On Wednesday, SCOTUS hears arguments in a case from California that could alter the type of immunity protecting supervising prosecutors from liability for decisions made decades ago by OTHER prosecutors. For details, click here.

So, do you think training is a core prosecutorial duty that should have absolute immunity? Seems to me that the whole reason this website exists is to educate and, occasionally, to amuse.

Anyone remember respondeat superior?

I still don't see how the subsequent supervisor could be accountable. I could see how the out-going one could be in trouble for not disclosing Brady material (like an agreement for a deal in exchange for testimony) to defense or to the next prosecutor....but how could the prosecutor who knew nothing be in trouble because of the last one's behavior?

So, I just changed jobs. What could I possibly do to keep that info from falling through the cracks? I see the point in not allowing prosecutors to hide the ball by sending in the next platoon--but telling me that I could be in trouble for things that someone I've never even met doesn't tell me about or leave in the file for me won't make me disclose info I don't have....or even know the existence of. Sounds unbelievable that it would even be considered--suing the person who can't possibly fix the situation.

There's still a remedy--the conviction would be overturned, maybe the evidence would be suppressed.

The prior supervisor (DA) is being sued, not the current supervisor (DA). But the money will come from the current budget, so not sure that it all makes much difference.

For me, it seems a stretch to impose civil liability against a supervisor for failing to train a licensed attorney to meet his ethical and constitutional obligation to disclose Brady material. Shouldn't we also, then, sue the law school and state bar that gave him a license? What about his parents, who clearly failed to teach him personal responsibility?

How could you get through law school without learning that due process requires a prosecutor to disclose exculpatory evidence? OK, that lesson having been delivered, isn't it the responsibility of the prosecutor handling the case to carry out that duty?

And, if training now becomes some civil rights violation, how many times a year does an office have to repeat the obvious to overcome a claim? Should TDCAA buy insurance to protect itself against claims that it failed to train properly while serving as an agent of its member prosecutors? Where does this end?

Everyone magically knows every law in every jurisdiction, including all caselaw ... and everyone except the courts of appeals automatically knows how each law applies to every situation ... except after the appeals courts makes a decision... then they knew it all along and any previous decision of the court was in error... Or something like that. I'm unclear on this concept.

For a transcript of the arguments, click here.

Very interesting. To have a constitutional issue, it has to be a trial issue. And if it's a trial issue, it's immune. Tough to get around that argument. The transcript sort of made me miss law school!

I love the references to "backroom" happenings. Makes me think in the back of every prosecutor's office there is a dark, smoky room with a high stakes poker game carrying on at all hours.

It's also interesting that attorneys who probably work in offices with multiple administrative staff for each attorney talk about how simple information gathering and tracking is for prosecutors. But I do also think that begs the argument that as public servants we have to find a way to do the things that need to be done to ensure fairness, and can't use understaffed, overworked as an argument or the system as a whole looks pretty tilted. I doubt suing the office 30 years after that DA is gone is going to help the current office buy a new computer system, either!

While some of my fellow civil lawyers review the transcript I would point out that Chief Justice Roberts and Justice Souter seem to disagree with the waiver of absolute immunity by the manner of questioning the attorneys. I realize that such an analysis can sometimes lead us astray but Justice Souter's hypothetical in questioning appellee's counsel concluded with the admission by the attorney that immunity would be granted if the prosecutor had a policy to not follow Giglio (sorry I slept thru that one in law school, spelled it wrong or more likely, it was decided after I went to the civil side. Lack of training, I suppose.)
But if the Chief Justice Roberts and Justice Souter are on the same side on this one, I can count to five pretty fast.

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I love the references to "backroom" happenings. Makes me think in the back of every prosecutor's office there is a dark, smoky room with a high stakes poker game carrying on at all hours.

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What?! You mean you don't have one of those?! Isn't it required!

If there is, I have not yet been invited.