Hi there, could you help me with the facts and issues of the following cases:

Connick, District Attorney v. Thompson

563 U.S. 51 (2011)

JUSTICE THOMAS delivered the opinion of the Court. The Orleans Parish District Attorney's Office now concedes that, in prosecut- ing 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).... One month before Thompson's scheduled execu- tion, his investigator discovered the undisclosed evidence from his armed robbery ial. The reviewing court determined that the evidence was exculpatory, and both of Thompson's convictions [murder and robbery] 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 robbery case. The jury awarded Thompson $14 million, and the Court of Appeals for the Fifth Circuit affirmed.... We granted certiorari. [In 1985,] a crime scene technician took from one of the victims' pants a swatch of fabric stained with the robber's blood.... Two days before the trial, assistant dis- trict 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.... 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 evi- dence to the district attorney's office, which, in turn, moved to stay the execution. and vacate Thompson's conviction [s].... Thompson then brought this action against the district attorney's office, Con- nick, Williams, and others, alleging that their conduct caused him to be wrong- fully 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. 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. .... 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- for the district attorney's office, was deliberately indifferent to the need to train the train theory, he bore the burden of proving both (1) that Connick, the policymaker 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 Thomp- son 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. [The opinion then emphasizes Thompson's reliance on a single occurrence of a Brady violation.] 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.... He did not do so. JUSTICE GINSBURG, dissenting. The Court holds that the Orleans Parrish District Attorney's 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 compensa- tion to Thompson, however, points distinctly away from the Court's assessment. As the trial record in the $1983 action reveals, the conceded, long-concealed prosecu- torial transgressions were neither isolated nor atypical. From the top down, the evidence showed, members of the District Attorney's Office, including the District Attorney 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 pros- ecuting him for armed robbery and murder hid from the defense and the court excul- patory 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 Parrish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney's Office bears responsibility under $1983. Abundant supported the jury's finding that additional Brady training s obviously necessary to ensure that Brady violations would not occur: (1) Con- evidence was nick, 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.... Connick acknowledged that he had 'stopped reading law books... and looking at opinions" when he was first elected District Attorney in 1974. .... 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 was obvious to Connick. Indeed, he so testified. Third, Connick's cava- monitoring lier approach to his staff's knowledge and observation of Brady requirements con- tributed to a culture of inattention to Brady in Orleans Parrish. ... 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," [] "blinks reality" and is belied by the facts of this case.... Notes Notably, one of the pillars supporting Justice Thomas's opinion in Thompson is the distinct ethical training that all lawyers receive. Thomas noted that all lawyers receive training in professional responsibility and ethics-thus supporting the conclusion that Connick was not liable for a failure to train the lawyers at the Dis- trict Attorney's office: Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment.... In addition, attorneys in all jurisdictions must satisfy charac- ter and fitness standards to receive a law license and are personally subject to an ethical regime designed to reinforce the profession's standards.

Justice Ginsburg thinks this suggestion "blinks reality." Do you think the "train- ing you receive by reading this problem sufficiently informs you of what your obli- gation as a prosecutor would be to disclose evidence? Note also that the ethical issue in Thompson was fairly straight-forward-clearly the evidence negated Thompson's guilt. What if the evidence were not so clear-cut? Do you feel that your "training" in the course in which you are reading this text-prepares you sufficiently so that no additional training is necessary? Is there hope, then, for greater prosecutorial accountability than that shown in Connick? The works of law professors Bruce Green and the late Fred Zacharias, sev- eral of which are cited here, have long focused on fashioning reforms to increase that accountability. On the civil side, suits for damages haven't quite reached the "impos- sible" level. In McGhee v. Pottawattamie County, Iowa, 547 F.3d 922 (8th Cir. 2007), two men wrongfully sentenced to life imprisonment filed civil rights suits against police officers and prosecutors for failing to reveal Brady evidence about other sus- pects and then fabricating and then permitting perjurious testimony. The Court of Appeal allowed most of the plaintiffs' causes of actions to go forward to trial. The Supreme Court granted certiorari but the case was settled before it was argued. And in New York, a man accused of serious sexual offenses who was incarcer- ated without bail at Rikers' Island successfully maintained a cause of action against famed sex-crimes prosecutor Linda Fairstein for the unfair pre-trial publicity he received, including statements comparing him to Jeffrey Dahmer and claiming, "this was not the first time he did something like this." Because Fairstein's actions were outside the trial arena, they were not subject to absolute immunity.50 8. And If a Lawyer Does Follow the Rules ... What happens when a prosecutor risks not moving forward with a prosecution in an effort to do "the right thing"? Will there be repercussions in the political arena? Can there be retaliation from within the prosecutor's own office? Consider the closely-divided Supreme Court case below involving a supervising deputy dis- trict attorney in Los Angeles.

