# Defense attorney does his/her best even if aware client is guilty - is there a similar vow for DA's? **URL:** \ **Category:** Factual Questions\ **Created:** [July 6, 2011, 2:13am UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978 "2011-07-06T02:13:47Z")\ **Posts on this page:** 10\ **Page:** 2
**Author:** ![AntiCoyote](https://avatars.discourse-cdn.com/v4/letter/a/a587f6/32.png) [@AntiCoyote](https://boards.straightdope.com/u/AntiCoyote)\ **Post date:** [July 7, 2011, 9:24pm UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/21 "2011-07-07T21:24:58Z")
> [@anson2995](#): > > I think that’s an awfully cynical view, and one not supported by facts. The exceptions prove the rule. I also agree with this, I’ve seen many cases working with ex-cons where the DA simply was out to convict. Notice how quickly when the DA loses a case he/she will fall back on, the police didn’t give them adequate evidence to convict. TV says our trial system is about finding the truth and justice. No a DA will say, his job is to convict, it’s the police to find the correct suspect. And once the police do this, that is enough for them to pull out all stops to convict. Of course the cops take the reverse position, we just gather fact and let the jury decide. A vicious circle, where no one wants to accept responsibility for ruined lives. Of course working with the cons I have, most are guilty of far more than they are ever convicted of. This still doesn’t mean DAs aren’t seeing their jobs as getting convicitons ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 7, 2011, 10:43pm UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/22 "2011-07-07T22:43:41Z")
> [@Jas09](#): > > I don’t disagree with your evaluation of _Youngblood_. It found that convictions shouldn’t be thrown out just because some potentially exculpatory evidence wasn’t provided to the defense unless the cops were shown to have acted in bad faith. > > My comment re: Scalia was that he used _Youngblood_ as his cite in the _Thompson_ defense, in which SCOTUS overturned an award to a wrongly-convicted man (who came within weeks of being executed for a crime he didn’t commit). In the _Thompson_ case the prosecutors did in fact know of evidence that was exculpatory and didn’t reveal it - Scalia seems to state that the _Youngblood_ ruling shows that they are not required to do so. > > Do you have an opinion on _Connick v. Thompson_? Perhaps this is outside the scope of this thread, but it does touch on prosecutorial responsibility (or, at least, liability). _Connick v. Thompson_ stands for the proposition that when an individual DA goes off the rails in one case (as opposed to an on-going pattern) the entire DA’s office is not liable. I have no problem with that decision, because the theory for recovery against the whole office was negligent training and supervision. But that’s absurd – the prosecutor in question knew damn well his actions were illegal. More training would not have helped. In fact, Scalia’s comment comes in a discussion of that very idea: > [@](#): > > Perhaps a better question to ask is what legally accurate training would have prevented it. The dissent’s suggestion is to instruct prosecutors to ignore the portion of Brady limiting prosecutors’ disclosure obligations to evidence that is “favorable to an accused,” 373 U. S., at 87. Instead, the dissent proposes that "Connick could have communicated to Orleans Parish prosecutors, in no uncertain terms, that, ‘\*f you have physical evidence that, if tested, can establish the innocence of the person who is charged, you have to turn it over.’ " Post, at 20, n. 13 (quoting Tr. of Oral Arg. 34). Though labeled a training suggestion, the dissent’s proposal is better described as a sub silentio expansion of the substantive law of Brady. If any of our cases establishes such an obligation, I have never read it, and the dissent does not cite it. He then goes on with the paragraph you quoted above, quoted here in its entirety: > [@](#): > > Since Thompson’s trial, however, we have decided a case that appears to say just the opposite of the training the dissent would require: In Arizona v. Youngblood, 488 U. S. 51, 58 (1988), we held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” We acknowledged that “Brady … makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence,” but concluded that “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id., at 57. Perhaps one day we will recognize a distinction between good-faith failures to preserve from destruction evidence whose inculpatory or exculpatory character is unknown, and good-faith failures to turn such evidence over to the defense. But until we do so, a failure to train prosecutors to observe that distinction cannot constitute deliberate indifference. He is not saying he is hostile to the idea – he is simply (and correctly) stating that the state of the law at the time of Thompson’s trial was Brady… not Brady-Plus. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 7, 2011, 10:46pm UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/23 "2011-07-07T22:46:09Z")
