kagan: --just to test how strong your position is here.
So let's say that there is a new D.A. comes to town and he says, there's going to be one attorney per case from now on and it will be a random assignment system.
So sometimes important cases will be tried by experienced attorneys, but sometimes they'll be tried by people right out of law school.
And there will be no Brady supervision at all, no Brady training.
And there is a closed file system, that we only turn over what we are required to turn over and not anything else.
And in addition to that, if I, the D.A., find that you have turned over things that you are not required to turn over, that will be taken into account in your yearly review for promotion purposes, for salary purposes, et cetera.
That will be very severely frowned upon.
So the new D.A.--
Mr. Duncan: I'm sorry?
Repeat the last part again, the "severely frowned upon" part?
Justice Elena Kagan: --If you turn over anything that you didn't have to.
Mr. Duncan: I understand.
Justice Elena Kagan: If you give any material that you are not required to do by law.
And so he puts into place this whole system and says, okay, go to it.
And what happens is that there are Brady violations.
And there is a Brady violation in a capital case and the person sits on death row, or the person is executed, whichever, and there is a claim brought.
Is that claim not a good claim?
Mr. Duncan: If there is a pattern of demonstrated--
Justice Elena Kagan: There is not a pattern, because he just came to town and he just, you know, instituted all these policies, and this is the first Brady violation.
Mr. Duncan: --Not for the first Brady violation, Justice Kagan.
But in your hypothetical, you noted a policy of actually assigning inexperienced prosecutors randomly to perhaps high-profile cases.
If that were the facts the jury, as they could have in this case, could have found that an official policy actually caused the violation.
But they didn't find it in this case.
So the hypo leaves open that possibility.
Justice Elena Kagan: But the failure to train or supervise in any way and setting up a structural system that's pretty much guaranteed to produce Brady violations, that would not be enough?
In other words, even if the jury said yes, you are liable under that second theory -- not the policy theory, but the failure to train and supervise theory -- that would have to be rejected?
Mr. Duncan: No -- exactly, Your Honor.
No liability there, because it doesn't meet the stringent fault and causation standards of Canton.
This goes back to--
Justice Stephen G. Breyer: How is that so?
I've read the instruction that the court gave and it seems to me the instruction the Court gave was word-for-word taken from Canton.
And when I read the question that you presented in your Petitioner's brief -- in the petition for cert, I thought what this case was about was an instance where there was only -- it was conceded that there was only one such instance.
But then when I read that your second reiteration of the question, which is a little bit different, and read the briefs, I thought no, there are four other ones.
So what you are really asking us to do is to decide in the case of perfect instructions whether the evidence supports them.
I didn't think I was getting into that and, frankly, the brief clearly supports it.
Others could disagree.
But why are we getting into that business in this Court?
Mr. Duncan: --We are not asking you to.
Justice Stephen G. Breyer: All right.
Then what is it you are asking?
Is there something in the instruction that is wrong?
Mr. Duncan: Yes, the instructions reflect that the single incident theory--
Justice Stephen G. Breyer: Sorry.
Where -- I'm reading the instruction, I have it here.
What is it?
I'm not saying you are wrong.
I'm just saying, what in the words stated are wrong and where is the request that they be stated differently, that I should look at that, and that they weren't.
Mr. Duncan: --Yes, Justice Breyer.
Let me help you with that.
The -- the, at the Joint Appendix page 828 we have the instructions on deliberate indifference.
Chief Justice John G. Roberts: I'm sorry.
What's the page number.
Mr. Duncan: 828.
Chief Justice John G. Roberts: 828.
Mr. Duncan: Joint Appendix 828.
There are the instructions on deliberate indifference.
Let me start here, Justice Breyer.
These instructions are taken from the Second Circuit's Walker decision, which was the first court that I am aware of to allow for the possibility of single incident liability in a Brady situation.
The second instruction there allows a choice.
It allows a choice for the jury to find that a single incident situation -- I'm sorry, that a situation involving a Brady decision could arise and be a basis--
Justice Stephen G. Breyer: To the words -- I mean, it looked to me like the words on page 828 are pretty similar to my copy of what he actually said.
So what are the words on page 828 that you think he should have said that he didn't say?
Mr. Duncan: "The situation involved a difficult choice or one that prosecutor s had a history of mishandling. "
Justice Stephen G. Breyer: What he says here is
"The situation involved a difficult choice or one that the prosecutors had a history of mishandling, such that additional training, supervision or monitoring was clearly needed. "
So it looks to me like, unless I'm reading the wrong page, which I've sometimes done out of my memo here.
It looks to me like he gave those words.
Mr. Duncan: That is the -- I'm sorry.
Then I misunderstood your question.
That's not the actual instruction.
Justice Stephen G. Breyer: I'm saying what is it that you asked the judge to do that he didn't do or that you asked him not to do that he did do?
That's what happens.
That's the way you object to an instruction.
Mr. Duncan: I understand, Your Honor.
Justice Stephen G. Breyer: Okay.
So what is that?
Mr. Duncan: I misunderstood.
I was reading where I thought the single incident theory was posed in the jury instructions.
Justice Antonin Scalia: I thought he asked that.
So I was glad to see that.
Mr. Duncan: The Petitioner specifically asked that an instruction be given that required a pattern of similar--
Justice Stephen G. Breyer: I want you to point out in the record the words that were said to the district court saying
"judge, I want you to say this. "
and then the judge didn't do it.
Mr. Duncan: --It is instruction number 14.
Justice Stephen G. Breyer: Which is where?
Mr. Duncan: The proposed instruction.
I regret to say I don't believe that is in the Joint Appendix, Your Honor.
And it is also--
Justice Stephen G. Breyer: Then I think we take it as you saying that you not objecting to the instruction.
Mr. Duncan: --No, Your Honor.
Justice Stephen G. Breyer: I mean, your whole brief is objecting to the instruction and you didn't include the objection?
Mr. Duncan: No, Your Honor.
The argument is not about the specific jury instruction.
It's about the legal theory.
What it's about--
Justice Stephen G. Breyer: Wait, wait.
If you don't object to the instruction, then we're back to what I'm saying, that what you are objecting to is you don't think the evidence was such that, given that instruction, the jury could find guilt.
And that's what I thought this case wasn't about to begin with, and there are three other instances.
So I don't see why, given this instruction, the jury couldn't find guilt.
Mr. Duncan: --What our main complaint is, is about the failure of the district court to grant a motion for summary judgment and a judgment as a matter of law on the basis that a failure-to-train theory under these circumstances does not permit the single -- the single--
Justice Sonia Sotomayor: I understood -- and maybe I'm confused -- that you were arguing that there was no set of circumstances in which a prosecutor could be handled -- could be liable on a theory of failure to train for one incident.
