These prosecutors, with the help of then-Governor Rick Perry, who refused to grant him clemency, and the board of pardons, which refused to consider new evidence, sent Willingham to his death. Despite years of evidence of an epidemic of prosecutorial misconduct, there is almost no way for victims of such injustice to seek redress.
Indeed, when people try to seek justice in civil suits against prosecutors who have violated their rights, legal barriers even more formidable than qualified immunity prevent them from doing so. Prosecutors are absolutely immune from liability, which means that they cannot be sued for their decisions as prosecutors, no matter how outrageous their conduct. The Supreme Court has held that absolute immunity protects prosecutors who knowingly used false testimony and suppressed evidence in a murder trial.
Absolute immunity prevents plaintiffs from seeking justice from individual prosecutors. But, thanks to another Supreme Court precedent, the courts have also failed as an avenue for systemic challenges to prosecutorial misbehavior. And to prove these widespread failures, the plaintiff must show that policymakers knew of virtually identical past misconduct and failed to take proper steps to prevent similar conduct from recurring. It is worth noting that there are some disturbing parallels between these standards and those applying to qualified immunity.
Qualified immunity protects individual police officers from liability unless a plaintiff can find a decision in which the Supreme Court or a court of appeal found virtually identical conduct to be unconstitutional. Monell protects governments from liability unless the plaintiff can show that policymakers there knew of virtually identical past misconduct and failed to take proper steps to prevent similar conduct from recurring through better supervision, training, and discipline.
In current discussions about police reform, the dual challenges of qualified immunity and Monell have spurred calls to end qualified immunity, and have also led some to suggest that the hurdles necessary to hold local government liable for systemic police misconduct be eliminated. In principle, municipal liability could be a very useful way to change the culture of impunity prosecutors enjoy. Among the undisclosed pieces of evidence was a blood sample from the crime scene suggesting that the perpetrator had a different blood type than Thompson.
But the prosecutors did not reveal this information to Thompson or his legal team. Thompson was found not guilty after a retrial. He then brought a lawsuit against the prosecutors for his years of wrongful imprisonment. We should not simply leave it up to prosecutors to oversee their own. The courts have an important—if incomplete—role to play. Thompson could not bring claims directly against the assistant district attorneys who committed the Brady violations because of their absolute immunity.
But the Supreme Court reversed that decision, ruling 5—4 that those prior violations would not have put Harry Connick, Sr.
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