Justice John Paul Stevens: Still Dissenting

Add another critic to the Supreme Court’s recent decision in Connick v. Thompson: Retired Justice Stevens on Monday night denounced his old colleagues for ruling that a former Louisiana Death Row inmate could not sue prosecutors who had concealed blood evidence that might have shown his innocence.

In that 5-4 case in late March, Justice Clarence Thomas wrote for the conservative majority and Justice Ruth Bader Ginsburg wrote for liberal dissenters. (I referred in an earlier post to Ginsburg’s passionate dissent from the bench in the case focused on prosecutors’ duty to turn over exculpatory evidence.)

On Monday night, at a New York dinner sponsored by the Equal Justice Initiative, Stevens said he thought Ginsburg had the better argument and called the facts of the Thompson case “shocking.” Stevens then criticized a separate opinion Justice Antonin Scalia had filed in Connick v. Thompson. Stevens, who stepped down last summer, said Scalia had “either overlooked or chosen to ignore the fact that bad faith, knowing violations [of the rule for turning over evidence] may be caused by improper supervision” in a prosecutor’s office, this one in New Orleans.

Stevens said “an overzealous prosecutor might … [make] it clear [to underlings] that violations of the rule — if undetected by courts — will never give rise to discipline and may even be rewarded. Prosecutors’ electoral incentives and the facts of this case demonstrate that such prosecutorial malfeasance is of more than hypothetical concern.” Stevens said judges should consider a new standard that would hold elected District Attorneys liable for flagrant violations of constitutional rights committed by their assistants.