IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30443

JOHN THOMPSON

Plaintiff-Appellee

v.

HARRY F CONNICK, in his official capacity as District Attorney; ERIC

DUBELIER, in his official capacity as Assistant District Attorney; JAMES

WILLIAMS, in his official capacity as Assistant District Attorney; EDDIE

JORDAN, in his official capacity as District Attorney; ORLEANS PARISH

DISTRICT ATTORNEY’S OFFICE

Defendants-Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

Before KING, STEWART, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

In Brady v. Maryland, 373 U.S. 83, 87 (1963),the Supreme Court held that

due process requires the prosecution in a criminal case to turn over evidence

that is favorable to the accused when the evidence is material to guilt or

punishment. The Supreme Court later expanded the Brady rule to require the

disclosure of evidence that is relevant to the credibility of key government

witnesses. See Giglio v. United States, 405 U.S. 150, 154 (1972). In the criminal

proceedings that prompted this lawsuit, it is undisputed that Brady evidence

United States Court of Appeals

Fifth Circuit

F I L E D

December 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-30443

2

was not turned over to the defense. As a result, Plaintiff-Appellee John

Thompson (“Thompson”) was convicted of an attempted armed robbery of which

he was actually innocent. Attorneys in the Orleans Parish District Attorney’s

Office (“the DA’s Office”) then used the attempted armed robbery conviction to

help secure a conviction and death sentence for Thompson in an unrelated

murder case. Eighteen years later—and one month before his scheduled

execution—Thompson’s investigators uncovered the exculpatory evidence that

indisputably cleared Thompson of the armed robbery charge. Thompson was

then retried for the murder and found not guilty.

Thompson now seeks damages for the eighteen years he spent in prison,

fourteen of which were in solitary confinement on death row. After a jury trial

lasting several days, the jury determined that the DA’s Office was deliberately

indifferent to the need to train, monitor, and supervise its attorneys on Brady

principles. The jury awarded Thompson $14 million in damages, and the district

court added approximately $1 million in attorneys’ fees. Defendants challenge

that result on multiple grounds. Finding no reversible error for the majority of

Defendants’ arguments, we AFFIRM in large part. Because the district court

erroneously included non-liable defendants in the judgment, we REVERSE in

part and REMAND with instructions to remove those defendants from the

judgment.

I. FACTUAL BACKGROUND

On December 6, 1984, Raymond T. Liuzza Jr. (“Liuzza”) was robbed, shot,

and killed outside of his home in New Orleans. Because Liuzza was the son of

a prominent executive, the murder received a lot of attention in the community.

Approximately three weeks later, on December 28, 1984, siblings Jay, Marie,

and Michael LaGarde were the victims of an armed robbery while in their car in

New Orleans. Jay LaGarde fought off the perpetrator, and, in the scuffle, some

of the perpetrator’s blood ended up on the cuff of Jay’s pants. As part of the
No. 07-30443

3

police investigation, crime scene technicians took a swatch of the pants with the

perpetrator’s blood on it.

On January 17, 1985, Thompson and Kevin Freeman (“Freeman”) were

arrested and charged with the Liuzza murder. As a result, Thompson’s picture

was published in the New Orleans Times-Picayune. The LaGardes’ father

showed his children the picture, and they believed that Thompson was the

individual who had attempted to rob them. They contacted the DA’s Office and

identified Thompson as the armed robber. 

TheLaGardes’ armed robbery case was then screened by assistant district

attorney Bruce Whittaker (“Whittaker”) as part of the case handling process that

then-District Attorney Harry F. Connick (“Connick”) instituted. Screening was

designed to identify the cases in which charges should be brought and those in

which no further action should be taken. The screening process would begin

when the New Orleans police department made an arrest. The police

department would then send a police report to the DA’s Office where it was

reviewed by an assistant district attorney (the screener) who determined

whether a case could be made against the alleged perpetrator. The screener

then filled out a Screening Action Form indicating whether charges should be

brought and, if appropriate, making suggestions about the way the case should

be handled.

With respect to the armed robbery of the LaGardes, Whittaker approved

the case for prosecution and, after noting that a crime scene technician had

taken a swatch of Jay LaGarde’s pants with blood on it, wrote on the Screening

Action Form that the government “[m]ay wish to do blood test.” Whittaker also

indicated that the case should be handled by Eric Dubelier (“Dubelier”) as a

special prosecutor. Whittaker explained at trial that the case was sent to

Dubelier because it involved the same defendant (Thompson) as the Liuzza

murder case, which Dubelier was already handling.
No. 07-30443

1 Williams explained that he was asked to handle the hearing because Dubelier was

unavailable at that time.

2 Thompson’s defense counsel had submitted a request for exhibits and scientific

evidence that were favorable to Thompson. Dubelier’s written reply was “[i]nspection to be

permitted.” The bloody pant leg was sent to be tested the day after Dubelier’s reply was filed.

4

In a strategic move, the district attorneys successfully petitioned the

Orleans Parish Criminal District Court to switch the order of the trials so that

Thompson would be tried for the armed robbery first. The idea was that a guilty

verdict in the armed robbery case would make Thompson unwilling to take the

stand in the murder trial (due to the fact that a conviction from the attempted

armed robbery trial could be entered into evidence against him, as impeachment,

if he testified) and increase the likelihood of the death penalty. 

On March 11, 1985, James Williams (“Williams”) handled a hearing on

behalf of the DA’s Office regarding a motion to suppress in the LaGarde armed

robbery case.1 At the conclusion of the hearing, Williams, noting the reference

to a blood test on the Screening Action Form, stated in open court that “it’s the

state’s intention to file a motion to take a blood sample from the defendant, and

we will file that motion—have a criminalist here on the 27th.” There is no

indication that the DA’s Office ever sent anyone to test Thompson’s blood.

Approximately one week before the armed robbery trial,the bloody swatch

from Jay LaGarde’s pants was sent to be tested, although the record does not

reveal who ordered the test. Two days before the armed robbery trial, Whittaker

received a crime lab report that stated that the armed robbery perpetrator’s

blood type was type B. Whittaker stated that he placed the report on Williams’s

desk, but Williams claims that he never saw the report. Regardless, the report

was never turned over to Thompson.2 Several days before the armed robbery

trial, Dubelier asked Williams to act as lead prosecutor in the case. Therefore,

the armed robbery case was tried by Williams and assistant district attorney

Gerry Deegan (“Deegan”) on April 11 and 12, 1985. 
No. 07-30443

3 At minimum, Whittaker, Deegan, and Williams knew about the blood evidence.

4 The criminal district court denied Thompson’s motion in limine to prevent the

admission of his attempted armed robbery conviction.

5

On the first day of trial, Deegan checked all of the armed robbery evidence

out of the police property room, including the bloody swatch from Jay LaGarde’s

pants. Deegan then checked the evidence into the court property room, but

never checked in the pants swatch.3 Williams never mentioned the blood

evidence at trial and relied primarily on eyewitness testimony. The jury found

Thompson guilty of attempted armed robbery, and he was sentenced to fortynine and one-half years in prison.

Dubelier and Williams then tried Thompson for the Liuzza murder from

May 6 to 8, 1985. At the trial, Freeman (the other individual who had been

charged with the murder) testified that Thompson shot Liuzza. Roger Perkins

(“Perkins”), an acquaintance of Thompson’s, testified that Thompson made

incriminating statements about the Liuzza murder and that he had sold

Thompson’s gun for him. There was also testimony by police officer David

Carter and eyewitness Paul Schliffka (“Schliffka”). Schliffka described the

perpetrator’s hair as “short” and as an “afro.” Carter testified that, when he first

questioned Schliffka, Schliffka described the perpetrator’s hair as “black and

short, afro style.” 

Due to his attempted armed robbery conviction, Thompson chose not to

testify on his own behalf. Had he testified, the district attorney likely would

have entered his attempted armed robbery conviction into evidence against him

for purposes of impeachment.4 The jury convicted Thompson of first-degree

murder. During the sentencing phase, Marie LaGarde testified about

Thompson’s attempt to rob her family and her brother’s actions in fighting him

off. Dubelier emphasized this testimony in his closing argument, asserting that

there easily could have been three more murders and that a death sentence was
No. 07-30443

5 Riehlmann faced disciplinary proceedings for withholding the information.

6

necessary to punish Thompson because he was already set to spend forty-nine

and one-half years in prison for the attempted armed robbery. The jury

sentenced Thompson to death. 

In the fourteen years after his murder conviction,Thompson exhausted all

of his appeals. His execution was set for May 20, 1999, and his attorneys

informed him that there were no more options for appeal. Then, in late April

1999, one of Thompson’s investigators came across a microfiche copy ofthe crime

lab report containing the blood type of the armed robbery perpetrator.

Thompson was tested and found to be blood type O, making it impossible for him

to have been the armed robber. Thompson’s attorneys presented this

information to the DA’s Office, which then moved for a stay of execution. In the

ensuing investigation, it was uncovered that, in 1994, Deegan confessed to

Michael Riehlmann (“Riehlmann”), a former assistant district attorney, that he

(Deegan) had intentionally withheld the blood evidence. Deegan made this

confession shortly after being told that he had only months to live as the result

of cancer. Riehlmann did not tell anyone of the confession until the blood

evidence was discovered in 1999.5

Thompson further asserts that other Brady evidence was not turned over

as required. Several police reports containing eyewitness descriptions of the

murderer that did not match Thompson’s description were notturned over to the

defense, despite the defense’s request for all police reports containing

descriptions inconsistent with Thompson’s general appearance. For example,

one police report indicated that Schliffka described the perpetrator as having

“close-cut hair” and made no reference to an “afro style” haircut. At the time of

the murder, Thompson’s hair was decidedly “afro style,” while Freeman’s was

“close-cut.” Thompson also asserts that the DA’s Office did not disclose the fact
No. 07-30443

6

In this case, Defendants did not object to the district court’s instruction to the jury

that as a matter of law the nonproduction of the blood evidence violated Thompson’s

constitutional rights. The district court based its decision on the Louisiana Fourth Circuit

Court of Appeals’s finding that “the State’s intentional hiding of exculpatory evidence in the

armed robbery case led to his improper conviction in that case.” State v. Thompson, 825 So.