Mr. Duncan: --That's correct.
Justice Sonia Sotomayor: That that was the petition.
Mr. Duncan: Correct.
Justice Sonia Sotomayor: So it doesn't matter what the facts are.
The facts that Justice Kagan gave you would never constitute an actionable claim against a prosecutor; is that your position in this case?
Mr. Duncan: That's -- under the Canton hypothetical, yes, it would have to fall on the pattern side because the general Brady situation is unlike the single-incident--
Justice Sonia Sotomayor: So what you--
Justice Elena Kagan: Could I add to my hypothetical, then?
Mr. Duncan: --Yes, Your Honor.
Justice Elena Kagan: Suppose that this new district attorney said -- every day he came into the office and he said: I think Brady is just crazy, and I think it's just the worst decision that the Supreme Court has ever issued; and as long as you don't get caught, anything you do is okay by me.
Mr. Duncan: That sounds like a policy to me, Your Honor.
That sounds like a policy, an actionable policy on the part of the policymaker.
Justice Elena Kagan: It's not a policy.
He's just, you know, making his views known around the office.
Mr. Duncan: Well, this Court has defined "policy" as a deliberate choice to embark on a course of action in Pembaur, which this Court accepted.
That sounds like a policy to me.
If it's not a policy--
Justice Elena Kagan: Then the policy is just that you have to turn over what you have to turn over, nothing else, and if you turn over anything else you will get penalized for doing so?
That's the policy?
Mr. Duncan: --Well, then the policy is constitutional.
So what we would look to is are prosecutors failing to exercise their judgment properly pursuant to that policy?
And that falls very squarely within the second part of the Canton choices, which requires a pattern.
This case is about the alleged failure to remedy, to guide, to reinforce, the preexisting legal judgment that a prosecutor has by virtue of being a legal professional.
Justice Ruth Bader Ginsburg: Is that so?
I mean, you are assume that everyone who goes to law school takes a course in criminal procedure, and I think there are many law schools where they don't even have such a course and others where most -- I don't know anywhere it's compulsory to take a course in criminal procedure.
So you're assuming that.
And of course, the time is running.
There is something I wanted to ask you about Brady which seems to me unlike others and why you would want special vigilance.
And that is, Miranda warnings, you know what was said; search and seizure you know what the police did.
But the problem with Brady -- and this case illustrates it so well -- is you don't know.
If the prosecutors don't do what they're supposed to do, there is a very high risk, as there was in this case, that it will never come to light.
So, recognizing the legal obligation of the prosecutor and the temptation not to come out with Brady evidence because it doesn't help the State's case, shouldn't there be extra vigilance when we are talking about a Brady claim?
Mr. Duncan: Well, of course there should be vigilance.
But the question you pose, Justice Ginsburg, is whether the latency, the hiddenness, that characterizes Brady violations should change where we locate the Canton violation.
Should it be enough to put it into the single incident, so-obvious category, or still in the pattern category?
But Canton doesn't indicate that the latency of a particular violation should -- should turn on which category it goes into.
Instead, it's the nature of the employee duties and the employees themselves and how that situation gives notice to a policymaker about when there are obvious training risks.
That's what we are talking about.
So to go back to the hypothetical, in Canton whether or not a deadly force situation is secret or not -- of course it's not.
But the office has failed not just to train, but to inform of the basic constitutional duty, without which those officers have no chance of fulfilling their duties.
And when they do a deadly force violation under those circumstances, the causal link will be very strong.
It will be strong enough to meet Canton.
And so there you have -- there you have a situation where deliberate indifference and causation are met without the pattern.
But what -- you do not have that in the situation of Brady compliance because, as -- as everyone agrees Brady involves gray areas.
It is impossible to determine beforehand exactly why a Brady violation will occur, and what specific training measures would prevent it from occurring.
And what that means is, this falls plainly within what Canton said about the pattern situation.
Here's what Canton said in the footnote 10 following onto the hypothetical.
"It could also be that the police in exercising their discretion so often violate constitutional rights that the need for further training must have been plainly obvious. "
That's the situation we have posed by the Brady situation in general.
Justice Stephen G. Breyer: All right.
But look -- he read the instructions.
They came right out of Canton; seems perfect.
Now you're saying, well, whether they did or not, you cannot have an incident -- you can't have liability if there is only one incident.
And at that point, I say, gee, I don't know; I mean, maybe it depends on what the incident is.
Maybe the incident involved somebody saying: Hey, Brady, what's Brady?
Or somebody saying: What's a criminal trial?
I mean that person needs training.
And -- or -- but I don't even have to think of that here, because there were four incidents here.
And therefore, I don't have to try to make up weird hypotheticals.
So where we have four instances and we have correct instructions, what's the problem?
Mr. Duncan: Your Honor, there weren't four instances.
There was one Brady violation that possibly could have involved one to four prosecutors.
Justice Stephen G. Breyer: Okay.
We have -- we have -- all this case?
I thought that they had several instances in other cases.
Mr. Duncan: --No.
No, Your Honor.
Justice Stephen G. Breyer: All involved -- in other words, there has never in this office been an instance of a Brady violation outside of this case.
Mr. Duncan: No, Your Honor.
That's not true.
Justice Antonin Scalia: Not -- not before this case.
There was some--
Justice Stephen G. Breyer: After, that's what it was.
Justice Antonin Scalia: --later, as far as we know.
Mr. Duncan: There were some -- there were four reported Brady violations before this case, in the decade leading, up, involving this office, that had nothing to do with the circumstances involved here.
Justice Stephen G. Breyer: Ah.
There were four Brady violations involving this office, okay?
Mr. Duncan: Correct, out of tens of thousands of prosecutions.
Justice Stephen G. Breyer: All right.
So now we are talking about not one; we are talking about four--
Mr. Duncan: We're -- but we're--
Justice Stephen G. Breyer: --over many years, with tens of thousands of violations, correct?
Mr. Duncan: --What was -- the Fifth Circuit panel in this case affirmatively said Thompson did not even try to prove a pattern and did not prove a pattern of violations.
The Fifth Circuit panel said that.
Justice Stephen G. Breyer: This is helpful.
Justice Anthony Kennedy: On your instruction in--
Mr. Duncan: Yes, sir.
Justice Anthony Kennedy: --at JA 28 second, would the instruction in your view have been proper, if the "or" had been replaced by an "and", so
"The situation involved a difficult choice and one that prosecutors had a history of mishandling. "
Mr. Duncan: That's closer to what it should be, Justice Kennedy, yes, because that begins to capture the pattern requirement.
It's not -- it's not the pattern instruction that was specifically put forth by the Petitioners in instruction number 15.
Justice Anthony Kennedy: Has there been any argument that you have waived your objection to the instructions?
Mr. Duncan: Not by Petitioners -- not by the Respondent in this case.
