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.

Most Popular

Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
Elections

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More
U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More