2d 552, 557 (La. Ct. App. 2002). On appeal, Defendants have not argued that the blood

evidence was not exculpatory or that its nondisclosure was not a Brady violation.

7

that Perkins received a monetary award from the Liuzza family for identifying

the murderer.

Following the stay of execution, Connick moved to vacate the armed

robbery conviction and did not retry Thompson for that crime.6 Connick also

convened a grand jury to investigate the concealment of the blood evidence, but

eventually dismissed the grand jury. John Glas (“Glas”), the assistant district

attorney who was prosecuting the concealment charges, resigned in protest of

the dismissal and testified in the instant case that the evidence supported the

charges.

Thompson filed for post-conviction relief on the murder conviction and, in

2001, the criminal district court changed his death sentence to life-in-prison, as

the attempted armed robbery conviction had been used as evidence against him

during the sentencing phase. The Louisiana Fourth Circuit Court of Appeals

reversed Thompson’s murder conviction in 2002, finding that the attempted

armed robbery conviction unconstitutionally deprived Thompson of his right to

testify in his own defense at his murder trial. State v. Thompson, 825 So. 2d

552, 557 (La. Ct. App. 2002). The DA’s Office retried Thompson for the Liuzza

murder, and, free of the attempted armed robbery conviction, Thompson testified

in his own defense. In addition, Thompson was able to use thirteen pieces of

evidence that the prosecutors did not turn over during the first murder trial.

This evidence included the police and incident reports described above,

photographs, statements by Freeman and Perkins, an audiotape of Perkins, and

information regarding the monetary award given to Perkins. Sheri Hartman
No. 07-30443

8

Kelly, Stephen McAlister, and Rosemary Cash McAlister, eyewitnesses who the

police had not previously disclosed to Thompson, also testified about the Liuzza

murder. Freeman, the DA’s Office’s key witness in the first murder trial, had

been killed during the interval between the first and second trial. However, the

state court permitted the DA’s Office to read relevant portions of Freeman’s

testimony in the first trial, and Thompson’s lawyers were permitted to state the

questions they would have propounded on cross-examination. The jury returned

a verdict of not guilty in thirty-five minutes. Thompson was then released from

prison, eighteen years after he was initially arrested.

II. PROCEDURAL HISTORY

Thompson filed suit on July 16, 2003, naming as defendants the Orleans

Parish District Attorney’s Office; Connick, Williams, Dubelier, and Eddie Jordan

(the District Attorney in 2003) in their official capacities; and Connick in his

individual capacity (collectively, “Defendants”). Thompson brought state law

claims for malicious prosecution and intentional or reckless infliction of

emotional distress, as well as a claim under 42 U.S.C. § 1983 for wrongful

suppression of exculpatory evidence and a conspiracy claim under 42 U.S.C.

§ 1985(3). The district court granted summary judgment for Defendants on the

state law claims on the basis of absolute prosecutorial immunity but permitted

the federal claims to go forward. 

The parties presented the case to a jury from February 5 to 9, 2007. Prior

to the trial, Thompson dismissed the claim against Connick in his individual

capacity, and, after Thompson rested, the district court dismissed the § 1985(3)

conspiracy claim. At the close of evidence, the district court ruled that Dubelier

and Williams were not “policymakers” and, thus, their actions could not create

liability on behalf of the DA’s Office. It also ruled, and stated in the jury

instructions, that the nondisclosure of the blood evidence and the resulting

infringement of Thompson’s right to testify in the murder trial violated his
No. 07-30443

7 Although instructing the jury that, as a matter of law, the Brady violation in the

armed robbery trial resulted in a violation of Thompson’s right to testify in his murder trial,

the district court allowed the jury to consider other violations of Thompson’s rights in the

murder trial. The court instructed the jury that it may consider other violations as additional

evidence ofthe DA’s Office’s official policy or deliberate indifference. Defendants did not object

to this instruction and, on appeal, take issue with the instruction for the first time in their

reply brief. We do not, therefore, consider Defendants’ argument. See Yohey v. Collins, 985

F.2d 222, 225 (5th Cir. 1993) (“This Court will not consider a claim raised for the first time in

a reply brief.”).

9

constitutional rights.7 Therefore, the arguments of the parties focused on

whether the DA’s Office had an unconstitutional policy regarding Brady

evidence and whether the DA’s Office adequately trained, monitored, and

supervised its attorneys regarding their Brady obligations.

Following three and a half days of testimony, the jury was asked the

following two questions concerning liability:

1. Was the Brady violation in the armed robbery case or any

infringements of John Thompson’s rights in the murder trial

substantially caused by an official policy of the District

Attorney?

* * *

2. Was the Brady violation in the armed robbery case or any

infringements of John Thompson’s rights in the murder trial

substantially caused by the District Attorney’s failure,

through deliberate indifference, to establish policies and

procedures to protect one accused of a crime from these

constitutional violations?

If the jury answered “Yes” to either question, it was instructed to answer a third

question regarding damages:

3. Please state what sum of money, if any, would reasonably and

fairly compensate John Thompson for damages he has

actually suffered or is reasonably likely to suffer in the future

as a result of the District Attorney’s policy or deliberate

indifference.

A little more than three hours after the jury recessed to begin

deliberations, it sent out a note, which read:
No. 07-30443

10

What does “Deliberate” Indifference mean? Does it mean

intentional or would “Failure to monitor” be considered Deliberate?

After discussing the issue with the attorneys, the district court sent in the

following response:

“Deliberate Indifference” does not necessarily mean intentional, but

does require more than mere negilgence [sic] or even gross

negligence. Please refer to pages 26 + 27 of the legal instructions for

further guidance.

The court had originally instructed the jury that to find liability for

deliberate indifference under the second question it had to conclude that “[t]he

district attorney’s failure to adequately train, monitor, or supervise amounted

to deliberate indifference to the fact that inaction would obviously result in a

constitutional violation.” Pages 26 and 27 of the jury instructions clarified,

In order to find that the district attorney’s failure to adequately

train, monitor, or supervise amounted to deliberate indifference, you

must find that Mr. Thompson has proved each ofthe following three

things by a preponderance of the evidence:

First: The District Attorney was certain that

prosecutors would confront the situation where they

would have to decide which evidence was required by

the Constitution to be provided to an accused.

Second: The situation involved a difficult choice, or one

that prosecutors had a history of mishandling, such

that additionaltraining, supervision, or monitoring was

clearly needed.

Third: The wrong choice by a prosecutor in that

situation will frequently cause a deprivation of an

accused’s constitutional rights.

Less than half an hour later, the jury returned its verdict, answering “No”

to the first question regarding whether the harm was caused by an official policy.

The jury answered “Yes”to the second question regarding whether the harm was

caused by a deliberately indifferent failure to establish policies and procedures.

The verdict form reflects that at some point the jury checked “No” in response
No. 07-30443

8 Liability in this case was thus predicated on the district attorney’s failure to train,

monitor, or supervise. In this opinion, however, we use the term “failure to train” to

encompass all three bases for liability because the parties have framed the issues on appeal

in those terms.

11

to the second question but had crossed it out and checked “Yes.” The jury then

awarded Thompson $14 million in damages.8

The district court entered a judgment in that amount against Connick,

Dubelier, Williams, and Jordan in their official capacities and against the DA’s

Office “jointly and in solido.” Defendants filed a motion for judgment as a matter

of law, a motion to amend or alter the judgment, and a motion for a new trial.

The district court denied all three motions. The district court granted

Thompson’s motion for attorneys’ fees and awarded him $1,031,841.79, entering

a separate judgment to that effect. Defendants appealed. We have jurisdiction

pursuant to 28 U.S.C. § 1291, as a final judgment has been entered.

III. DISCUSSION

A. Statute of Limitations

On appeal, Defendants first argue that the district court erred in denying

their motion for summary judgment on the issue of whether the statute of

limitations barred Thompson’s claim of a Brady violation in the armed robbery

trial for the nondisclosure of blood evidence. The district court held that

Thompson could not have brought suit prior to July 17, 2002, when the

Louisiana Fourth Circuit Court of Appeals overturned Thompson’s murder

conviction; therefore, Thompson’s suit was timely brought within one year of

that day—July 16, 2003. Defendants argue that Thompson’s claims accrued

prior to July 17, 2002, and thus that his suit was untimely.

We review a district court’s ruling on summary judgment de novo. United

States v. Corpus, 491 F.3d 205, 209 (5th Cir. 2007). To determine the statute of

limitations for an action brought pursuant to § 1983, we look to the forum state’s

personal injury limitations period. Jacobsen v. Osborne, 133 F.3d 315, 319 (5th
No. 07-30443

12

Cir. 1998). In this instance, Louisiana’s personal injury limitations period is one

year. Id.; see LA. CIV. CODE ANN. art. 3492. The parties do not dispute that a

one-year statute of limitations applies to this case. Instead, their dispute centers

on when the one-year period began to run.

Federal law governs the date on which a § 1983 claim accrues and the

limitations period starts to run. See Wallace v. Kato, 127 S. Ct. 1091, 1095

(2007). Defendants propose two dates when Thompson’s claims accrued:

(1) June 29, 1999—when Thompson’s armed robbery conviction was vacated

(insofar as the claim arises from the Brady violation during the armed robbery

trial); and (2) May 26, 2001—when Thompson’s death sentence was changed to

life in prison (insofar as the claim asserts damages he suffered while

incarcerated on death row). Use of either date would result in all or part of

Thompson’s suit being barred by limitations. Thompson counters that, under

Heck v. Humphrey, 512 U.S. 477 (1994), he could not have filed suit until July

17, 2002—the day the court of appeals reversed his murder conviction. Because

his action was filed within one year of that day, Thompson contends it was

timely. The district court agreed with Thompson, basing its decision on Heck

and the Louisiana court of appeals’s decision that the withheld blood evidence

caused Thompson not to testify in his murder trial. We thus turn to Heck’s

application in these circumstances.