There's no -- there's no -- the question--
Justice Ruth Bader Ginsburg: Did you object to it?
To the charge?
Mr. Duncan: --The -- the charge?
Justice Ruth Bader Ginsburg: With the "or", difficult choice, "or" one that prosecutors had a history of mishandling?
Mr. Duncan: No, the Petitioners did not object to the -- the specific formulation of that charge.
Immediately after that charge, though, they -- they said, no, but we -- we have to have a pattern instruction here.
In other words--
Justice Anthony Kennedy: In other words the pattern instruction was -- it was -- was rejected?
Mr. Duncan: --It was rejected.
It was rejected twice, Your Honor, first in the formal jury instructions and then at the charge colloquy.
Justice Sonia Sotomayor: --But that wasn't the question presented to us.
You didn't present to us an issue of whether the jury instruction--
Mr. Duncan: No, Your Honor.
Justice Sonia Sotomayor: --was wrong or not.
Mr. Duncan: What we present is the legal theory on which this case was submitted, what got to the jury in the first place, should never have got to that legal theory at all.
Justice Sonia Sotomayor: You see, what I'm trying to figure out is whether your position is that under no circumstance, even the hypothetical that Justice Kagan set forth, could you be charged with a single incident Canton violation.
That is your -- your theory?
Mr. Duncan: With respect to the Brady situation.
Justice Sonia Sotomayor: The Brady situation.
Mr. Duncan: Let me answer it this way.
What -- what the Canton single incident hypo is talking about is failing to provide -- uh -- employees with basic tools, without which they absolutely have no chance of fulfilling their constitutional obligations.
If we -- it's difficult to imagine that situation for prosecutors.
It is -- it's conceivable that the district attorney's office set up -- sets up a structure where prosecutors have no chance of even knowing whether there is Brady evidence in the file.
If you have that situation, then it's closer to the Canton single incident hypothetical, but not involving the exercise of legal judgment in particular cases.
We say no.
Justice Sonia Sotomayor: Well, how do you exercise legal judgment if you don't even know what you are supposed to turn over?
That was Justice Ginsburg's question.
Mr. Duncan: That's exactly -- that's my point.
That's my point.
If you don't -- if you don't even -- in other words, if you don't even have a police file, for instance, you can't exercise your legal judgment if you don't even know what -- what the subject of your legal -- the object of your legal judgment is.
But that's not this case.
What we're talking about here is the failure to remedy, reinforce, refine existing legal judgment that prosecutors have.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Duncan: If there are no further questions, thank you.
Chief Justice John G. Roberts: Mr. Cooney.
ORAL ARGUMENT OF J. GORDON COONEY, JR., ON BEHALF OF THE RESPONDENT
Mr. Cooney Jr.: Mr. Chief Justice, and may it please the Court:
Although the Petitioner's brief attempts to relitigate factual issues that were resolved against them by the jury, they have raised today only one question of law, and that is whether this Court should write into section 1983 a per se rule that the only way, the only way, a civil rights victim can ever establish the deliberate indifference of a district attorney is if he can prove a prior significant history of assistant prosecutors violating other citizens' constitutional rights.
Justice Antonin Scalia: For -- for Brady violations.
They limit the principle to Brady violations.
Mr. Cooney Jr.: Yes, Your Honor.
And I would submit that--
Justice Antonin Scalia: Well, that's a significant limitation, don't you think?
Mr. Cooney Jr.: --But I would submit, Your Honor, that this Court's -- that their requirement for proving deliberate indifference is, first, contrary to the teaching of this Court in Canton and subsequent cases.
It finds no place in the language of section 1983--
Justice Anthony Kennedy: But at the -- but at the outset it seemed to me, and correct me if I'm wrong, that you misstate the theory on which you seek to -- to have a reversal and that this is a failure-to-train case.
You didn't mention that.
Mr. Cooney Jr.: --Your Honor--
Justice Anthony Kennedy: This is a failure-to-train case, is it not?
Mr. Cooney Jr.: --It is absolutely a deliberate indifference to the need to train and provide other protections--
Justice Anthony Kennedy: Well, I think that's very important.
Justice Samuel Alito: Yes, if you could -- could you just say as succinctly as possible what you would tell assistant district attorneys if you were the district attorney for this jurisdiction, and you with the benefit of hindsight, having seen this case, what kind of -- what would you tell them they should do with respect to Brady?
Mr. Cooney Jr.: --Yes, Your Honor.
First of all I think Canton says you have to look at the specific circumstances.
And so I don't think there is a one-size-fits-all way or message that has to be provided.
Justice Samuel Alito: No, but you are training them, so: Now I want to tell you what you have to do under Brady.
Mr. Cooney Jr.: Well, first--
Justice Samuel Alito: What do you tell them?
Mr. Cooney Jr.: --In this office, Your Honor, I think the first thing one has to confront is Mr. Connick's testimony, and in fact the concession that the Petitioners made on pages 6 and 7 of their merits brief that the office started with what the brief described as:
"Connick's disclosure policies were no mystery. "
"Turn over what the law required and nothing more. "
I mean, that would be--
Chief Justice John G. Roberts: Well, Justice Alito's question was what you would tell the assistant D.A.'s.
What's your answer?
Mr. Cooney Jr.: --And Mr. Chief Justice, with -- if -- first of all, I wouldn't start with that rule.
But if I started with that rule it would be incumbent upon me--
Justice Antonin Scalia: Why wouldn't you start with that rule?
The rule is perfectly lawful; my goodness.
Mr. Cooney Jr.: --Your Honor, I'm not saying it's an unlawful rule.
However, it requires a countervailing message.
And if you're going to adopt--
Justice Samuel Alito: I really would appreciate it if you'd get to my question.
Brady requires that exculpatory evidence be turned over.
Now, do you -- do you think the assistant prosecutors didn't even know that?
Mr. Cooney Jr.: --Your Honor, I don't know that.
It seems from the record in this case they thought that only something that screamed "exculpatory evidence" on its face needed to be turned over.
Justice Samuel Alito: Okay.
Now, you phrase -- you are the instructor.
You phrase the lesson that you think is required by Brady that has to be given to them.
Mr. Cooney Jr.: I think at a minimum it has two pieces, Your Honor.
It has basic instruction about how to go about fulfilling the Brady obligation, and how do you go about looking through the file to make sure you know what's there, making sure you have documents that are in the possession of the police.
Thinking in advance, as this Court talked about in the Agurs case, about what the evidence is going to be at trial and looking thoughtfully at that evidence to determine whether or not the evidence was favorable to the accused and needs to be produced.
Chief Justice John G. Roberts: Okay.
That's your instruction on -- on Brady.
Now, you are basing liability on -- on this incident of failing to comply with Brady.
