Argument recap: liability for failure to train on Brady?

At Wednesday’s oral argument in Connick v. Thompson, the Court seemed dissatisfied with efforts by both advocates to articulate a training policy that could prevent single-incident liability for District Attorney’s offices.  [You can read my preview of the case here.]

Representing the Orleans Parish District Attorney’s Office, Stuart K. Duncan emphasized that in holding the DA’s Office liable for this single violation of Brady, the district court had created a “flawed exemption” from the rule requiring a history of violations for the imposition of failure-to-train liability.  Thompson’s comparison of his case to the single-incident liability hypothesized in Canton, Duncan argued, is inapposite; because prosecutors are trained professionals, it is inappropriate to compare a need for Brady training to a police department’s duty to train its police officers on the use of deadly force.  But Justices Ginsburg and Breyer challenged the premise that the violations at issue in Thompson’s case could even qualify as a “single incident,” noting that multiple attorneys may have been involved in suppressing multiple pieces of evidence.

Justice Kagan then pressed Duncan to provide an example of a situation in which a DA’s Office might be liable for failure to train on Brady based on a single incident.  Justice Kagan first hypothesized a situation in which random assignments sometimes place rookie prosecutors on complex cases, there is no training on Brady, there is a policy of only turning over what is legally required, and turning over extra information is punished within the office.  Pressed from several directions to clarify his position, Duncan proposed a narrow rule that single-violation Brady liability is impossible unless the DA’s Office either fails to provide training tools without which prosecutors cannot fulfill their constitutional obligations or has an explicit policy which flouts Brady.

Justice Scalia came to Duncan’s aid, emphasizing the difference in the need to train police officers on guns and the need to train prosecutors on Brady.  A significant portion of Duncan’s argument centered on a discussion with Justice Breyer over the extent to which the DA’s Office contests the instructions given to the jury at trial regarding single-incident liability; ultimately, Duncan explained that his quarrel was not with the specific jury instruction, but rather the legal theory behind it.

J. Gordon Cooney, arguing on behalf of James Thompson, accused the DA’s Office of seeking to re-litigate the factual issue of whether a reasonable jury could have found that it had an insufficient Brady training policy.  When Cooney attacked the DA’s Office proposed per se rule, Justice Scalia countered by emphasizing the narrow application of that rule solely to Brady cases.

Justice Alito was the main player throughout Cooney’s argument, constantly pressing Cooney to articulate precisely what training the DA’s Office should have implemented.  Justice Alito, joined by Chief Justice Roberts and Justice Scalia, seemed unsatisfied with Cooney’s eventual answer that training should have included a statement of the importance of Brady and instruction on evaluating whether certain pieces of evidence must be produced.  Though a series of hypotheticals, several Justices demonstrated their doubt that any amount of training could have prevented the violation.  Justice Alito expressed his concern that Cooney’s rule would require prosecutors to test every available piece of evidence for DNA to determine whether it might be exculpatory, and Chief Justice Roberts warned that Cooney would require very specific training on every possible constitutional violation a prosecutor might commit.  Cooney answered that the rule is fundamentally more circumscribed, arguing that Brady violations are unique in that they are made in private with little chance of being discovered.  Justice Ginsburg added that with a Miranda or a seizure violation, for example, it is known what was said or illegally seized.

Finally, Justices Kennedy and Alito expressed concern about the causation requirement.  In their view, if the violation was made knowingly, then it is difficult to argue that it was caused by a failure to train by the DA’s Office.  Cooney countered that the jury had in fact found causation.  Cooney further argued that the Brady violation was not intentional because the prosecutors did not know that the blood tested did not match Thompson’s; rather, Cooney contended, the prosecutors’ obligation was not to perform further tests, but simply to make the existence of the blood evidence available to Thompson’s attorneys to pursue the possible discrepancy.