Bench Memos

Law & the Courts

NYT Op-Ed Smears CA5 Nominee Kyle Duncan

Laverne Thompson, the author of a New York Times op-ed attacking Fifth Circuit nominee Kyle Duncan, is the victim of a grievous injustice. Her husband John Thompson was convicted of armed robbery and murder, and spent eighteen years in prison, including fourteen years on death row, as a result of a prosecutor’s deliberate suppression of exculpatory evidence. But the horrible suffering that she and her husband endured does not remotely justify her ill-founded and bizarre attack on Duncan.

Duncan argued and won a Supreme Court ruling, Connick v. Thompson (2011), holding that the district attorney’s office that employed the rogue prosecutor could not be held liable under 42 U.S.C. § 1983 for failure to train based on a single violation of the Brady rule (which requires prosecutors to disclose exculpatory evidence to defense counsel). Far from condoning the actions of the rogue prosecutor, Duncan repeatedly emphasized that Mr. Thompson had been “grievously injured” by the “flagrant” Brady violation and that he deserved the maximum compensation available under the state’s wrongful-conviction statute.

Mr. Thompson’s federal civil-rights case against the district atttorney’s office involved very different legal issues. Under the settled law of municipal liability under section 1983, the district attorney’s office was not vicariously liable for the wrongdoing of its employees. The theory of liability that Mr. Thompson relied on was instead that the office had failed to train its prosecutors adequately and that that failure had caused his injury. But, as the Supreme Court explained in overturning the jury verdict in favor of Mr. Thompson, a claim based on failure to train must typically be proven by a “pattern of similar constitutional violations” by employees that is sufficient to put the office on notice that its training regimen is deficient. Duncan argued, and a five-justice majority agreed, that Mr. Thompson had failed to establish a “pattern of similar Brady violations” that would have placed the office on notice that it should remedy it training practices.

It is difficult to discern Mrs. Thompson’s objection to Duncan’s arguments, beyond the fact (which ought to accrue to his credit) that those arguments prevailed. The one specific charge she makes is that he “devised the argument that, although the district attorney had withheld evidence in many cases involving innocent men, there was no need to train lawyers in his office because they would have learned about their obligation in law school.” I see nothing in his brief that can fairly be reduced to that argument.

The ABA rated Kyle Duncan “well qualified” for the Fifth Circuit. (A “substantial majority” of the committee rated him “well qualified,” and a minority rated him “qualified.” As the ABA explains, “the majority rating is the official rating.”) Opponents of his nomination had two months before his hearing to try to make their case against him and another six weeks before the Senate Judiciary Committee favorably reported his nomination to the Senate floor. The sort of desperate last-ditch smearing that Mrs. Thompson has unfortunately been persuaded to commit is as ugly as it is baseless.


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