So you say they should have instructed on Brady.
What else should they have instructed on?
Mr. Cooney Jr.: Well--
Chief Justice John G. Roberts: You are the -- you're the new D.A. and you are putting up -- I need to instruct my people.
What -- what do they instruct on?
I know they instruct on Brady under your view.
Mr. Cooney Jr.: --I think the second thing that the -- that the office really should do is to -- to talk about the importance of safeguarding the innocent here, that our job is not just to secure convictions.
Chief Justice John G. Roberts: Well, we are -- we are looking at specifics where they are going to violate the Constitution.
I think that's a good thing, to tell them they have an obligation as well to protect the innocent.
But we are worried about violations of our constitutional requirements.
We know Brady is one.
What is the next one?
What is day 2 in the course?
Mr. Cooney Jr.: Well, Your Honor, I -- I do think that there are other constitutional requirements involved.
Most of the hypotheticals, however, that have been brought before the Court as a parade of horribles aren't actions by the district attorney.
Justice Samuel Alito: I mean, with respect, I really don't, as a young district -- assistant district attorney, that you have told me anything that's going to be really helpful to me other than, you know, follow the law, which you certainly should do, in dealing with my obligation to turn over physical evidence, which is what's involved here.
Mr. Cooney Jr.: Your Honor--
Justice Samuel Alito: Or a lab report regarding physical evidence.
Now, suppose I have -- I have several cases.
I have this case, where I have got blood -- I have physical evidence, I have a blood test.
I have another case where all I had was physical evidence, but there has been no testing on it.
Now, do I have to turn over that physical evidence?
Mr. Cooney Jr.: --In this case, there has been a stipulation by the district attorney's office that you do.
And I think if you think about the evidence in this--
Justice Samuel Alito: I have to turn over all physical evidence that's in my possession?
Mr. Cooney Jr.: --No, Your Honor.
Justice Samuel Alito: Okay.
Mr. Cooney Jr.: But here, the specific--
Justice Samuel Alito: Now, what's the instruction that you are going to give me to tell me where I'm going to draw that line?
Mr. Cooney Jr.: --If you have physical evidence that, if tested, can establish the innocence of the person who is charged, you have to turn it over.
Justice Samuel Alito: Well, how do I know that before--
Justice Elena Kagan: Well, don't they make it available?
Justice Samuel Alito: --How do I know that before the physical evidence is tested?
Suppose I've got all sorts of items that were found at the scene, and they might have DNA on them.
They might have epithelial samples on them.
You know, all this fancy forensic testing that is done these days.
Do I have to turn over all of that?
Mr. Cooney Jr.: No, Your Honor.
In this case what we are talking about is a piece of evidence, a specific piece, several specific pieces of physical evidence, that it has been stipulated the prosecutors knew contained the blood of the perpetrator.
It -- the rule and the training that should have been provided in this instance, particularly since the DA argues that it was perfectly clear that that should have been produced--
Justice Samuel Alito: Now, you see what I'm getting at is that you are dealing with a very specific situation.
So the instruction would be: If you have physical evidence and you have tested it for blood and you have a -- you have the result of the blood test, but you don't know whether -- you don't know the blood type of the accused, that -- that's Brady evidence, and that has to be turned over.
And you are saying that the failure to provide training to every assistant district attorney on a question of that specificity gives rise to a -- a potential claim, gives rise to a claim?
Mr. Cooney Jr.: --Your Honor, what I'm saying is that I think there are at least three layers to the training that were missing here.
One was the clear message about the importance of Brady compliance.
The second was the basic ground rules about how you go about your Brady obligation.
And third, if you have evidence that can conclusively establish to a scientific certainty the innocence of the person being charged, you have to turn it over or get it -- get it tested.
You can't just put it in your hip pocket and say, I know--
Justice Sonia Sotomayor: Wait a minute.
Wait a minute.
What evidence is there that they put this in their hip pocket?
There was a disclosure that the evidence existed.
Where is the evidence that the defense counsel didn't have access to asking for it?
Mr. Cooney Jr.: --Yes, Your Honor--
Justice Sonia Sotomayor: Or asking for it to be tested?
Where was that suppressed?
Mr. Cooney Jr.: --The -- the only information -- there was a discovery response that was filed very shortly before trial, long after Mr. Thompson was charged with the crime, where in response to one of the questions, the response was: "Inspection to be permitted".
If you look at the chronology--
Justice Sonia Sotomayor: And where is the Brady violation for telling a defense attorney, there was a blood sample there, you can test it?
Mr. Cooney Jr.: --Your Honor, there was no information provided.
It was -- the simple response was that the request was for all scientific evidence and it simply -- and physical evidence from the scene of the crime.
The answer was: "Inspection to be permitted".
Then the blood evidence, the very next day, after the response was provided, was removed from the crime lab by the prosecutors, never to be found again.
And defense counsel testified without impeachment at trial that he went to the evidence locker, looked in the evidence locker, found certain pieces of physical evidence consistent with the discovery response, but not the blood evidence, neither the blood report nor the physical specimens that were involved in this case, Your Honor.
Justice Sonia Sotomayor: So that you are claiming there was suppression of that evidence?
Mr. Cooney Jr.: Absolutely, Your Honor.
Chief Justice John G. Roberts: So if it is -- prosecutors can violate a defendant's constitutional rights by making improper statements in their closing arguments.
Do you have to instruct new -- I suspect new prosecutors coming out of law school don't know what those rules are.
Do you have to give instruction on what they can say in closing arguments?
Mr. Cooney Jr.: Your Honor, I think, first of all, the issue has to rise to a constitutional level in order to be talking about this for section 1983 purposes.
Chief Justice John G. Roberts: My understanding is -- I'm not an expert in criminal law.
I need training in that.
But my understanding is that comments in a closing argument can give rise to a constitutional violation.
So you should -- you should train those people.
You know that.
You know that that can happen, just as you know there can be Brady violations.
So they need training in exactly what they can say and can't say in closing arguments.
Justice Anthony Kennedy: And Miranda, and proper supervision of affidavits in support of search warrants, and proper instructions that tell the police not to exceed the scope of the warrant.
So this is -- our course is expanding.
Mr. Cooney Jr.: Justice Kennedy--
Justice Anthony Kennedy: The point of concern here is that we're going to have to go through a list, case by case, of everything there has to be training on.
Mr. Cooney Jr.: --I think -- I think there are some important distinctions here.
And first of all, when you are talking about search and seizure, when you are talking about Miranda, when you are talking about those things, the actor that is committing the constitutional tort there is not the district attorney.
It's the police.
What we're talking about here, the constitutional tort--
Chief Justice John G. Roberts: When you are talking about improper comments in closing argument, it is the prosecuting attorney.
