Seriously, what is wrong with these men that they have grown up to be such callous and hateful individuals. Personally, I find it especially troubling since they are supposedly all into being Catholic (as mentioned before, one of Scalia’s many sons, baptized my son David). Anyway, hard to read the facts of the case in Connick v. Thompson and Dahlia Lithwick’s takedown of Thomas’ majority opinion and Scalia’s concurrence, and conclude anything but these are some mean, entirely unempathatic human beings. Of course, the law is about the law, not empathy, but these two seem ever ready to forget the fact that most such matters are still highly subjective and that the law is dealing with human beings. The decision if the Connick case is simply morally repugnant, and one I suspect I will be ranting about for years. Tough to do a short summary, so I’ll just copy some of the major details from Lithwick:
In 1985, John Thompson was convicted of murder in Louisiana. Having already been convicted in a separate armed robbery case, he opted not to testify on his own behalf in his murder trial. He was sentenced to death and spent 18 years in prison—14 of them isolated on death row—and watched as seven executions were planned for him. Several weeks before an execution scheduled for May 1999, Thompson’s private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. This evidence included the fact that the main informant against him had received a reward from the victim’s family, that the eyewitness identification done at the time described someone who looked nothing like him, and that a blood sample taken from the crime scene did not match Thompson’s blood type…
Both of Thompson’s convictions were overturned. When he was retried on the murder charges, a jury acquitted him after 35 minutes. He sued the former Louisiana district attorney for Orleans Parish, Harry Connick Sr. (yes, his dad) for failing to train his prosecutors about their legal obligation to turn over exculpatory evidence to the defense. A jury awarded Thompson $14 million for this civil rights violation, one for every year he spent wrongfully incarcerated. The district court judge added another $1 million in attorneys’ fees. A panel of the 5th Circuit Court of Appeals upheld the verdict. An equally divided 5th Circuit, sitting en banc, affirmed again…
But this week, writing on behalf of the five conservatives on the Supreme Court and in his first majority opinion of the term, Justice Clarence Thomas tossed out the verdict, finding that the district attorney can’t be responsible for the single act of a lone prosecutor.
Suffice it to say that Lithwick emphatically makes the case that in no way was this the work of a lone prosecutor and it is simply a willful mis-reading of the facts to suggest otherwise.
Beyond that, there is no suggestion in either opinion that this is a hard question or a close call or even a hint of regret at their conclusion. There is only certainty that the jury, the appeals court, and above all Ginsburg got it completely wrong in believing that someone should be held responsible for the outrages suffered by John Thompson. If there is empathy for anyone in evidence here, it’s for the overworked and overzealous district attorneys.
The whole article is terrific and you really should read it (I’m going to watch my blog stats for click throughs and hold it against you if you don’t), but damn if this isn’t one zinger of a conclusion:
I don’t think that the failure at the court is one of empathy. I don’t ask that Thomas or Scalia shed a tear for an innocent man who almost went to his death because of deceptive prosecutors. And, frankly, Ginsburg’s dissent—while powerful—is no less Vulcan in tone than their opinions. But this case is of a piece with prior decisions in which Thomas and Scalia have staked out positions that revel in the hyper-technical and deliberately callous. It was, after all, Scalia who wrote in 2009 that “this court has neverheld that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” It was Thomas who wrote that a prisoner who was slammed to a concrete floor and punched and kicked by a guard after asking for a grievance form had no constitutional claim.
The law awards no extra points for being pitiless and scornful. There is rarely a reason to be pitiless and scornful, certainly in a case of an innocent man who was nearly executed. It leads one to wonder whether Thomas and Scalia sometimes are just because they can be.