Pursuant to Heck, a plaintiff must prove that a conviction or sentence has

been reversed, expunged, declared invalid, or called into question by the

issuance of a writ of habeas corpus before the plaintiff may proceed with a civil

suit for damages for wrongful conviction or imprisonment. Id. at 486–87; see

also Wallace, 127 S. Ct. at 1098 (holding that the Heck rule “delays what would

otherwise be the accrual date of a tort action until the setting aside of an extant

conviction which success in that tort action would impugn”). The Heck Court

elaborated on the standard as follows:
No. 07-30443

13

[W]hen a state prisoner seeks damages in a § 1983 suit, the district

court must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence;

if it would, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been

invalidated. But if the district court determines that the plaintiff’s

action, even if successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff, the action

should be allowed to proceed, in the absence of some other bar to the

suit.

512 U.S. at 487 (footnote omitted). Thus, for example, if Thompson had

attempted to bring suit for a Brady violation related to his attempted armed

robbery conviction prior to when that conviction was vacated, his claim would

have been barred by Heck because a finding that the government withheld

exculpatory evidence would necessarily imply the invalidity of Thompson’s

armed robbery conviction. See id. at 479, 490 (dismissing claim that government

had destroyed exculpatory evidence because conviction had not been vacated);

Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (same).

In the instant case, the rationale underlying the decision by the district

court is that a suit regarding the withheld blood evidence in the armed robbery

case would have called the murder conviction into doubt; therefore, until the

murder conviction was overturned, Heck would have barred any civil suit. The

key on appeal, then, is whether a finding that the DA’s Office withheld the blood

evidence in the armed robbery case in violation of Brady would “necessarily

imply” that the murder conviction was invalid. If not, then Thompson’s suit

regarding the armed robbery could have been brought as soon as the attempted

armed robbery conviction was vacated in 1999, and that portion of Thompson’s

suit would be untimely.

When reversing Thompson’s murder conviction, the Louisiana appeals

court concluded that Thompson “would have testified at his murder trial but for

the improper attempted armed robbery conviction.” Thompson, 825 So. 2d at
No. 07-30443

9 The state court specifically noted the following statement by Thompson’s counselfrom

the trial transcript of Thompson’s first murder trial:

Given the fact that were Mr. Thompson to take the stand, [his armed robbery

conviction] would have been used against him, and after consulting with us, Mr.

Thompson concurred in our decision not to take the witness stand, Your Honor.

Thompson, 825 So. 2d at 556.

10 During Thompson’s attorney’s cross-examination of Williams at trial, the jury heard

his deposition testimony that the two cases were intertwined:

Q: And that’s, in fact, how it was handled with the prosecution of Mr.

Thompson, the cases were seen as—as intertwined and the prosecution of both

was coordinated, right?

[Williams]: Yes.

14

556.9 Defendants have offered no argument in opposition to this conclusion.

Moreover, Defendants’ actions inextricably linked the two trials. Defendants

stipulated that they sought to reverse the order of the armed robbery and

murder trials because “a conviction of Mr. Thompson on the armed robbery

charge would effectively preclude Mr. Thompson from taking the witness stand

in his own defense at the murder trial, and that the armed robbery conviction

could be used in the penalty phase of the murder trial to obtain a death

sentence.”10 Therefore, Thompson’s failure to testify at his murder trial may be

directly attributed to the district attorney’s conduct that resulted in the Brady

violation in the armed robbery case.

A criminal defendant’s opportunity to testify in his own defense is a

constitutionally protected right. Rock v. Arkansas, 483 U.S. 44, 51 (1987). In

this case,theLouisiana court determined thatThompson was wrongfully denied

his right to testify by the DA’s Office’s conduct. Thompson, 825 So. 2d at 557.

The court further held that the violation of Thompson’s right to testify was

structural error, not reviewable for harmlessness, and that, as a consequence,

Thompson was entitled to an automatic reversal of his murder conviction. See

id. at 557–58. Because it is undisputed that the Brady violation in the armed
No. 07-30443

11 Defendants did not argue in the district court that Thompson’s damages related to

the time he spent on death row accrued when his death sentence was changed to life in prison.

We generally will not consider an argument raised for the first time on appeal. See Leverette

v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). In any event, Defendants’

argument is incorrect. Thompson has asserted § 1983 claims stemming from the

nonproduction of the blood evidence in the armed robbery trial and the nonproduction of other

evidence during the murder trial. His time spent on death row was a harm flowing from one

or both of those claims, but not an independent claim that could separately accrue.

15

robbery case prevented Thompson from testifying in his murder trial and

because the Louisiana court found that reversal of the murder trial was an

automatic result of the violation in the armed robbery trial, Thompson’s lawsuit

regarding the Brady violation in the armed robbery case necessarily implied that

Thompson’s murder conviction was invalid. Cf. Edwards v. Balisok, 520 U.S.

641, 647–48 (1997) (holding that success on a claim alleging structural error

(bias on the part of the decisionmaker), which was not reviewable for

harmlessness, “necessarily impl[ies] the invalidity of the punishment imposed”

(citing Arizona v. Fulminante, 499 U.S. 279, 308 (1991); Tumey v. Ohio, 273 U.S.

510, 535 (1927))). Therefore, as the district court correctly held, pursuant to

Heck, Thompson could not have brought suit regarding the Brady violation in

the armed robbery case until his murder conviction was overturned.11 Cf.

Wappler v. Carniak, 24 F. App’x 294, 296 (6th Cir. 2001) (unpublished) (holding

that a § 1983 action does not exist where the plaintiff “claimed that his

misdemeanor conviction was used to enhance his sentence in another case”

because “a successful ruling on his claim would imply the invalidity of both his

guilty plea and his sentence in the later case”).

As a result, Thompson’s claims in this case did not accrue until July 17,

2002, when the court of appeals vacated his murder conviction. Thompson filed

suit within one year of that date, and thus, his lawsuit is not barred by the oneyear statute of limitations. Consequently, we affirm the district court’s denial

of Defendants’ motion for summary judgment on this point.
No. 07-30443

16

B. Sufficiency of the Evidence

Defendants next contend that the evidence admitted at trial does not

support a finding of deliberate indifference. Defendants raised this issue in their

motion for judgment as a matter of law pursuant to Federal Rule of Civil

Procedure 50, which the district court denied. This court reviews the denial of

a motion for judgment as a matter of law de novo. Flowers v. S. Reg’l Physician

Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001). However, our standard of review

with respect to a jury verdict is especially deferential. Id. We can reverse the

jury’s verdict only if “the facts and inferences point so strongly and

overwhelmingly in the movant’s favor that reasonable jurors could not reach a

contrary conclusion.” Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 282

(5th Cir. 2007) (internal quotation marks omitted). We must draw all reasonable

inferences in favor ofthe nonmovant and “disregard all evidence favorable to the

moving party that the jury is not required to believe.” Evans v. Ford Motor Co.,

484 F.3d 329, 334 (5th Cir. 2007) (internal quotation marks omitted). We may

not make credibility determinations or weigh the evidence. Id.

Because this case was brought against the DA’s Office and the district

attorneys in their official capacities, Thompson must prove that the violation of

his constitutional rights was the product of a policy or custom of the DA’s Office.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Certain actions of

a policymaker can also subject a governmental entity to liability under § 1983.

See Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005). In this case, the

district court determined that Connick, as District Attorney, was a policymaker

for the DA’s Office. With respect to claims that a constitutional violation was

caused by the government’s failure to train its employees, a plaintiff must prove

that the government was deliberately indifferent to the need to train. City of

Canton v. Harris, 489 U.S. 378, 388–89 (1989) (“Only where a municipality’s

failure to train its employees in a relevant respect evidences a ‘deliberate
No. 07-30443

17

indifference’ to the rights of its inhabitants can such a shortcoming be properly

thought of as a city ‘policy or custom’ that is actionable under § 1983.”).

Here,the jury rejected Thompson’s argument that Connick’s Brady policy

was unconstitutional but accepted the argument that Connick was deliberately

indifferentto the need to train on Brady issues. On appeal, Defendants set forth

numerous arguments as to why the jury could not reasonably have concluded

that Connick acted with deliberate indifference. 

1. No Pattern of Similar Violations

Defendants first argue that there was no evidence of a pattern of similar

Brady violations and that such a pattern is necessary to establish deliberate

indifference. Thompson does not argue that there was evidence of a pattern, but

instead contends that evidence of a pattern is not always necessary for a finding

of deliberate indifference.

In City of Canton, the Supreme Court set the degree of fault for a failureto-train case as deliberate indifference. 489 U.S. at 388. In elaborating on that

standard, the Court stated that 

it may happen that in light of the duties assigned to specific officers

or employees the need for more or different training is so obvious,

and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the need.

Id. at 390. The Court then included an example in a footnote:

For example, city policymakers know to a moral certainty that their

police officers will be required to arrest fleeing felons. The city has

armed its officers with firearms, in partto allow them to accomplish

this task. Thus, the need to train officers in the constitutional

limitations on the use of deadly force can be said to be “so obvious,”

that failure to do so could properly be characterized as “deliberate

indifference” to constitutional rights. It could also be that the

police, in exercising their discretion, so often violate constitutional

rights that the need for further training must have been plainly

obvious to the city policymakers, who, nevertheless, are

“deliberately indifferent” to the need.
No. 07-30443

18

Id. at 390 n.10 (citation omitted). Thus, the Supreme Court recognized two

possible methods of showing deliberate indifference: (1) when the need for

training is obvious based on the nature of the conduct at issue and the potential

for harm and (2) when there is a pattern of violations that makes it obvious to

city policymakers that more training is necessary.