> [@AntiCoyote](#): > > Notice how quickly when the DA loses a case he/she will fall back on, the police didn’t give them adequate evidence to convict. Yeah, that happens all the time, those filthy DA’s! I remember the last time it happened, in fact, clear as day. It was…uh… it was… Um, when was that again? ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [July 7, 2011, 10:55pm UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/24 "2011-07-07T22:55:05Z")
FYI, the Connick in this case is the father of noted pianist/singer Harry Connick, Jr. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [July 7, 2011, 11:07pm UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/25 "2011-07-07T23:07:02Z")
> [@Boyo\_Jim](#): > > FYI, the Connick in this case is the father of noted pianist/singer Harry Connick, Jr. Yes, he is. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [July 7, 2011, 11:16pm UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/26 "2011-07-07T23:16:22Z")
> [@Bricker](#): > > _Connick v. Thompson_ stands for the proposition that when an individual DA goes off the rails in one case (as opposed to an on-going pattern) the entire DA’s office is not liable. I have no problem with that decision, because the theory for recovery against the whole office was negligent training and supervision. But that’s absurd – the prosecutor in question knew damn well his actions were illegal. More training would not have helped. I’ll just quote this because he says it better than I could: > [@](#): > > But Justice Thomas ignores substantial evidence in the record that Connick’s office was a virtual cesspool of prosecutorial misconduct. Indeed, at least four prosecutors were aware of the withheld evidence in Thompson’s armed robbery trial. The responsible prosecutor had actually confessed to a colleague that he had withheld the lab report. Connick had had a number of prior convictions reversed for Brady violations. Connick himself openly admitted to never having cracked a law book subsequent to becoming district attorney in 1974. > > Justice Thomas finds this record unpersuasive because, as he notes, none of the previous Brady violations “involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind.” Accordingly, he concludes, Connick could not have been on notice of the need to train his staff concerning the specific violation in Thompson’s case. Besides, he continues, prosecutors are trained attorneys who can be expected to know and understand their obligations. I don’t know how many potential violations exist in the Brady universe, but presumably Justice Thomas would require that Connick’s prosecutors commit all of them before “deliberate indifference” might be inferred. > > SOURCE: [CONNICK V. THOMPSON AND PROSECUTORIAL IMPUNITY – JONATHAN TURLEY](http://jonathanturley.org/2011/04/10/connick-v-thompson-and-prosecutorial-impunity/) ---
**Author:** ![aceplace57](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aceplace57/32/3500_2.png) [@aceplace57](https://boards.straightdope.com/u/aceplace57)\ **Post date:** [July 8, 2011, 12:13am UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/27 "2011-07-08T00:13:53Z")
I recall the original DA in the Jonbenet Ramsey case refused to prosecute because there wasn’t enough evidence. He had enormous pressure put on him and still stood on principle. Years later… The next DA looked at the case, and did further investigation. Thought about it and refused to prosecute too. A good DA won’t prosecute a case unless the evidence is there. Some DA’s duck prosecutorial discretion and use grand juries to decide if an indictment is warranted. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 8, 2011, 1:49am UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/28 "2011-07-08T01:49:24Z")
An obvious question, if I may. I assume there is no “double jeopardy” type constraint in civil law. If I am correct in that, does it mean that Thompson can try again to sue for what happened to him but using a different approach (i.e. not on the basis that the DAs’ training by Connick was inadequate but for, say, something along the lines of “misconduct” or “negligence”)? Thanks! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 9, 2011, 2:25am UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/29 "2011-07-09T02:25:00Z")
> [@KarlGauss](#): > > An obvious question, if I may. > > I assume there is no “double jeopardy” type constraint in civil law. If I am correct in that, does it mean that Thompson can try again to sue for what happened to him but using a different approach (i.e. not on the basis that the DAs’ training by Connick was inadequate but for, say, something along the lines of “misconduct” or “negligence”)? > > Thanks! Actually. there is. The same claim can’t be retried after it’s been fully and finally litigated under a principle called _res judicata_. A different cause of action based on the same basic claim, such as you envision, is prohibited by _collateral estoppel_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 9, 2011, 2:27am UTC](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978/30 "2011-07-09T02:27:38Z")
> [@Whack-a-Mole](#): > > I’ll just quote this because he says it better than I could: And how does that get solved by additional training? [Previous page](https://boards.straightdope.com/t/defense-attorney-does-his-her-best-even-if-aware-client-is-guilty-is-there-a-similar-vow-for-das/587978.md?page=1)