Mr. Cooney Jr.: --But the second important distinction, Your Honor -- and I do believe training should be given there.
But I think there is a fundamental distinction between a Brady violation, which happens in private and may never be revealed, and if revealed, happens long after trial and long after incarceration, and a situation where a prosecutor makes an improper comment during a closing jury, which is made in public.
Defense counsel has the opportunity right there to stand up and say, Your Honor, I object, and the Court has the ability to address that issue then and there.
With a Brady violation, you don't have any of that.
It's made in secret.
Chief Justice John G. Roberts: So you don't have to train with respect to closing arguments?
Mr. Cooney Jr.: Your Honor, I think they do.
But I think there's -- there's a particular issue.
There is particular force in this context because of the unique nature of Brady, because it's made in private.
Because it is -- by definition, if the information has been concealed, it has not been revealed prior to the time the defendant suffers constitutional harm.
He's found guilty, he's sentenced to death, et cetera.
The Brady violation, unlike your situation, Mr. Chief Justice, doesn't come to light, perhaps ever.
But in Mr. Thompson's case, more than a decade after he was convicted.
Justice Ruth Bader Ginsburg: And it's something like I was trying to get at before when I said Miranda was out there, you know what was said, you know what was seized.
Talking about -- but Brady, if the prosecutor doesn't come out with it, high risk that it will never come out.
So we have use of force, plus that -- which could kill people if you were not properly trained.
Brady, because if they don't come up with the information, it could have what almost happened in this case.
Anything else on this special list?
Mr. Cooney Jr.: Your Honor, I--
Justice Ruth Bader Ginsburg: The concern was that you don't want to have to give the prosecutors a clinical law school course before you let them do their job.
Mr. Cooney Jr.: --I agree with that concern, Your Honor.
And I think it's important to remember that in this case, this was a no-training case.
The evidence in the light most favorable to Mr. Thompson was -- there was zero Brady training in the office.
Justice Elena Kagan: So what would have been enough?
I mean, is an hour a year enough?
Is an hour a month enough?
Mr. Cooney Jr.: I think that would have been dependent on what its content was, Your Honor, and the other circumstances of the office.
If you look at Canton, what Canton does is it asks the question: Is there an obvious need for training based on the circumstances of this particular--
Justice Antonin Scalia: Wait.
As I understand it, you really have a need to train them in, when you know defense counsel is coming over to look at the physical evidence, don't remove from the locker some of the physical evidence?
You want to give a course in that?
Mr. Cooney Jr.: --Your Honor, what happened is the physical evidence very conveniently was being sent to the crime lab when it was removed.
And so we don't know what the motivation was as to why that physical evidence was removed at that time.
What we know is for many, many months--
Justice Antonin Scalia: Well, then, you shouldn't have mentioned it.
I thought you were asserting that it was intentionally removed in order to prevent defense counsel from seeing it.
Mr. Cooney Jr.: --What we assert, Your Honor--
Justice Antonin Scalia: You don't know that.
Mr. Cooney Jr.: --It was certainly not -- it was intentionally not placed back in into evidence after it came back from the crime lab, and there was actual testimony from the grand jury that was handling this and looking into this situation for some period of time of just that.
Justice Anthony Kennedy: There is a causation problem here.
Even assuming training, if Deegan was going to destroy the evidence, or remove it anyway, as he admitted later to Rileman, then the training or lack of training is just irrelevant.
Mr. Cooney Jr.: Your Honor, I think there are--
Justice Anthony Kennedy: And I'm very concerned about that causation aspect.
Mr. Cooney Jr.: --First of all -- let me address that directly.
First of all, the causation question was put to the jury; the jury instruction very clearly said in order for there to be liability here the fault must be in the training program, not in the individual prosecutor, and the defense argued vehemently that there was a lack of causation.
What's interesting here is--
Justice Samuel Alito: But the judge actually, though, instructed the jury -- this is back on JA 828 -- in order to find that the district attorney's failure to adequately train, monitor or supervise amounted to -- deliberate indifference, etcetera.
So liability could have been predicated not on the lack of adequate training, but the absence of a process by which superiors in the district attorney's office reviewed all of the Brady decisions that were made by more junior prosecutors; isn't that correct?
Mr. Cooney Jr.: --Your Honor, the concept of monitoring or supervision was actually the concept that defendants injected into the case.
And so to the extent that there is any concern that there's an expansion from training, it's been error that's invited.
And I don't believe it's error, Your Honor; but it's not something that -- that was put into the case by the defense or the court.
Justice Samuel Alito: Why wouldn't -- why wouldn't that be error?
That is, the head of a very large office is personally liable under Canton for violations that are -- that are produced by actions taken by subordinates, unless there is an elaborate process to review all of the decisions that are made by those subordinates?
Doesn't that go well beyond anything Canton permits?
Mr. Cooney Jr.: Your Honor, again, the clear thrust of this case was a failure to train case.
The concept of monitoring and supervision was introduced by the defense, not by the -- by the plaintiffs.
But to get back to Justice Kennedy's case--
Justice Sonia Sotomayor: Could you please state in simple terms to me what exactly they failed to train these prosecutors to do, that the prosecutors didn't do?
What training -- Justice Alito asked it generally, I'm asking specifically -- what is the exact training that was required in this situation that caused the violation in this case?
Mr. Cooney Jr.: --Number one, there was absolutely no Brady training at all.
Justice Sonia Sotomayor: Forget about no Brady training.
What -- I think Justice Alito asked this question.
What specifically would the training have said or done that would have avoided this Brady violation?
Mr. Cooney Jr.: First of all, I think a broad statement in training about the importance of safeguarding the rights of the accused--
Justice Sonia Sotomayor: Now that seems to suggest that you are claiming that if there was an intentional violation by prosecutors, that that statement would have avoided the prosecutor from doing something he or she knew was illegal.
Is that what you are intending?
Mr. Cooney Jr.: --No, it isn't, Your Honor.
Justice Sonia Sotomayor: Okay.
So tell me.
Mr. Cooney Jr.: The -- the second aspect of -- of it, though, is what I said to Justice Alito, and that is that if you have physical evidence which if tested would establish either the guilt or the innocence of the -- of the defendant, it needs to be produced.
Or at least tested.
Justice Sonia Sotomayor: That goes to the sufficiency--
Mr. Cooney Jr.: Right.
Justice Sonia Sotomayor: --of whether they had a policy to turn over or -- because it was tested, so there was no Brady violation from the failure to test here.
Mr. Cooney Jr.: The Brady violation was for failure to produce, you are right.
Justice Stephen G. Breyer: Isn't -- am I right -- am I right on this?
Here -- I read on page 4 of your brief that it seemed what happened -- and I might not be right, correct me if I'm not.