The Supreme Court reaffirmed the possibility that a plaintiff could prove

deliberate indifference without having to show a pattern of constitutional

violations in Board of the County Commissioners v. Brown, 520 U.S. 397, 409

(1997), when it observed,

In leaving open in Canton the possibility that a plaintiff might

succeed in carrying a failure-to-train claim without showing a

pattern of constitutional violations, we simply hypothesized that, in

a narrow range of circumstances, a violation of federal rights may

be a highly predictable consequence of a failure to equip law

enforcement officers with specific tools to handle recurring

situations. The likelihood that the situation will recur and the

predictability that an officer lacking specific tools to handle that

situation will violate citizens’ rights could justify a finding that

policymakers’ decision not to train the officer reflected “deliberate

indifference” to the obvious consequence of the policymakers’

choice—namely, a violation of a specific constitutional or statutory

right.

Therefore, the Supreme Court has made it clear that a pattern of constitutional

violations is not always a prerequisite to a showing of deliberate indifference.

However, the Court has limited those situations to circumstances in which the

need for training is “obvious” and when the violation of rights is a “highly

predictable consequence” of the failure to train.

Fifth Circuit case law is not to the contrary. None of the cases cited by

Defendants in support of the pattern requirement states that evidence of a

pattern is always necessary. Instead, the cases all qualify the requirement by

stating that a pattern is “generally” or “usually” necessary. See, e.g., Rios v. City

of Del Rio, 444 F.3d 417, 427 (5th Cir. 2006) (stating that proof of deliberate
No. 07-30443

19

indifference “generally requires” the plaintiff to demonstrate a pattern of

violations); Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d

375, 381 (5th Cir. 2005) (stating that a plaintiff “usually” must demonstrate a

pattern of violations); Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task

Force, 379 F.3d 293, 309 (5th Cir. 2004) (stating that deliberate indifference

“generally requires” proof of a pattern of violations). This court’s precedent is

thus consistent with the Supreme Court’s limitation of single-incident liability

to the narrow circumstances in which the need for training is “obvious” and

when the violation of rights is a “highly predictable consequence” of the failure

to train.

Indeed, this court has explicitly recognized that a single incident of

misconduct can, in the right circumstances, give rise to a claim of deliberate

indifference. See Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005)

(discussing the Supreme Court’s description in Board of the County

Commissioners v. Brown, of when a single act may be sufficient to prove

deliberate indifference); Burge v. St. Tammany Parish (Burge II), 336 F.3d 363,

373 (5th Cir. 2003) (recognizing potential applicability of single-incident liability

where “the facts giving rise to the violation are such that it should have been

apparent to the policymaker that a constitutional violation was the highly

predictable consequence of a particular policy or failure to train”); Brown v.

Bryan County, 219 F.3d 450, 463 (5th Cir. 2000) (permitting a jury finding of

liability for deliberate indifference where no pattern of similar incidents existed

in a case involving a failure to train or supervise). Consequently, the fact that

Thompson did not establish a pattern of Brady violations by the DA’s Office is

not dispositive of his claims.

Further, the evidence developed at trial clearly demonstrates that this

case falls within the Supreme Court’s description of the narrow range of

situations that do not require a pattern of misconduct before deliberate
No. 07-30443

20

indifference can be shown. Here, there was evidence that Connick was aware

that the attorneys in the DA’s Office would be required to confront Brady issues

on a regular basis and that failure to properly handle those issues would result

in constitutional violations for criminal defendants. As Connick testified,

Q: . . . Would you agree, Mr. Connick, that as the District Attorney,

you were aware that from time to time the State would come into

possession of Brady evidence in criminal cases? 

[Connick]: Of course. 

Q: And would you also agree with me that you also knew that if the

favorable evidence came into possession of the State and if it wasn’t

produced to the defense,the result ofthat would be a violation ofthe

accused’s constitutional rights? 

A: Yes.

Thompson’s legal expert, Joseph Lawless, further testified:

[E]very district attorney knows that at some point in a prosecutor’s

career they are going to come into possession of evidence that tends

to be exculpatory of a defendant or tends to impeach other

witnesses. And they also understand that failure to turn that

information over under Brady is going to result in a serious

constitutional violation of a criminal defendant’s rights. 

There was also evidence that the need to train about Brady was obvious.

Many of the attorney witnesses in this case testified that Brady was a “gray”

area, subject to interpretation. Connick stated that Brady is “an elastic thing,

according to some of the justices too, and that makes it a little more difficult to

find a—a standing definition of what Brady is. It depends on the evidence, I

guess, but primarily the interpretation of Brady by judges.” Williams, who

prosecuted Thompson for both the armed robbery and the murder, testified as

follows:

Q: Even though you went to law school and you read case reports

and you read opinions as they came out, there were still gray areas

[regarding Brady] to an educated lawyer such as yourself? 

[Williams]: Yes. 
No. 07-30443

21

Whittaker agreed with that same sentiment:

Q: You would agree with me that under Brady there can be some

gray areas? 

[Whittaker]: Correct. 

Q: Sometimes it’s not crystal clear whether a document or piece of

information has to be turned over to the defense or not? 

A: That’s true.

Besides the difficulty in interpreting Brady,there was evidence that many

of the attorneys in the DA’s Office were only a few years out of law school, and

thus lacking the legal experience that could have helped them clarify Brady

issues without additional training.

Q: Would you agree with me that in 1985, many of the assistants,

the Assistant District Attorneys in your office were coming fresh out

of law school? 

[Connick]: Yes. 

Q: And in 1985, you had section chiefs that were less than four years

out of law school, like Mr. Dubelier, for example? 

A: Yes.

Whittaker further testified:

Q: And decisions on whether to produce Brady material, whether

material was Brady material and had to be produced, those kinds

of decisions would sometimes get made by inexperienced lawyers,

just a few weeks out of law school with no training? 

[Whittaker]: I imagine that’s certainly possible, yes.

Finally, Whittaker also testified thattraining in Brady would have been helpful:

Q: It would have been helpful to have a little training, wouldn’t it,

to kind of show you when you started what the Brady rule was so

you could deal especially with those gray areas? 

[Whittaker]: I think it would be a good thing, yes.

Thus,the jury heard evidence that attorneys, often fresh out of law school, would

undoubtedly be required to confront Brady issues while at the DA’s Office, that
No. 07-30443

12 We do not hold as a matter of law that Brady training is always required. Our

decision is based on the specific facts of this case that demonstrated that, at least in the

Orleans Parish DA’s Office in 1985, Brady training was needed.

13 As discussed below, the jury heard ample evidence from which it was entitled to

conclude that Connick provided no Brady-specific training. Thus, this is not a case wherein

the plaintiff failed to raise questions about the adequacy of on-the-job or other forms of

training. Cf. Burge II, 336 F.3d at 372–73 (refusing to consider single-incident liability in

which there was no evidence of inadequacy of on-the-job training).

22

erroneous decisions regarding Brady evidence would result in serious

constitutional violations, that resolution of Brady issues was often unclear, and

that training in Brady would have been helpful.

Consequently,Thompson has met his burden of demonstrating thatit was

obvious that training about Brady was necessary and that a highly predictable

consequence of failing to train attorneys about Brady was the infringement of

the constitutional rights of those accused of crimes, such as Thompson.12 No

pattern of similar violations was necessary to put Connick on notice that

training on Brady’s requirements was needed.13 Therefore, under the tests set

out in City of Canton and Board of the County Commissioners v. Brown,

Thompson did not need to prove a pattern of Brady violations to demonstrate

that the failure to train was deliberately indifferent, and the district court did

not err in denying Thompson’s motion for judgment as a matter of law on that

ground. See Walker v. City of New York, 974 F.2d 293, 300 (2d Cir. 1992)

(finding that a plaintiff sufficiently alleged deliberate indifference in failing to

train on Brady even though no pattern of violations was mentioned). 

2. Deegan’s Act Broke Causation

Defendants next contend that Deegan’s unanticipated action in

intentionally hiding the blood evidence in violation of Connick’s policy requires

the conclusion that Connick was not deliberately indifferent and breaks any

causal link between the alleged failure to train and Thompson’s injury.

Thompson responds that there was sufficient evidence for the jury to conclude
No. 07-30443

23

that Deegan was not solely responsible for the constitutional violations in this

case.

Defendants first argue that there must be evidence that Connick knew of

and failed to control Deegan’s “known propensity” for violating the constitutional

rights of others to demonstrate deliberate indifference. See Roberts, 397 F.3d at

292. This assertion is incorrect. Failing to control an employee’s known

propensity for violating the law is only one of several ways to demonstrate

deliberate indifference. See Sims v. Adams, 537 F.2d 829, 831–32 (5th Cir. 1976)

(listing multiple ways to establish a supervisory defendant’s § 1983 liability,

including failing to act despite knowledge of an employee’s propensity for

misconduct). In Roberts, the court confronted a situation in which the training

was adequate. 397 F.3d at 294 (referencing the “overwhelming evidence” that

the officer was adequately trained). In light of this, the plaintiff in that case had

to prove that the police chief knew that, despite his training, the officer was still

committing improper acts; the plaintiff failed to show inadequate training

generally. Thus, failing to demonstrate that Deegan had a known propensity for

hiding Brady material is not dispositive of Thompson’s claim; he did not pursue

thattheory of liability but rather alleged a failure to adequately train, supervise,

and monitor.

Defendants next cite the Fourth Circuit’s opinion in Shaw v. Stroud, 13

F.3d 791, 799 (4th Cir. 1994), for the proposition that a supervisor cannot

reasonably be expected to guard against the deliberate criminal acts of his

properly trained employees when he has no basis upon which to anticipate the

misconduct. Although we have no grounds to disagree with that statement, the

Fourth Circuit’s reasoning is not entirely applicable in this case. Shaw refers

to anticipating misconduct from “properly trained employees.” Id. (internal

quotation marks omitted). As discussed later in this opinion, there was evidence
No. 07-30443

14 Indeed, Williams, Deegan’s co-counselinthe armed robbery case, continuedto display

some confusion over Brady when he testified in the instant matter that Brady evidence did not

include documents that could be used to impeach a witness; instead, he stated that Brady

evidence is only evidence which would tend to exculpate a person charged with a crime.

