Retired justice responds to editorial slamming 'bizarre 2011 ruling'
Retired Justice John Paul Stevens may not like a 2011 Supreme Court ruling on prosecutorial immunity any more than New York Times editorial writers. But he still takes issue with an editorial slamming the decision.
Stevens wrote a letter to the editor advocating a way to hold prosecutors accountable for misconduct: Apply the rule of respondeat superior, which requires employers to pay damages for torts committed by their employees in the ordinary course of business.
The Times editorial labels the Supreme Court’s immunity decision, Connick v. Thompson, a “bizarre 2011 ruling” that effectively foreclosed one of the only ways to hold prosecutors accountable for wrongdoing. In Connick, the Supreme Court majority said that, absent a pattern of misconduct, the New Orleans district attorney wasn’t liable for failure to turn over exculpatory evidence.
The editorial identifies a pending cert petition (PDF) filed on behalf of two exonerated inmates convicted by the same office. The inmates, Earl Truvia and Gregory Bright, allege New Orleans prosecutors failed to turn over key evidence to the defense. “If the justices agree to hear the petition,” the Times says, “they could undo some of the harm they did in 2011 and help cure what one federal appellate judge has called an ‘epidemic’ of prosecutorial misconduct across the country.”
Stevens says the editorial “correctly identifies the manifest injustice” in the 2011 decision, but it “doesn’t identify the most effective means of avoiding similar injustices in the future.” Stevens says he backed the idea of respondeat superior in a 1985 dissent. “Either Congress or the Supreme Court could adopt” the solution, he writes.
Counsel of record for Truvia and Bright is University of California at Irvine law dean Erwin Chemerinsky. One issue in the case is what proof is needed to establish a policy or custom of failure to turn over evidence.
