Recently Slate ran a commentary on Connick v. Thompson, declaring, "Clarence Thomas writes one of the meanest Supreme Court decisions ever." They detail at length the penchant of the Scalia-Thomas dyad for being cruel simply because they can be – or more accurately, because they feel justified that their "originalist" interpretation makes them unbiased arbiters of the law. Slate notes that Thomas and Scalia bend over backwards to excuse the actions of the state even though lower courts and the prosecutors themselves have admitted that egregious errors were made. While it is understandable to focus on the human costs of this decision, Slate overlooks a much more important fact: they're wrong. In writing this decision they completely ignored 30 years of precedent in favor of "legislating from the bench" and "judicial activism" and all the other buzzwords that, curiously enough, I did not hear any conservative Champions of the Individual Against Encroaching Powers of the State apply to the justices' actions in this case.

First, some background.

The defendant, Robert Thompson:

…was sentenced to death and spent 18 years in prison—14 of them isolated on death row—and watched as seven executions were planned for him. Several weeks before an execution scheduled for May 1999, Thompson's private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. This evidence included the fact that the main informant against him had received a reward from the victim's family, that the eyewitness identification done at the time described someone who looked nothing like him, and that a blood sample taken from the crime scene did not match Thompson's blood type.

Exculpatory evidence is called Brady material in reference to Brady v. Maryland, which holds that the state violates the constitutional rights of a defendant if it does not reveal evidence in its possession that might suggest the defendant's innocence. So if a prosecutor withholds Brady material it is in essence willingly prosecuting someone it knows, or has a valid reason to suspect, is innocent. In Mr. Thompson's case this involved collaboration among at least five prosecutors in New Orleans (despite Thomas' errant claim that the case is about "whether a municipality is liable for a single Brady violation by one of its prosecutors") and very nearly resulted in the application of the death penalty. No big deal, right?

A jury awarded Thompson $14 million in damages (one for each year he spent incarcerated) which was affirmed on appeal. At least it was until the Supreme Court came riding to the rescue of the crooked prosecutors. Scalia lays blame at the feet of a single "miscreant prosecutor" – just a bad apple! Where have we heard this argument before? – despite the fact that suppressing this evidence involved collaboration over twenty years and dozens of opportunities for the New Orleans prosecutor's office to introduce the evidence. Amazingly:

One of the reasons the truth came to light after 20 years is that Gerry Deegan, a junior assistant D.A. on the Thompson case, confessed as he lay dying of cancer that he had withheld the crime lab test results and removed a blood sample from the evidence room. The prosecutor to whom Deegan confessed said nothing about this for five years.

What's a deathbed confession among pals?

Here's the kicker. Thompson's suit was named the head of the prosecutor's office, District Attorney Harry Connick Sr. (yes, father of…). Connick did not prosecute the case personally. He was named in the suit because Thompson's attorneys allege that he failed to train his staff – that will be key in a minute – and that his office established a pattern of Brady violations under his command (which Ginsburg details in her dissent). OK? OK.

The Supreme Court established absolute prosecutorial immunity in Imbler v. Pachtman (1976) and Thomas/Scalia rely upon its precedent in their decisions. Unfortunately they overlooked a number of cases that subsequently defined the limits of immunity under Imbler. In Burns v. Reed (1991) the Court noted that Imbler affords absolute immunity for a prosecutor's conduct in "initiating a prosecution and in presenting the State's case" insofar as that conduct is "intimately associated with the judicial phase of the criminal process." The burden rests with the State to prove that any actions for which it claims immunity meet the standard (see Forrester v. White, 1988).

More recently in Mink (2007) 482 F.3d 1244 from the 10th Circuit, U.S. Court of Appeals, the Court ruled that absolute immunity does not extend to "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate (for the State)." In other words, the plain text of Imbler and Burns state that immunity covers actions "intimately associated with the judicial phase of the criminal process" and immunity explicitly does not extend to "administrative" functions such as supervising one's subordinates and training them on proper conduct and legal procedures.

In short, there's nary a word in Imbler, Burns, Mink, or any of the predecessor cases involving prosecutorial immunity about holding a unit of government blameless when its prosecutor runs an office in which people who will represent the state in criminal trials are either encouraged or allowed by neglect and lack of training/supervision to disregard the rights of defendants. Thomas and Scalia just made it up. It's all well and good that the Justices adhere to what they believe is a very literal interpretation of the law; if only they could apply that same rigor to their interpretation of the facts of the cases before them. Instead they held the law constant and twisted the facts of until they matched the description of of what is protected by immunity under Imbler and other cases. By reinventing the history of Thompson's ordeal as a single act by a single Bad Apple they were able to give a crooked prosecutor in a crooked city a free pass, in keeping with the long tradition of "originalists" giving aid and comfort to the powerful.

Activist Judging: It's Not So Bad Sometimes!tm