Impeachment evidence has been considered Brady material since 1972. See Giglio, 405 U.S.

at 154. As discussed below, numerous witnesses expressed similar uncertainty about the duty

to turn over exculpatory blood evidence if they were not aware of the defendant’s blood type.

Defendants do not, however, challenge the district court’s ruling as a matter of law (based on

the holding ofthe Louisiana court of appeals)that the nonproduction ofthe blood evidence was

a violation of Brady’s requirements.

24

that the attorneys in this case were not trained on Brady’s requirements.

Therefore, Shaw does not mandate a verdict for Defendants.

Defendants also generally allege that Deegan’s confession to Riehlmann

exculpates them from any failure to train because Deegan intentionally acted

against his training in suppressing the evidence. However, Defendants read

more into Deegan’s statement to Riehlmann than is actually there. According

to Riehlmann’s affidavit, “the late Gerry Deegan said to me that he had

intentionally suppressed blood evidence in the armed robbery trial of John

Thompson that in some way exculpated the defendant.” At trial, Riehlmann

recalled that Deegan made this statement in April 1994, shortly after Deegan

had been diagnosed with terminal cancer.

To begin with, Riehlmann’s statementthat Deegan’s act was “intentional”

does not necessarily mean that Deegan acted with criminal intent. It could be

interpreted by the jury to mean that Deegan’s actions were deliberate and that

he did not accidentally lose the evidence. Further, Deegan never explained why

he suppressed the evidence. It could be that Deegan did not understand his

Brady obligations at that time, but in the period between 1985 and his

confession in 1994, he came to understand that his actions were wrong. As

described earlier, several of the former assistant district attorneys testified that

their Brady obligations were not always clear. It is not unreasonable to conclude

that Deegan suffered from a similar lack of understanding.14
No. 07-30443

25

The evidence Defendants presented was also ambiguous as to whether

Deegan was the only person who was aware of the blood evidence. Riehlmann’s

testimony at trial confirmed the uncertainty of his recollection of Deegan’s

statement:

Q: Did he say that anyone else was involved with the suppression or

did he just simply say, “I did it”?

[Riehlmann]: He may have said that someone else was involved, but

I don’t recall.

Riehlmann also explained that he could not say whether Deegan told him that

Dubelier or Williams were involved. Further, Riehlmann admitted that he did

not know to what piece of evidence Deegan was referring—the bloody pants leg,

the blood report, or both:

Q: Mr. Deegan didn’t tell you specifically about a blood report as

opposed to blood evidence, did he?

[Riehlmann]: I don’t remember exactly what he said.

Thus, Riehlmann’s recollection of Deegan’s confession does not rule out the

possibility that someone else could have been involved in the suppression of

either the bloody pants leg or the blood report.

In contrast to Defendants’theory,the jury heard evidence suggesting that

the Brady violation was not solely the result of Deegan’s actions. Whittaker

testified that he had seen the report and placed it on Williams’s desk, and

Riehlmann testified that he had no reason to believe that Deegan would have

taken the report off of Williams’s desk. Although denying that he ever saw the

report, Williams admitted that he was aware there was blood evidence in the

case and that he deliberately avoided mentioning blood evidence at Thompson’s

armed robbery trial. Former assistant district attorney Glas testified that he

helped investigate the incident when it was brought to Connick’s attention in

1999 and that it was his impression that Whittaker and Williams were covering

something up. Also, according to Glas, Williams told Jay LaGarde that the blood
No. 07-30443

15 We also note that Defendants’ argument on this point says nothing about the police

reports that were not turned over to defense counsel in the murder trial. The police reports

were thoroughly discussed at the trial of this matter and Defendants disputed among

themselves whether the police reports were Brady material that needed to be disclosed to

Thompson. Deegan was not involved in the murder trial; therefore, Deegan did not cause any

constitutional violations with respect to that trial and the withheld police reports.

26

evidence was “inconclusive.” Thus, although there was evidence that Deegan

acted alone, there is also evidence from which the jury could have believed that

others had a hand in failing to turn over the exculpatory evidence. 

Further, throughout the trial of this matter, Defendants attempted to

place the blame for Thompson’s conviction on Numa Bertel (“Bertel”),

Thompson’s defense counsel at his armed robbery case. Defendants argued that,

because Williams stated at the motion to suppress hearing that the government

wanted to take Thompson’s blood, Bertel should have been aware thatthere was

blood evidence and made an effort to discover it. Such reasoning could easily be

applied to Defendants in this case, whose knowledge of the blood evidence was

superior to Bertel’s.

In sum, then, drawing all inferences in favor of Thompson, a reasonable

jury could have believed that the constitutional violations in this case were not

solely attributable to Deegan’s alleged criminal conduct, but instead were the

result of confusion over Brady by various attorneys in the DA’s Office.15 “A jury

verdict must be upheld unless there is no legally sufficient evidentiary basis for

a reasonable jury to find as the jury did.” Int’l Ins. Co. v. RSR Corp., 426 F.3d

281, 296–97 (5th Cir. 2005) (internal quotation marks omitted). Because there

is a legally sufficient evidentiary basis for the jury’s verdict, we may not reverse

on this ground.

3. The Blood Evidence Was Obviously Exculpatory

Next, Defendants assert that because the blood evidence was obviously

exculpatory and withholding the evidence was such a clear violation of the law,
No. 07-30443

16 Solino later attempted to modify that statement by claiming that he would not have

disclosed the report upon receipt of it, but “one minute or one second” later, he would have

taken further steps to see if it should be disclosed.

27

no training could have helped in this instance. Defendants rely on Burge v.

Parish of St. Tammany (Burge I), 187 F.3d 452 (5th Cir. 1999), for their claim

that there can be no failure to train when the evidence is obviously exculpatory.

In Burge I, the plaintiff claimed that the district attorney failed to implement

policies and training to ensure that all materials, including exculpatory

evidence, that were gathered by the Sheriff’s Office were transmitted from the

Sheriff to the District Attorney and then disseminated to the appropriate

assistant district attorneys and turned over to the criminal defendants. Id. at

472. After reviewing the evidence, the court determined that there was no

deliberate indifference. Id. at 473. The court went on to state that, even if the

training were inadequate, the material at issue “was of such a quality and

quantity that any reasonably qualified and experienced prosecuting attorney

would have recognized it as Brady material that he was required to disclose.”

Id. at 475. Therefore, any alleged failure to train did not cause the

constitutional violation. Id.

The problem with Defendants’ argument in this case is that several of

Defendants’ own witnesses contended that the blood evidence was not Brady

material in the absence of knowledge of Thompson’s blood type. Val Solino

(“Solino”), the Rule 30(b)(6) representative for the DA’s Office, testified that, 

[I]f I’m holding a crime lab report that says blood on a shoe is B, and

I have some reason to believe that the blood on the shoe came from

the perpetrator, and I don’t know what the perpetrator’s blood type

is, do I feel I have a legal requirement at that point to disclose that

lab report? No.16

Glas testified that, in 1999, Connick argued with him that there was no duty to

turn over the report unless the attorney knew that it did not match Thompson’s
No. 07-30443

28

blood type. Although Williams later testified that he would have turned the

report over, he stated that, had he been in charge of responding to Thompson’s

request for evidence in the armed robbery trial, he would simply have responded

that the evidence was “available for inspection.” With respect to the withheld

police reports, Dubelier argued at trial that he was not required under Brady to

turn them over. 

Therefore, despite Defendants’ current argument on appeal, Defendants’

position at trial was less than clear about whether the evidence at issue was

obviously exculpatory. Given Defendants’ conflicting claims, there is no cause

to overturn the verdict on the ground that the material was obviously

exculpatory.

4. Connick Provided Adequate Training, Supervision, and

Monitoring

Defendants’ next contention is that Connick provided adequate training

in the form of on-the-job training, Saturday training sessions, dissemination of

memos and case opinions, and counseling. Further, each attorney had received

training in law school and participated in self-training after law school. In

support of their argument, Defendants rely on two cases from this court that

concern training on Brady issues. 

First, in Burge I, the evidence showed that there was no special training

program on Brady. 187 F.3d at 471. Instead, the District Attorney “relied on

the professional education,training, experience, and ethics of [his subordinates]

in the performance of their constitutional responsibilities.” Id. However, the

plaintiff in Burge I did not “focus directly on the adequacy of the training or

supervision ofthe District Attorney’s assistants and employees in relation to the

tasks that particular persons must perform” but instead attempted to identify

deficiencies in the procedures relating to the surrender of Brady material. Id.
No. 07-30443

17 When the case returned in Burge II, this court held that in some instances on-the-job

training regarding such procedures may be sufficient. See 336 F.3d at 373. We did so,

however, after the plaintiff produced no evidence showing its inadequacy. See id. (“Unlike the

facts of [Brown v.] Bryan County,” which permitted single-incident liability, “there is no

evidence in the present case . . . that the on-the-job training those employees received was

inadequate.”). Here, Thompson produced substantial evidence that any on-the-job training

was inadequate.

18 The DA’s Office changed its Brady-related instructionbetween Thompson’s trials and

the events in Cousins. According to Defendants’ witnesses in this case, around 1987, the DA’s

Office codified its policy regarding disclosure of Brady-related materials. Later, in the 1990s,

it began a continuing legal education program that covered Brady’s requirements.

29

at 473. Thus, the office procedures related to Brady materials were called into

question in Burge I, not the training on Brady.

17

Defendants also rely on this court’s decision in Cousin v. Small, 325 F.3d

627 (5th Cir. 2003), which, like the instant appeal, concerned the OrleansParish

DA’s Office’s failure to train on Brady issues. There, however, the plaintiff

conceded that the training on Brady was adequate in 1995. Id. at 629, 638.

That concession says nothing of the training, supervision, and monitoring that

existed when the DA’s Office tried Thompson in 1985.18 Thus, neither Burge I

nor Cousin stands for the proposition that a district attorney may rely solely on

the law school or on-the-job training of attorneys.

Although there was some evidence in this case that attorneys in the DA’s

Office might have received some training, the jury was entitled to believe the

ample evidence thatthe attorneys received no training on Brady’s requirements.