What happened is a piece of paper called the lab report came to the -- one of the prosecutors' attention two days before the trial, and what it said was, the blood that was the perpetrator's was type B.
And the person on trial has blood of type O.
Is that what happened?
Mr. Cooney Jr.: Your Honor, certainly what the crime lab report said was that the blood that was tested of the perpetrator was type B.
Justice Stephen G. Breyer: And the -- and the prosecutor knew that the person on trial had type O?
Mr. Cooney Jr.: We don't know that, Your Honor.
Justice Stephen G. Breyer: Ah, that's something--
Mr. Cooney Jr.: That's the unresolved factual question.
Justice Stephen G. Breyer: --I see.
Mr. Cooney Jr.: And I think that's where causation comes in, Your Honor, because I think there are two possibilities.
Justice Stephen G. Breyer: Did it turn out at the trial that eventually the prosecutor knew it was type O?
Mr. Cooney Jr.: Yes.
It turned out that Mr. Thompson was in fact type O.
But the evidence--
Justice Stephen G. Breyer: When the did they learn that?
Mr. Cooney Jr.: --The evidence is unclear as to whether or not the assistants knew at the time that John Thompson had type O blood.
Chief Justice John G. Roberts: Could I ask you what -- most law offices with which I am familiar, the training is mentoring.
In other words, the young attorneys learn from the older attorneys, often by following them along -- around.
Would it have been an adequate training program for this office simply to say, new prosecutors, you don't get to be first chair prosecutors until after a year, and you are going to follow one of the prosecutors around and learn from them?
Is that an adequate training program?
Mr. Cooney Jr.: If in fact the senior prosecutors, Your Honor, have a good familiarity with the constitutional requirements--
Chief Justice John G. Roberts: Yes.
Mr. Cooney Jr.: --absolutely.
Chief Justice John G. Roberts: Even -- even if the violation that becomes of the basis for the claim later on is one that, you know, didn't come up in that year?
We -- they didn't have a Brady issue in that first year.
They went around; they sat in, in a lot of trials; but there wasn't a Brady issue and so they didn't learn about this type of question.
And -- does that give rise to a claim of the sort you are bringing here.
Mr. Cooney Jr.: I think -- I think the failure here, and I think we have to come back to the deliberate indifference piece.
Because what would happen there in that instance, Your Honor, even if the training was not provided, I think as experience has shown under Canton, that claim would fail for failure to show the deliberate indifference of the policymaker.
But here you had substantial evidence about Mr. Connick's indifference.
Justice Samuel Alito: Mr. Cooney, when you -- when you gave the specific instruction which you think should be provided to assistant district attorneys, what you stated was a questionable understanding of Brady, I think.
You -- did I understand you correctly?
You said that Brady means that if the prosecutor has physical evidence which if tested might establish the defendant's innocence, that is exculpatory evidence that must be turned over?
Mr. Cooney Jr.: Your Honor, that certainly has been the position taken by the district attorney's office in this case.
Justice Samuel Alito: Isn't that to do with Arizona v Youngblood.
Mr. Cooney Jr.: Your Honor, I believe it -- it is consistent with Brady that if -- if one has a piece of evidence that can conclusively establish that the defendant is innocent, that it can't be the law that the prosecutor can just put it in his hip pocket, not get it tested, and not turn it over to the defense, and not worry about whether they're prosecuting an innocent man.
Justice Sonia Sotomayor: But you see, it was tested.
And it was made available to the defense.
Turning over -- using the word turning over is ridiculous, because they are not going to physically give it to the defense attorney to go off and do what he wants.
They are going to give it to a lab that will establish a chain of custody, et cetera, et cetera.
So it was made available.
He went to look at it but the looking at it wouldn't have told the defense attorney anything.
They had to make it available for testing.
He never asked for testing.
They did the lab reports.
So now we come down to the only failure is in the turning over of this report.
Mr. Cooney Jr.: No, Your Honor.
First of all there is -- there is a stipulation, stipulation L at JA 14, prior to the armed robbery trial, Mr. Thompson and his attorneys were not advised of the existence of the blood evidence, that the evidence had been tested, that a blood type was determined definitively--
Justice Sonia Sotomayor: Now what did I just say?
The failure to turn over the report.
Mr. Cooney Jr.: --But -- but -- yes, Your Honor.
But -- what also is present here is the defense never had the chance to -- never saw the physical blood evidence itself.
Justice Sonia Sotomayor: Never knew it existed?
Mr. Cooney Jr.: Never knew it existed, Your Honor.
Justice Sonia Sotomayor: That's--
Mr. Cooney Jr.: There is testimony clear -- testimony to that effect.
If you look at Mr. Williams' testimony in this case, there is a section of the cross-examination where John Thompson's defense counsel at the original criminal trial said just that.
He didn't know it existed.
Justice Antonin Scalia: But it isn't -- it isn't clear from what -- according to what you said earlier it isn't clear that it was intentionally withheld from the defense.
It might have just been -- you said it was sent to the lab when -- when he came to look for it.
Mr. Cooney Jr.: But--
Justice Antonin Scalia: So would training have -- have gone into that detail?
"Don't send something to the lab when defense counsel is coming over to look for it. "
I mean, you know, that -- that's pretty detailed.
Mr. Cooney Jr.: --Yes, Justice Scalia, but here there is a stipulation that the crime lab report with the conclusive evidence about the perpetrator's blood type was never--
Justice Antonin Scalia: Okay, but -- but that -- that's the lab report.
That -- that's what Justice--
Mr. Cooney Jr.: --And the physical evidence was never seen, Your Honor, by defense counsel.
Justice Antonin Scalia: --For all we know, by accident, right?
And the training would -- would probably not have remedied that -- that difficulty.
Mr. Cooney Jr.: Your Honor, four prosecutors, it is clear that four prosecutors knew about the existence of blood evidence for months, and it was never produced to the defense.
And that blood evidence would have conclusively established John Thompson's innocence.
Justice Antonin Scalia: The defense was told to come over and look for it -- to look at it.
And when he came over to look at it -- for all we know, by accident -- it was -- it had been sent to the lab.
Mr. Cooney Jr.: But -- but Your Honor, the "it" was not come over and see the blood evidence.
It was, there was a broad request for -- for--
Justice Antonin Scalia: Yes, I understand, but -- yes.
Mr. Cooney Jr.: --Physical evidence at the crime scene, including things that have nothing to do with blood.
So there is nothing that the defense lawyer would have known by going to the evidence room to say, I know there is nothing here.
Chief Justice John G. Roberts: But isn't that -- isn't that best practice?
In other words, I thought that was the good thing, when what the prosecutor does is say, look at everything we've got.
And as my brother has suggested, what is important may not be there for either deliberate misconduct or by happenstance.
