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The NYT Prints A Hit Piece Against a Judicial Nominee

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Is a lawyer who has ever defended a person accused of serious misconduct per se "unfit to be a judge"?  If so, everyone who has ever been a criminal defense lawyer is disqualified.  If I wrote an op-ed saying that a nominee was unfit because he once represented a murderer and sent it to the New York Times, what is the chance it would be printed?  Absolute zippo.

Yet today the NYT has an op-ed hit piece attacking Fifth Circuit nominee Kyle Duncan on the ground that he once represented Harry Connick, the former District Attorney of Orleans Parish, Louisiana, in a case arising from a Brady violation committed by attorneys in Mr. Connick's office, not Mr. Connick personally.

The article is by Laverne Thompson, the widow of John Thompson.  According to the Supreme Court (Connick v. Thompson, 563 U.S. 51, 54 (2011)):

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.
So the exculpatory evidence didn't relate to innocence of the murder for which Thompson was sent to death row but only a prior case, conviction of which caused him not to testify in the murder case.  That's pretty far removed, but you won't find that distinction in the article.  Even so, it's still a violation.  Ms. Thompson writes:

After his release, J.T. considered the long list of innocent men sent to prison by prosecutors in that same office who had withheld evidence. It was clear to him, as it is to any impartial observer, that the district attorney's office for New Orleans has a track record of failing to turn over favorable evidence to defendants.
That is a "pattern or practice" claim, and there is plenty of ground to believe that the office was indeed regularly in violation of Brady during Mr. Connick's tenure.  That has nothing whatever to do with Kyle Duncan, though.  For better or worse, the "pattern or practice" claim was rejected by the jury (563 U.S., at 57) and was not an issue on appeal.

So that left the "failure to train" claim, requiring "deliberate indifference," but the two are related.  The pattern claim that the jury rejected would have been the best evidence that a major training effort was required.  According to the Supreme Court (at 58):

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 Fifth Circuit took the case en banc but divided evenly, so the panel decision stood.  Then the Supreme Court took up the case.  That was where Kyle Duncan entered the case as Appellate Chief for the Louisiana Attorney General.

The Supreme Court noted at page 62:  "A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train," citing a 1997 precedent.  So the lower court finding that the plaintiff had not shown a pattern was a big problem for the plaintiff's side. 

Issues get narrowed as cases move up the judicial ladder, and the "facts" that higher courts apply the law to in order to reach the result are sometimes not the truth.  That may be because of a deficiency in the presentation of evidence in the trial court, an erroneous finding by the factfinder, or in cases where summary judgment has been granted without a trial because the allegations of the party who wants to go to trial are assumed to be true for that limited purpose.

Ms. Thompson alleges that Mr. Duncan "devised the argument that, although the district attorney had withheld evidence in many cases involving innocent men, there was no need to train lawyers in his office because they would have learned about their obligation in law school."  But the holding that no pattern had been shown was already baked in the cake before Mr. Duncan ever entered the case.  Further, the point that lawyers are generally trained and responsible to know about Brady appears in the Court of Appeals en banc dissent, written before Mr. Duncan ever entered the case.  (578 F.3d 293, 304-305.)

Personally, I would not have taken this case if I had a choice, and I did choose not to file an amicus brief in support of Mr. Connick.  However, Mr. Duncan worked for the government at the time, and government lawyers typically don't get to choose their cases.  And doesn't every client deserve a lawyer who will make the best argument he can for the client's position?  Ms. Thompson gives us this curious passage:

Mr. Duncan, I'm sure, represented his client -- J.T. would always say that everyone deserves a lawyer. But the positions Mr. Duncan argued and won are not the positions of a man who can suddenly become a fair referee in the dozens of similar cases that would come before him as a judge.
Where would we draw that line?  Again, consider a criminal defense lawyer being considered for the bench.  Criminal defense lawyers often make arguments that many people consider extreme.  So, too, do lawyers for organizations such as the ACLU.  When the Democrats get the White House back, do we consider all such lawyers disqualified?

This article is a spiteful piece of misdirected anger by someone who is justifiably angry, but not at the chosen target.  It is regrettable that the Times chose to print it.

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Par for the course for the Times.

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