The U.S. Supreme Court just granted cert in
Van De Kamp v. Goldstein from the Ninth Cicuit. The quote below is from Scotus Blog. The post is at SCOTUSBLOG

The discussion of the case is in the second story.

"The new case on prosecutorial immunity (Van De Kamp, et al., v. Goldstein, 07-854) does not involve line prosecutors. Rather, it tests whether supervisory officials in the chain of command on prosecution may be sued for damages for failure to develop policies to ensure that evidence favorable to the defense is shared with defense counsel. Basicially, the appeal by two former Los Angeles officials � a district attorney and his chief deputy � seeks immunity for all actions within a prosecution team that relate to the obligations imposed by the 1963 Supreme Court decision in Brady v. Maryland."

Janette A

This should catch the attention of prosecutors who act in a supervisory capacity. Plaintiff sued supervisors in the DA's office for failing to train properly on Brady, bypassing the barrier of absolute immunity be claiming it was an administrative function, not a prosecutorial function.

I wonder if TDCAA or such training organizations could be brought in by the defense, especially if the supervisor used TDCAA training (e.g., baby prosecutor school) to teach on the issue.

[This message was edited by JB on 04-14-08 at .]

There goes any chance for me to sleep soundly for the next five or six years.

Hey, Erik, turn it into a positive. Advertise: think you might be sued? Having problems in court? Consider having TDCAA handle your ethics training. We guarantee our materials will keep you out of court.

Is anyone interested in doing an amicus on this, or do you think California is going to adequately represent our interests?

The lawyers associated with the case for the prosecutors are Steven Renick (for the prosecutors) and W. Scott Thorpe (for the California District Attorneys Association). Here's Renick's webpage:

Renick Vitae

Here's Thorpe's:

CDAA site

There is a lot of mischief possible from this case. I don't think we can count on much support from the conservative wing of the Court: Scalia and Thomas (both originalists)don't think much of prosecutorial immunity to begin with (read Scalia's concurrence in Kalina v. Fletcher, 522 U.S. 118) and I don't know whether Roberts and Alito have staked out a position on the scope of prosecutorial immunity yet.

Needless to say, if the Court decides to read absolute immunity narrowly, it's going to make management of a prosecutor's office a lot less attractive.

quote:

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Needless to say, if the Court decides to read absolute immunity narrowly, it's going to make management of a prosecutor's office a lot less attractive.

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Or it is going to mean that people need to do a lot better job than what they have been doing.

Someone will have to excuse me for not understanding how administering a prosecutorial function is any different from performing a prosecutorial function. You know less about what is going on so that means you are more responsible? Of course, Brady is not all that difficult to comply with in most cases, so I guess the brass can continue to sleep reasonably well.

Section 1983 lawsuits do not allow supervisory liability based on respondeat superior. Instead, there must be direct involvement (by way of acts or conscious omissions) on the part of the supervisory defendant. Where failure to train is the theory of recovery, unless the plaintiff can point to a supervisor's explicit decision to forego Brady training, the plaintiff will be required to make a showing of the supervisor's deliberate indifference to the constitutional rights of those citizens with whom he/she deals. Negligence is not enough. Demonstrating deliberate indifference is much more difficult than the old, familiar "he should've known" standard of negligence. In practical terms, courts generally reject claims based on isolated incidents. Instead, demonstrating deliberate indifference (in the absence of a specific directive from the supervisor to violate Brady) generally requires the plaintiff to show a pattern of events demonstrating that the supervisor's training regimen bears the easily predictable fruit of constitutional violations.

That doesn't mean this decision won't be significant, or that it isn't of significant concern. The Supremes often have described absolute immunity (as prosecutorial immunity is) as "strong medicine," since it short circuits a federal suit at the get-go. Admittedly, the argument that a lax DA/CA should not get a free pass has some visceral appeal. But it implicitly assumes there isn't another remedy for the plaintiff's alleged constitutional injury. Which begs the question: what function, then, does habeas serve? Moreover, Texas prosecutors already face the potential for professional discipline if they fail to disclose Brady material, as does the offending lawyer's supervisor. See Tex. Disciplinary R. Prof'l Conduct 3.09(d), 5.01. The argument also assumes, as a starting point, that many -- if not most -- prosecutors violate Brady, and that their supervisors know they do it. Is there empirical evidence to support that generalization? Ultimately, this is an attempt to make an end-run around the policy that underlies prosecutorial immunity. The idea is not to protect individual prosecutors; it is to accommodate the diligent performance of their public duties, undeterred by the threat of civil liability from a uniformly disgruntled pool of opposing litigants. Saying that a plaintiff can't sue the lawyer who prosecuted him/her, but can sue the lawyer's boss (subject to the less certain defense of qualified immunity) is troubling, and logically incongruent unless one advocates complete abolition of prosecutorial immunity. If this is to be the remedy for a perceived problem, the predictable side effects of that remedy will be supervisory micromanagement of line prosecutors and/or Milquetoast prosecution. The public policy value of either alternative is dubious.

You must've taken your Ginsana this morning.

The Right Honorable Mr. Brumley does an excellent job of pointing out the weaknesses in the 9th Circuit decision to deny absolute immunity to prosecutors involved in supervising other prosecutors. And, knowing the history of reversals by the SCOTUS of Ninth Circuit opinions, it would seem that the case is ripe for another reversal.

SCOTUS, I think, would have a hard time articulating, in constitutional terms, what is "administrative" and what is "prosecutorial."

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Originally posted by David Newell:
You must've taken your Ginsana this morning.

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With anyone else, I'd say that they worked up their answer to that question by toiling all weekend. With Brumley, it's probably coming off the top of his head, and is most likely absolutely correct.

What's your IQ, Brumley? 1,000?

I have repeatedly noted that Mr. Brumley is, in fact, The Man. But that post was extra-smart, and I've run out of superlatives. (And I figured it'd make him laugh.)

Perhaps it would've been more apt for me to say, "I'd understand that, if I'd taken my Ginsana this morning."

If only my IQ was inversely proportional to my bank account, I'd be ... like, really smart. I tried taking ginsana once, but wound up taking ginger instead. All I got from it was an upset stomach and really fresh breath.

As it is, I used up everything I had on the former post. So I puncutate it with the only outro stinger I can think of to sum up my feeling: "Be excellent to each other, and ... PARTY ON, DUDES!"

Dust . . . Wind . . . Dude.

"we conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here."


http://www.supremecourtus.gov/opinions/08pdf/07-854.pdf

Sweet.

It is remarkable that the opinion is Unanimous and reversing, yet again, the 9th Circuit. When all 9 SCOTUS judges think the liberal court of appeals is wrong, they are really, really wrong.

And TDCAA frankly should be pretty happy with the decision. If SCOTUS had said that unhappy criminal defendants could sue supervisors for negligent training decisions, it wouldn't be much of a reach to also sue agencies that contract to hold such training (e.g. TDCAA and NCDA).

Oral argument before the Supremes signaled that both wings of the Court had issue with this line of attack on absolute immunity. Perhaps the Supremes are looking down the way to Gitmo and signalling all that entry into this briar patch is prohibited.