Mr. Cooney Jr.: But the point here, Your Honor, and I think this goes to the causation point, that -- that it would appear -- it would appear from looking at Mr. Williams' testimony that there was a deliberate effort to stay away from blood evidence in the carjacking case.
And Mr. Williams conceded that.
So this idea that this was an innocent error on the part of the prosecutors does not find support in the record.
The question is--
Justice Sonia Sotomayor: --But that dooms your case-- if it wasn't an innocent error, if it was an intentional violation of Brady, there is no training that was going to stop him from doing that.
Mr. Cooney Jr.: --Your Honor, I think there is a difference between a tactical choice to do something -- Sharpe -- on the one hand, and a knowing Brady violation on the other hand.
And the jury could clearly conclude -- particularly because the 30(b)(6) witness in this office testified that, in his view, it wasn't Brady material unless the prosecutors knew John Thompson's blood type, the jury could clearly conclude that what happened here was these four prosecutors didn't understand and never got a clear message about -- about what Brady required, and they did not produce this evidence.
There is nothing that clearly showed that they committed knowing Brady violations in this case.
Justice Elena Kagan: Mr. Cooney, I'm still confused as to sort of how much is enough by way of training and how you would ask a court or a jury to decide that.
You suggested to the Chief Justice formal training wasn't -- isn't necessary if there is some supervision, if there is some mentoring.
But, you know, this seems to give cities no sense of what they have to do.
No safe harbors.
Is that your position?
Mr. Cooney Jr.: Your Honor, I think that Canton articulates a very flexible test.
And I don't think Canton says there is one size that fits all.
And I think the protection that district attorney's offices get from Canton is from the standard of deliberate indifference.
And if one looks at the 21 years of experience under Canton, there have been 6 and 8 cases against prosecutors' offices under this kind of theory, in total, where there was some payout from the prosecutors' offices to the defense.
Total in the 21 years.
So -- and the Court said -- this Court said in Canton, judge and jury doing their job are adequate to the test.
I think we have been spending a lot of time focusing on how much training.
The fact is, this is a no-training case, where evidence that the defendants now concede should have been produced wasn't produced, and four people knew about it and failed to produce it.
In addition, there were multiple additional pieces of Brady material in the murder case that weren't produced.
Chief Justice John G. Roberts: Would this have been a no-training case if the rule was you have to be in the office for 3 years as a second chair prosecutor before we let you have a case, and in fact, you have to be here 10 years before we let you have a capital case?
That's all it says.
Is that sufficient training?
Mr. Cooney Jr.: --I think, again, you would have to look at the circumstances of the office.
I think with this -- this presumption against disclosure that was present in Connick's office, that takes this case out of the realm of the typical prosecutor's case, because it is a bare minimum disclosure rule.
I think there needs to be -- if you are going to have that bare minimum disclosure rule, there needs to be something to counterbalance.
If you look at what the assistants testified to in this case, they all knew what not to produce.
What they didn't know was what to produce.
Justice Ruth Bader Ginsburg: But what do you do with the Dubelier testimony?
Didn't he testify that it was standard operating procedure to turn over all lab reports?
Mr. Cooney Jr.: Your Honor, I think there are two very quick answers to that.
If one looks at J.A. 550 to 551, which was Mr. Glas, the grand jury prosecutor's, testimony.
What he clearly said was during the grand jury, when Mr. Connick decided to terminate the grand jury, Mr. Connick and his first assistant were actually arguing with Glas that if the prosecutors didn't know John Thompson's blood type, they didn't need to turn over the blood report.
So that is number one.
I think there is an issue of fact that has to be resolved in our favor solely from J.A. 550 and 551.
And the second is, Your Honor, the -- the rule, the bare minimum discovery rule.
Louisiana law did not require the production of crime lab reports in 1985.
Chief Justice John G. Roberts: Thank you, Counsel.
Mr. Duncan, have you three minutes remaining.
REBUTTAL ARGUMENT OF S. KYLE DUNCAN ON BEHALF OF THE PETITIONERS
Mr. Duncan: Justice Alito and Justice Kagan, you asked repeatedly questions designed to elicit the response from my colleague: What would you tell ADA with respect to training -- and I believe Justice Sotomayor as well -- that would have prevented such a thing?
And I didn't hear a clear answer.
The legal issue in this case turns on the fact that in the deadly force scenario that Canton marks out as the paradigm single incident case, it is very clear what a police office needs to tell a police officer.
Here's the deadly force standard under Tennessee v. Garner: Don't shoot people unless there is a reasonable probability of physical danger to yourself or to others.
You've got to tell them that.
With respect to the Brady scenario, it's not clear at all.
Yes, of course, training is useful.
Yes, of course, training is important.
But how do you connect up a lack of specific training with a particular violation that occurs?
And having heard the argument, I'm -- I'm no longer clear as to what the theory of the case of my colleague's is about what caused the violation.
Whatever caused the violation, I haven't heard about a specific training measure that would have actually prevented what happened in this case.
Chief Justice John G. Roberts: How do you train your new hires?
First day, somebody right out of law school shows up and says, I want to be an assistant district attorney.
How do you train them?
Mr. Cooney Jr.: I think the first thing you do is you have a hiring process that emphasizes the important of -- the importance of Brady, as this office did.
Brady was important.
One witness said -- McElroy -- from the moment you walked in the door, you had to write an essay on Brady.
Brady was emphasized as being very important.
Justice Elena Kagan: Mr. Duncan, that I think you can't say, because that's just overturning what the jury found.
Mr. Duncan: I -- I don't think -- the jury couldn't have found that that didn't occur, Your Honor.
The jury found that that was inadequate.
Justice Elena Kagan: The jury found that there was inadequate training.
Mr. Duncan: Correct, Your Honor.
Justice Elena Kagan: In fact, the jury found -- I think, if you look at the record -- the jury could have found, a reasonable jury could have found, that there was no training here.
Mr. Duncan: A reasonable jury could have found -- well, Your Honor, we don't contest the finding of inadequate training.
What we contest is the ingredients that could lead to a deliberate indifference finding on the basis of inadequate training.
And what we say is that this case, that is a general case about you failed to train on Brady, it doesn't fit within the single incident hypothetical.
And what I was trying to get at with -- in response to your questions and Justice Alito's questions was that, if you can't say with any specificity, well, what training do you give?
You asked repeatedly, Your Honor, how much training is enough?
So is an hour a year?
I thought I heard my colleagues say that an hour a year may make this not a no-training case, and so what you have there is a pattern of--
Justice Stephen G. Breyer: Do we have to overturn what the jury found?
Mr. Duncan: --No, Your Honor.
Justice Stephen G. Breyer: We don't?
Because they found that the failure to adequately train amounted to deliberate indifference to the fact that inaction would result in a constitutional violation.
That's what they found.