Garcetti v. Ceballos

547 U.S. 410 (2006)

Justice Kennedy delivered the opinion of the Court.

In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion challenge, the warrant, but he also wanted Ceballos to review the to traverse, or case.... After examining the affidavit and visiting the location it described, Cebal- los determined the affidavit contained serious misrepresentations.... He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a disposition memorandum. The memo explained Cebal- los's concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for his review.... Despite Ceballos's concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant. Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions.... Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. 1979, 42 U. S. C. 1983. He alleged petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo of March 2. Petitioners responded that ... Ceballos's memo was not protected speech under the First Amendment. Petitioners moved for summary judgment, and the District Court granted their motion. Noting that Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled to First Amendment protection for the memo's contents.... The Court of Appeals for the Ninth Circuit reversed, holding that "Ceballos's allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment." ... We granted certiorari, 543 U. S. 1186 (2005), and we now reverse. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the gen- eral public. This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader dis- cretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations. The controlling factor in Ceballos's case is that his expressions were made pursu- ant to his duties as a calendar deputy..... That consideration-the fact that Cebal- los spoke as a prosecutor fulfilling a responsibility to advise his supervisor about

how best to proceed with a pending case-distinguishes Ceballos's case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Ceballos did not act as a citizen when he went about conducting his daily profes sional activities, such as supervising attorneys, investigating charges, and prepar- ing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case.... Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission. Cebal- los's memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff's department. If Ceballos's superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action. JUSTICE BREYER, dissenting. Like the majority, I understand the need to "affor[d] government employers sufficient discretion to manage their operations." And I agree that the Constitu- tion does not seek to "displac[e]... managerial discretion by judicial supervision." Nonetheless, there may well be circumstances with special demand for constitu- tional protection of the speech at issue, where governmental justifications may be limited, and where administrable standards seem readily available to the point where the majority's fears of department management by lawsuit are misplaced.... This is such a case. The respondent, a government lawyer, complained of retalia- tion, in part, on the basis of speech contained in his disposition memorandum that he says fell within the scope of his obligations under Brady v. Maryland, 373 U. S. 83 (1963). The facts present two special circumstances that together justify First Amendment review. First, the speech at issue is professional speech-the speech of a lawyer. Such speech is subject to independent regulation by canons of the profession. Those can- ons provide an obligation to speak in certain instances. And where that is so, the government's own interest in forbidding that speech is diminished.... Second, the Constitution itself here imposes speech obligations upon the gov- ernment's professional employee. A prosecutor has a constitutional obligation to learn of, to preserve, and to communicate with the defense about exculpatory and impeachment evidence in the government's possession. Kyles v. Whitley, 514 U. S. 419, 437 (1995); Brady, supra.... Where professional and special constitutional obligations are both present, the need to protect the employee's speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards

are quite likely available. Hence, I would find that the Constitution mandates spe- cial protection of employee speech in such circumstances. Notes Review ABA Standard 3-1.12 from section 1 in this problem. Did Ceballos adhere to the course of conduct described in the standard? Was the investigation handled in independent and conflict-free manner? Does it make sense to treat a government lawyer-indeed, a prosecutor-the same as any government employee for free speech purposes? Or does Justice Breyer's reliance on not only the position of "lawyer" but of "prosecutor," and his multiple references to the Brady case, make more sense? If a prosecutor is not afforded the free speech Breyer suggests, would that lawyer be able to fulfill all the duties articu- lated in Section 1 above? Would it affect the actions of the DAs in the problem? Was it surprising to you that only Justice Breyer saw fit to mention Ceballos's role as prosecutor? Is it possible that eight other Supreme Court justices simply missed the issue? One critic, calling Garcetti the "worst" modern Supreme Court case, said that the "majority relegated Deputy DA Ceballos to the role of a mere functionary on an assembly line....