None of the three prosecutors involved in Thompson’s prosecutions recalled

receiving any Brady-specific training. For example, Williams testified that he

did not recall any training related to Brady’s requirements:

Q: What type of training was there at the DA’s office regarding

Brady material?

[Williams]: Again, I don’t recall any specific training.

Dubelier testified similarly:
No. 07-30443

19 Further, Connick himself testified that he “stopped reading law books” when he

became District Attorney in 1974.

30

Q: Do you recall any specific Brady training?

[Dubelier]: I don’t recall specifically any training.

As did Whittaker:

Q: So they didn’t sit down and do a little seminar for you on what

Brady was and how to live with it?

[Whittaker]: Not that I recall.

Other attorneys in the DA’s Office at the time of Thompson’s prosecutions

testified consistently. For example, Riehlmann stated, “To answer your question

specifically as it relates to Brady, I don’t recall that I was ever trained or

instructed by anybody about my Brady obligations, no.” Indeed, the government

stipulated that “[n]one of the district attorney witnesses recalled any specific

training session concerning Brady prior to or at the time of the 1985

prosecutions of Mr.Thompson.”19 That is, no prosecutor testified about a specific

example of Brady-related on-the-job training, Brady-related Saturday training

sessions, Brady-related advance sheets, or counseling or pretrial of a case that

resulted in Brady-specific discussions. This evidence supported the jury’s

finding that Connick failed to adequately train his attorneys on Brady and lent

credence to the district court’s conclusion that Thompson did not need to prove

a pattern of similar violations, as discussed above. See City of Canton, 489 U.S.

at 390 n.10; Walker, 974 F.2d at 300 (“[W]e conclude that a complete failure by

the DA in 1971 to train ADAs on fulfilling Brady obligations could constitute

deliberate indifference sufficient to give rise to § 1983 municipal liability.”).

5. Miscellaneous Arguments

Defendants make two other arguments regarding the sufficiency of the

evidence in this case: that there was no evidence (1) that Connick was

deliberately indifferent in failing to establish policies or procedures to ensure the
No. 07-30443

31

acquisition of Brady material from the police department and (2) that Connick

was deliberately indifferent to the need to establish an open-file policy. Neither

argument merits much attention.

The need for a policy to ensure the acquisition of Brady material from the

police department was not a theory of liability argued to the jury. It came up in

a roundabout way in the post-trial briefing, and there is no indication that the

district court relied on any arguments in that regard. The open-file policy was

mentioned at trial, but only in the context that the lack of an open-file policy

increased the need to make sure that the attorneys understood Brady. Again,

it was not argued to the jury as a theory of liability. Therefore, there is no basis

for reversal on either of these grounds.

C. Jury Instructions

Defendants next argue that the district court erred in its instructions to

the jury regarding deliberate indifference and by not giving the jury various

other instructions. We review a jury charge for abuse of discretion. Julian v.

City of Houston, 314 F.3d 721, 727 (5th Cir. 2002). In doing so, we use a twopronged standard of review to assess the propriety of the given instructions:

First, the challenger must demonstrate that the charge as a whole

creates substantial and ineradicable doubt whether the jury has

been properly guided in its deliberations. Second, even if the jury

instructions were erroneous, we will not reverse if we determine,

based upon the entire record, that the challenged instruction could

not have affected the outcome of the case.

Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997) (internal quotation

marks and citation omitted). 

“A prerequisite to our review of the instructions in this manner, however,

is that the objection must have been broughtto the attention ofthe district court

at trial.” Navigant, 508 F.3d at 293 (internal quotation marks omitted).

Pursuantto Federal Rule of Civil Procedure 51(c)(1), “[a] party who objects to an
No. 07-30443

32

instruction or the failure to give an instruction must do so on the record, stating

distinctly the matter objected to and the grounds for the objection.” Failure to

properly object to an instruction will result in a plain error review, which will

require Defendants to establish (1) error; (2) that is clear or obvious; (3) that

affects substantial rights; and (4)that, consistent with the court’s discretion, not

correcting the error would seriously affect the fairness, integrity, or public

reputation of the judicial proceedings. See Wright v. Ford Motor Co., 508 F.3d

263, 272 (5th Cir. 2007). With that in mind, we turn first to the instructions

regarding deliberate indifference.

1. Deliberate Indifference Instructions

Because the jury found that the DA’s Office was deliberately indifferent

to the need to train its attorneys on Brady, many of Defendants’ arguments

concerning the jury instructions have to do with the issue of deliberate

indifference. Defendants argue that the district court (1) failed to properly

define deliberate indifference for the jury, (2) incorrectly indicated that an

unintentional failure to monitor was sufficient for liability, and (3) incorrectly

stated that deliberate indifference did not necessarily mean intentional. We

address each argument in turn.

a. Failure to Define Deliberate Indifference

Defendants assert that, although the district court informed the jury of

what deliberate indifference was not (negligence or gross negligence), the district

court never explained to the jury what deliberate indifference was, leaving the

jury to guess at the term’s meaning. Defendants did not raise this objection

before the district court, so we review their claim for plain error. See Navigant,

508 F.3d at 295–96.

Having reviewed the jury instructions given by the district court, we

conclude that Defendants’ assertion is unfounded. As noted earlier, on the topic

of deliberate indifference, the district court instructed the jury as follows:
No. 07-30443

20 The three-step structure of the jury instructions came from the Second Circuit’s

opinion in Walker, 974 F.2d at 297–98.

33

Deliberate indifference requires a showing of more than

negligence or even gross negligence. For liability to attach because

of a failure to train, the fault must be in the training program itself,

not in a particular prosecutor. In order to find that the district

attorney’s failure to adequately train, monitor, or supervise

amounted to deliberate indifference, you must find that Mr.

Thompson has proved each of the following three things by a

preponderance of the evidence:

First: The District Attorney was certain that

prosecutors would confront the situation where they

would have to decide which evidence was required by

the Constitution to be provided to an accused.

Second: The situation involved a difficult choice, or one

that prosecutors had a history of mishandling, such

that additionaltraining, supervision, or monitoring was

clearly needed.

Third: The wrong choice by a prosecutor in that

situation will frequently cause a deprivation of an

accused’s constitutional rights.

To paraphrase, then, the district court told the jury that for a failure to train to

be deliberately indifferent, there must be proof that the District Attorney knew

that prosecutors would be confronted with difficult legal issues that had a

substantial impact on Defendants’ constitutional rights.20

This tracks the Supreme Court’s requirement that a failure to train is

deliberately indifferent when “the need for more or different training is . . .

obvious, and the inadequacy . . . likely to result in the violation of constitutional

rights.” City of Canton, 489 U.S. at 390; see also Estate of Davis, 406 F.3d at 381

(stating that an official acts with deliberate indifference when he “disregard[s]

a known or obvious consequence of his action” (internal quotation marks

omitted)). Indeed, in their proposed jury charge, Defendants themselves
No. 07-30443

34

requested a nearly identical instruction regarding the above three-element

standard.

Thus, rather than leaving the jury with nothing on which to base its

decision,the district court spelled out the requirements of deliberate indifference

as described by the Supreme Court and this court. Further, as discussed below,

the district court correctly informed the jury that deliberate indifference was

more than negligence and gross negligence, but less than intentional.

Consequently, we find no error, plain or otherwise, in this aspect of the district

court’s instructions.

b. Response to Jury Question

Defendants next contend that the district court’s response to the jury’s

question was erroneous because it left the jury with the impression that

deliberate indifference could mean any unintentional failure to monitor. As

noted earlier, the jury sent out the following question during its deliberations:

What does “Deliberate” Indifference mean? Does it mean

intentional or would “Failure to monitor” be considered Deliberate?

The district court responded:

“Deliberate Indifference” does not necessarily mean intentional, but

does require more than mere negilgence [sic] or even gross

negligence. Please refer to pages 26 + 27 of the legal instructions for

further guidance.

Defendants interpretthe jury’s question as presenting two options of what

deliberate indifference might mean: (1) intentional conduct or (2) any

unintentional failure to monitor. Because the district court stated that

deliberate indifference was not necessarily intentional, Defendants assert that

the jury must have believed that any unintentional failure to monitor was

sufficient. 

Review of the transcript of the discussion between the court and counsel

regarding how to respond to the jury’s question reveals that defense counsel did
No. 07-30443

21 Pages 26 and 27 of the jury instructions contain the three-part description of

deliberate indifference quoted earlier.

22 To the extent that Defendants complain about the “failure to monitor” theory being

included in the charge, we find no error. Defendants never objected to that language before

the district court and even proposed a jury charge that included “failure to supervise or train”

language.

35

not raise this point of alleged error before the district court. Regardless, we see

no error in the district court’s response. Defendants’ assertion that the jury

could have believed that any “unintentional” failure to monitor was sufficient

lacks support in the record. The jury was instructed that the failure to train or

monitor had to be “deliberate” and could not be based on mere negligence or

gross negligence. Therefore, contrary to Defendants’ claims, any “unintentional”

act would not have been sufficient to create liability.

“When evaluating the adequacy of supplemental jury instructions, we ask

whether the court’s answer was reasonably responsive to the jury’s question and

whether the original and supplemental instructions as a whole allowed the jury

to understand the issue presented to it.” United States v. Stevens, 38 F.3d 167,

170 (5th Cir. 1994). In doing so, we give the district court wide latitude in

deciding how to respond to such questions. Id. Here, the jury note indicated

confusion over the appropriate level of fault. The district court’s response

reiterated the appropriate level and directed the jury back to the relevant section

of the jury charge that described deliberate indifference in more detail.21 If, in

response to a jury question, the district court directs the jury’s attention to the

original instructions, the response is deemed sufficient if the original

instructions are an accurate statement of the law. United States v. Arnold, 416

F.3d 349, 359 n.13 (5th Cir. 2005). We presume the jury followed the

instructions of the district court, see Hollis v. Provident Life & Accident Ins. Co.,

259 F.3d 410, 417 (5th Cir. 2001), and the instructions did not permit a finding

of liability based on an “unintentional” failure to monitor.22
No. 07-30443

23 We do not consider the cases cited by Defendants that describe deliberate indifference

in the context of the Eighth Amendment, as the Supreme Court has held that to be a different

standard than the one articulated in City of Canton. See Farmer v. Brennan, 511 U.S. 825, 841

(1994) (noting thatthe deliberate indifference standardin City of Canton “is not an appropriate

test for determining the liability of prison officials under the Eighth Amendment”).