Now, how can we -- assuming that's true, and accepting it and not overturning it -- find that there was something unlawful?
Because you are arguing -- you are all arguing about whether the training program really was adequate or not.
They found it was not.
What do we do?
Chief Justice John G. Roberts: You can answer.
Mr. Duncan: Thank you, Your Honor.
The correct resolution is the lower courts should dismiss the failure to train claim as a matter of law because there was no demonstration of the pattern of violations and this situation does not fall within the narrow range of circumstances that Canton foresees for single incident liability.
Chief Justice John G. Roberts: Thank you, Counsel.
The case is submitted.
Justice Ruth Bader Ginsburg: Justice Thomas just reported, I dissent from today's decision.
Nearly half a century ago in Brady against Maryland, this Court held that due process requires the prosecution to turn over evidence favorable to the accused and material to his guilt or punishment.
That obligation was dishonored in this case.
Consequently, John Thompson spent 14 years isolated on death row, before the truth came to light.
He was innocent of the charge of attempted robbery and his subsequent murder trial, by prosecutorial design, was fundamentally unfair.
Within weeks of Thompson's scheduled execution, a private investigator hired by defense counsel unearthed a police crime lab report.
Prior to Thompson's armed robbery trial, the crime lab had tested a swatch of fabric stained with the robber's blood.
The lab reported to the prosecutors that the perpetrator's blood type was B.
Thompson's blood type is O.
Petitioners acknowledged that Thompson's prosecutors violated his right to due process by withholding from defense counsel the blood stains swatch and the lab report.
After his exoneration, Thomson filed a civil rights action seeking to hold the Orleans Parish District Attorney's Office liable for failure to train prosecutors concerning their Brady obligations.
Such liability attaches, I agree with the Court, only when the failure to train amounts to deliberate indifference to the rights of persons with whom untrained employees come into contact.
Unlike the Court, however, I would hold that the record in this case abundantly shows labels of difference to Thompson's rights.
As we counted in detail in the written dissent, the conceded, long-concealed prosecutorial transgressions in Thompson's trials were neither isolated nor atypical.
They were just what one would expect given the attitude toward Brady pervasive in the district attorney's office, just one of many examples.
The prosecution in Thompson's murder trial failed to produce a police report containing an eyewitness description of the murderer as six feet with close cut hair.
Thompson is five feet eight inches tall.
And at the time of the murder, he styled his hair in a large Afro.
No fewer than five prosecutors concealed year upon year this and other evidence vital to Thompson's defense.
And his retrial on the murder charge, which yielded a prompt not guilty verdict, the defense introduced 10 exhibits containing evidence not disclosed when Thompson was first tried.
One instruction that Orleans Parish prosecutors received regarding their obligation to reveal evidence favorable to the accused, District Attorney Connick hired staff members right out of law school.
And because of high turnover, inexperienced prosecutors quickly became supervisors.
The supervisors leading Thompson's prosecutions learn their craft in Orleans Parish.
They recalled no instruction at the District Attorney's Office on Brady and its application.
Ample evidence presented at the civil rights trial demonstrated that Connick deliberate -- deliberately indifferent attitude created a tinderbox in which Brady violations were not inevitable.
And when they did occur, Connick maintain that there was no need to change anything, he terminated grand jury investigation into prosecutorial misconduct in Thompson's case because holding the prosecutors accountable he felt that make his job more difficult.
The Court suggests that lawyers, unlike rookie police officers, are guided by their professional education and ethical rules and therefore need no special Brady training.
As a handling of Thompson's prosecution shows, however, Brady compliance is too much at risk and too fundamental to the fairness of our criminal justice system to be taken for granted.
Training remains critical and Connick himself should have been the principle insurer of that training.
I do not suggest that Con -- that Connick can be held vicariously liable to Thompson's ordeal.
My point is that Connick bares responsibility for his own deliberate indifference to and all too apparent need for on-the-job Brady training.
In accord with the Court of Appeals, and before it, the District Court, I would uphold the jury's verdict awarding damages to Thompson for the gross, deliberately indifferent and long-continued violation of his fair trial right.
Justice Breyer, Justice Sotomayor and Justice Kagan joined me in this dissenting opinion.
Justice Clarence Thomas: This case comes to us on a writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
Respondent John Thompson was convicted of attempted armed robbery in 1985.
Because of that conviction, Thompson chose not to testify in his own defense in his later trial for murder.
He was convicted and sentenced to death.
While Thompson was in prison, his investigator discovered a crime report from his robbery case.
The district attorney's office agreed with Thompson that according to Brady versus Maryland, the prosecutors should have disclosed the lab report to Thompson during his trial.
Because Thompson's blood type did not match that in the crime lab report, his robbery conviction was reversed.
Thompson's murder conviction was also reversed on the ground that the armed robbery conviction had unconstitutionally deprived him of the right to testify in his own defense at his murder trial.
In 2003, Thompson was retried for the murder and found not guilty.
Thompson then sued the district attorney's office for damages under 42 U.S.C. 1983.
He alleged that the district attorney fails to train the prosecutors adequately about their constitutional duty under Brady to produce exculpatory evidence.
And that this lack of training had caused the prosecutor's failure to disclose a lab report in his case.
The jury awarded Thompson $14 million and the Court of Appeals for the Fifth Circuit affirmed by an equally divided en banc court.
In an opinion filed with the clerk today, we reversed the judgment of the Court of Appeals.
Under our precedence of plaintiff seeking to hold the Government liable for failure to train must show deliberate indifference.
Deliberate indifference requires proof that policy makers disregarded the known or obvious fact that a particular omission in their training program would cause employees to violate citizens' constitutional rights.
Ordinarily, a pattern of constitutional violations by untrained employees is necessary to show deliberate indifference.
Thompson does not argue that any pattern of previous similar Brady violation exists in this case.
In Canton versus Harris, this Court left open the possibility that failure to train liability could be based on a single incident when the need for training was patently obvious such as when a city does not tell police officers about the constitutional limits on the use of deadly force.
Today, we conclude that Canton's hypothetical exception does not apply to claims about failure to train prosecutors.
Constitutional violations are not necessarily the consequence of a failure to train prosecutors.
Attorneys are trained in the law and equipped to interpret and apply legal principles and exercise legal judgment.
Prosecutors, in particular, are ethically required to know and follow Brady.
In the absence of a pattern of previous Brady violations that would demonstrate that further specific training is necessary, a district attorney is not deliberately indifferent when he relies on prosecutor's professional training and ethical obligations.
A district attorney's office therefore may not be held liable under Section 1983 for failure to train based on a single Brady violation.
Justice Scalia has filed a concurring opinion in which Justice Alito joins.
Justice Ginsburg has filed a dissenting opinion in which Justices Breyer, Sotomayor and Kagan joined.