36

c. Intentional Conduct

Defendants next assert that the district court’s response that deliberate

indifference “does not necessarily mean intentional” is an inaccurate statement

of the law. It is questionable whether Defendants adequately preserved this

objection. During the colloquy regarding the jury note, defense counsel stated,

“It has to be, you know, if not completely intentional, I think it should be either

intentional or reckless disregard, he just didn’t care aboutit.” However, defense

counsel later stated, “Mr. Connick suggested to me that he thinks the word

deliberate means intentional.” Because we conclude that the district court’s

statement was legally correct, we do not need to determine whether the

appropriate standard of review is abuse of discretion or plain error.

Defendants cite several cases for the proposition that deliberate

indifference requires a “conscious disregard for the known and obvious

consequences of [one’s] actions,” Bd. of the County Comm’rs v. Brown, 520 U.S.

at 413 n.1, or that it is “an intentional choice, not merely an unintentionally

negligent oversight.” Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.

1992).23 This court has recognized, though, that deliberate indifference and

intent are not the exact same standard, as deliberate indifference is “a lesser

form of intent.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 n.7 (5th Cir.

1994) (internal quotation marks omitted). Further, the Supreme Court is well

aware of the standard of intent but chose to set the level of fault in failure-totrain cases as deliberate indifference. See City of Canton, 489 U.S. at 388. In

the context of municipal liability under § 1983 for failure to train, deliberate

indifference is akin to objective recklessness. See Farmer, 511 U.S. at 840–41
No. 07-30443

37

(describing Canton’s standard as “objective” because it permits “liability to be

premised on obviousness or constructive notice”).

Therefore, it would have been incorrectto instruct the jury that deliberate

indifference means intentional indifference, as precedent establishes that the

terms are not interchangeable. Consequently, Defendants have failed to

establish reversible error with respectto the deliberate indifference instructions

given by the district court.

2. Other Missing Jury Instructions

Finally, Defendants contend thatthe jury instructions never informed the

jury about how to treat certain pieces of evidence, namely (1)the type of training

that was provided, (2) Deegan’s unanticipated actions, and (3) the lack of a

pattern of Brady violations. We have explained,

[A] district court’s refusal to give a requested jury instruction is

reversible error only if the instruction [(1)] was a substantially

correct statement of law, [(2)] was not substantially covered in the

charge as a whole, and [(3)] concerned an important point in the

trial such that the failure to instruct the jury on the issue seriously

impaired the [party’s] ability to present a given claim [or defense.]

Kanida v. Gulf Coast Med. Pers., L.P., 363 F.3d 568, 578 (5th Cir. 2004) (fifth

alteration in original) (internal quotation marks omitted).

On appeal, Defendants proffer seventeen different instructions that they

contend should have been given. Although Defendants included these

instructions in their proposed jury instructions filed before trial, Defendants

only specifically objected to the absence of two instructions: (1) there can be no

deliberate indifference if an attorney intentionally ignores his training and

(2) proof of deliberate indifference requires evidence of a pattern of violations.

As for the first instruction, it was covered by the jury charge and, in any

case, we do not agree that the failure to give this instruction seriously impaired

Defendants’ ability to presenttheir argument. Defendants’ proffered instruction

goes to causation—whether the Brady violation was caused by a failure to train
No. 07-30443

38

or by something else, such as a deliberate criminal act. The jury instructions

stated, “For liability to attach because of a failure to train, the fault must be in

the training program itself, not in a particular prosecutor.” This instruction

clearly subsumes Defendants’ proposed instruction. Moreover, such reasoning

is simply common sense. Defendants were not impaired in any way from making

that claim, and they strongly argued to the jury thatthe Brady violation was due

solely to Deegan’s intentional criminal act. Therefore, there is no reversible

error in failing to include that instruction.

As to Defendants’ second rejected instruction regarding evidence of a

pattern of violations, for the reasons stated above, see supra Section III.B.1,that

was not a correct legal statement in the context of this case and Thompson’s

theory of liability. Therefore, the district court did not err in failing to instruct

the jury in that regard.

The remaining instructions that Defendants urge on appeal were not

specifically objected to before the district court; thus, we review the district

court’s action only for plain error. See Navigant, 508 F.3d at 295–96. The

instructions currently sought by Defendants include instructions that on-the-job

training can be sufficient, that law school training can be sufficient, and that no

training would have helped if the evidence was obviously Brady material.

Again, there is nothing that prevented Defendants from making these claims to

the jury—they are common sense arguments that do not need the imprimatur

of the court to be effective.

In sum, the district court did not need to tell the jury the possible effect of

every single piece of evidence. Much of that should be and was done by the

attorneys during closing arguments. Because Defendants have not shown that

they were seriously impaired in making their defense, we find no reversible error

in the district court’s refusal to give the requested instructions. 

D. Exclusion of Guilt-Related Evidence
No. 07-30443

39

Defendants next assertthatthe district court erroneously precluded them

from introducing evidence that Thompson was actually guilty of the Liuzza

murder. The issue arose when Thompson filed a motion in limine asking the

district courtto (1) preclude Defendants from arguing that Thompson was guilty

of murdering Liuzza and (2) exclude evidence bearing solely on Thompson’s guilt

or innocence of the murder. The district court granted the motion in limine and

stated that “[t]he issue of the plaintiff’s guilt has already been decided at the

second murder trial.” 

On appeal, Defendants contend that evidence of Thompson’s guilt was

necessary to establish that Thompson’s incarceration and resulting damages

were not caused by the Brady violation, but rather by Thompson’s own guilt.

Thompson counters that the issue of his guilt was established at his second

murder trial when he was found not guilty and that Defendants are collaterally

estopped from attacking that result. This court reviews a district court’s

evidentiary rulings for abuse of discretion. Triple Tee Golf, Inc. v. Nike, Inc., 485

F.3d 253, 265 (5th Cir. 2007). If we determine that the district court abused its

discretion, we then apply the harmless error doctrine. Id. Thus, unless a

substantial right of the complaining party is affected, we will affirm the ruling.

Id.

To begin with, we note that to the extent the parties argue about “guilty”

and “innocent,” they misstate the relevant question—the key question for

causation purposes is whether the prosecution could have proven Thompson’s

guilt beyond a reasonable doubt after turning over the Brady evidence, not

whether Thompson was actually guilty. Thus, to establish that Defendants’

Brady violation did not cause the guilty verdict, Defendants would have had to

demonstrate that they could still prove Thompson was guilty beyond a

reasonable doubt in the absence of the violation. That is exactly what the DA’s
No. 07-30443

24 Defendants argue that their key witness, Freeman, was not available at the second

murder trial. The criminal district court, however, permitted Defendants to read the relevant

portions of Freeman’s testimony from the first trial into evidence.

40

Office unsuccessfully attempted to do at Thompson’s second murder trial in

which he was found not guilty.

Although the district court did not reference collateral estoppel, we find

that the doctrine provides support for the district court’s conclusion. Collateral

estoppel applies when (1) the issue at stake in the current litigation is the same

as the one in the previous litigation, (2) the issue was actually litigated in the

previous litigation, and (3) the determination of the issue in the previous

litigation was a necessary part ofthe judgment. Harvey Specialty & Supply, Inc.

v. Anson Flowline Equip., Inc., 434 F.3d 320, 323 (5th Cir. 2005). Here, the issue

is whether Defendants can demonstrate that Thompson is guilty of the Liuzza

murder beyond a reasonable doubt so that they can claim that the Brady

violation did not cause Thompson’s conviction. Whether Thompson was guilty

beyond a reasonable doubt was exactly what was at stake in Thompson’s second

murder trial.24 The issue was actually litigated, and its determination was

necessary to the judgment. Therefore, Defendants are collaterally estopped from

attempting to prove (for the third time) that Thompson murdered Liuzza.

Accordingly, we will not reverse the district court’s judgment on this ground.

E. Amount of Damages

Defendants next argue that the $14 million in damages awarded by the

jury is excessive and not warranted by the evidence. Because Defendants moved

for a remittitur before the district court, we review the denial of the remittitur

for an abuse of discretion. See Vogler v. Blackmore, 352 F.3d 150, 154 (5th Cir.

2003). We may order a remittitur only if we are “left with the perception that

the verdict is clearly excessive.” Alameda Films S A de C V v. Authors Rights

Restoration Corp., 331 F.3d 472, 482 (5th Cir. 2003) (internal quotation marks
No. 07-30443

41

omitted); see also Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 462 (5th

Cir. 1995) (per curiam) (stating that damages are excessive when they are “so

large as to shock the judicial conscience, so gross or inordinately large as to be

contrary to right reason, [or] so exaggerated as to indicate bias, passion,

prejudice, corruption, or other improper motive” (internal quotation marks

omitted)).

Defendants argue that Thompson’s experiences in prison were not worth

$14 million in damages because (1) he was not raped in prison, (2) he was not

denied food or medicine, (3) he had visits from friends and family, (4) he made

friends with other inmates, (5) he was able to watch television and play chess,

and (6) he had been in jail previously for smaller crimes. Defendants also note

that Thompson has been doing well since his release and refers to himself as

“blessed.” To limit Thompson’s experiences to these few facts, however, would

present a misleadingly rosy picture of Thompson’s life both in prison and after

his release.

The evidence at trial showed that Thompson was arrested when he was

twenty-two years old and was not released until he was forty. He spent the first

two and a half years in the Orleans Parish Prison, where he was housed with the

hard core criminals, four or five to a cell. He witnessed multiple rapes and lived

in fear of becoming a victim himself. During his time at the Orleans Parish

Prison he received only two visits from his family. 

In 1987, Thompson was transferred to the Angola State Penitentiary,

where he was kept in solitary confinement. He spent twenty-three hours a day

in a six-by-nine-foot cell with no windows or air conditioning. Upon entering his

cell for the first time, he found personal items from its previous occupant, who

had been executed several days before. There were multiple mentally deranged

prisoners near him who would yell and scream at all hours and throw human

waste at the guards. Indeed, several witnesses testified to the stench that
No. 07-30443

42

permeated the prison. Thompson grew to know many of his fellow inmates and

was aware when they were executed. Thompson himself was given

approximately six execution dates during his time there and, as stated earlier,

came within one month of his final execution date. While at Angola, he received

approximately four visits a year from friends and family.

Thompson himself testified to the mental anguish he suffered as a result

of his incarceration. The guilty verdict in the armed robbery case “destroyed”

him and “tore [him] down.” His mother, girlfriend, and two sons witnessed the

jury hand down his death sentence. His girlfriend, who he had planned to

marry, married someone else. His grandmother, who had raised him, died

during his time at Angola. His sons grew up without a father. Thompson’s final

execution date was to be the day before his youngest son graduated from high

school. Thompson testified that he would have preferred to be executed than to

spend the rest of his life in prison.

Since his release, Thompson has done relatively well considering that he

was removed from society for eighteen years. He has married, held several jobs,

and is starting an organization to help individuals who have been released from

prison after being exonerated. However, Dr. Stuart Grassian, who testified as

an expertin the field of psychiatry and mental and emotional illness, specifically

in the area of the consequences of long-term confinement, solitary confinement,

and incarceration on death row, has diagnosed Thompson with chronic posttraumatic stress disorder. Dr. Grassian described to the jury in detail the

suffering of being in solitary confinement with nothing to distract a person from

his impending death.

Dr. Grassian stated that, although Thompson suffers from the symptoms

of chronic post-traumatic stress disorder, Thompson’s strong character has

enabled him to function in spite of his pain. Dr. Grassian further described

Thompson’s feelings of inadequacy and shame over his inability to perform
No. 07-30443

25 Through our own research, we have discovered a Louisiana case in which the court

held that a wrongfully incarcerated plaintiff was entitled to $40,000 in damages for only

twenty-three days of imprisonment. See Mairena v. Foti, 816 F.2d 1061, 1063 (5th Cir. 1987)

(finding that the district attorney was responsible for three-quarters ofthe plaintiff’s damages

and therefore assessing an award of $30,000 against the district attorney). This translates to

over $600,000 a year for an imprisonment that did not involve death row.

43

simple tasks, such as using a cell phone or copy machine, that Thompson never

learned as a result of his incarceration. According to Dr. Grassian, Thompson

is “constantly startled, constantly vigilant, . . . constantly afraid.” Dr. Grassian

does not see much likelihood that Thompson’s symptoms will change over time.

Given the entirety of the testimony about Thompson’s experiences and

suffering as a result of his wrongful incarceration, we cannot say that the jury

clearly erred in awarding him $14 million in damages or that the district court

abused its discretion in refusing to order a remittitur. See Primrose Operating

Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 559 (5th Cir. 2004) (stating that“reversal

is proper only if no reasonable jury could have arrived at the verdict”). 

Defendants also make a passing assertion that similar cases have resulted

in awards of, at most, $400,000 a year, whereas here, Thompson received over

$700,000 a year for his eighteen years of imprisonment. See Jenkins v. Baldwin,

801 So. 2d 485, 491 (La. Ct. App. 2001) (trial court awarded $12 million for thirty

years of incarceration plus over $650,000 in lost wages); Gibson v. State, 731 So.

2d 379, 380 (La. Ct. App. 1999) (trial court awarded $5 million for twenty-four

years of incarceration plus over $1.6 million in past and future lost income),

rev’d, 758 So. 2d 782 (La. 2000). However, Defendants fail to cite to a single

Louisiana case in which the appropriate amount of damages for a wrongful

incarceration was at issue. See Jenkins, 801 So. 2d at 501 (failing to reach

excessive damages issue because case was reversed); Gibson, 731 So. 2d at 385

(refusing to address issue of damages because it was not raised on appeal).25

Further, neither case cited by Defendants concerned an individual who had been
No. 07-30443

44

wrongfully sentenced to death. Therefore, we find this claim unavailing and

affirm the decision of the district court to deny Defendants’ request for a

remittitur.

F. Attorneys’ Fees

Finally, Defendants appeal the district court’s decision to award Thompson

$1,031,841.79 in attorneys’fees pursuantto 42 U.S.C. § 1988(b). The calculation

of attorneys’ fees under § 1988 is a two-step process. First, the court must

calculate the “lodestar”fee. Migis v.Pearle Vision, Inc., 135F.3d 1041, 1047 (5th

Cir. 1998); see also Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996). The

lodestar amount is determined by “multiplying the reasonable number of hours

expended on the case by the reasonable hourly rates for the participating

lawyers.” Migis, 135 F.3d at 1047. Second, the court decides whether the

lodestar amount should be adjusted upward or downward based on the

circumstances of the case using the factors articulated in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). Migis, 135 F.3d at

1047. The twelve Johnson factors are

(1) the time and labor required for the litigation; (2) the novelty and

difficulty of the questions presented; (3) the skill required to

perform the legal services properly; (4) the preclusion of other

employment by the attorney due to acceptance of the case; (5) the

customary fee; (6) whether the fee is fixed or contingent; (7) time

limitations imposed by the client or the circumstances; (8) the

amount involved and the result obtained; (9) the experience,

reputation and ability of the attorneys; (10) the “undesirability” of

the case; (11) the nature and length of the professional relationship

with the client; and (12) awards in similar cases.

Id. (citing Johnson, 488 F.2d at 717–19). We review the district court’s

determination of reasonable hours and rate for clear error and its application of

the Johnson factors for abuse of discretion. Id.

We start by observing that, other than a citation to Johnson, Defendants

cite no case law in support of their arguments on this point. Although
No. 07-30443

26 The fees are listed as ranges, as the hourly rates differed among attorneys and

increased over the time period covered—2003 to 2007.

45

Defendants claim to “incorporate” their arguments before the district court, it

is well-established in this circuit that we will not consider arguments by

incorporation. Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir.), cert.

denied, 128 S. Ct. 34 (2007); Summers v. Dretke, 431 F.3d 861, 881 n.12 (5th Cir.

2005); Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); see also FED. R.

APP.P.28(a)(9)(A) (requiring appellant’s briefto include “appellant’s contentions

and the reasons for them, with citations to the authorities and parts of the

record on which the appellant relies”). Further, given that Defendants’ brief is

already 13,977 words long and the limit is 14,000 words, see FED. R. APP. P.

32(a)(7)(B)(I), incorporation of arguments in other documents would have the

improper effect of lengthening the brief beyond what is permissible. See Yohey,

985 F.2d at 225. Therefore, we limit our analysis to Defendants’ somewhat

conclusory allegations in their briefing.

Here,the district courtfirst calculated the lodestar amount by considering

the hours and rates charged by Thompson’s counsel. The district court found

nothing wrong with the amount of hours claimed by Thompson’s attorneys, and

Defendants do not challenge that determination on appeal. The district court

then considered their requested fees, in light ofthe fees generally awarded in the

Eastern District of Louisiana. See Green v. Adm’rs of Tulane Educ. Fund, 284

F.3d 642, 662 (5th Cir. 2002) (noting that “[r]easonable hourly rates are

determined by looking to the prevailing market rates in the relevant legal

community”). Thompson’s Philadelphia-based counsel requested fees from

$405–$625 an hour for experienced attorneys, $180–$285 an hour for associates,

and $135–$225 an hour for legal and technical assistants.26 After surveying

recent awards in civil rights cases in the district, the district court decided that

a reasonable fee would be 50% of the amount that Thompson’s counsel sought.
No. 07-30443

46

Defendants assert that the highest fee awards in the Eastern District of

Louisiana are $260 for an experienced attorney, $150 for a junior attorney, and

$75 for a paralegal. At the 50% rate ordered by the district court, experienced

attorneys received $202–312 an hour, a mid-level associate received $90–202 an

hour, a junior associate received $90–142 an hour, and the paralegals received

$67–112 an hour. Thus, the fees awarded were both above and below the limits

argued by Defendants. The district court also noted that Thompson’s counsel

wrote off 482 hours (approximately $300,000 in attorneys’ fees), reduced their

normal rates by 10%, and did not seek to recover for local counsel’s work. The

district court further stated that it was “genuinely impressed” with counsel’s

work and commended the skill ofthe attorneys. Although the fees awarded were

atthe upper range of what was reasonable in the district, given this explanation,

we cannot say that there was clear error in calculating the lodestar amount.

We next consider whether the district court abused its discretion in

increasing the amount awarded based on its consideration of the Johnson

factors. The district court listed several factors as part of its decision to increase

the attorneys’ fees amount under Johnson, including the need for out-of-town

counsel,the time limitations in place, and the special skill required. Specifically,

the district court noted that Thompson’s Philadelphia counsel, who had

represented him for the past fourteen years, knew the case better than anyone

else and were the only ones in a position to file a complaint within the time

limits imposed by the statute of limitations. Further, the district court found

that successful presentation of the case required exceptional ability on the part

of Thompson’s counsel because it is extraordinarily difficult to actually obtain

a jury verdict for the plaintiff in a civil rights case.

On appeal, Defendants argue that counsel’s pro bono representation of

Thompson should not warrant an upward adjustment under Johnson. The

district court, however, stated that Thompson’s counsel would “of course remain
No. 07-30443

27 Defendants correctly argue thatthe district court erred in naming Connick, Dubelier,

and Williams in the judgment and abused its discretion by denying their Rule 59(e) motion to

alter or amend the judgment to correct this error. We have previously held that it is proper

to dismiss allegations against municipal officers in their official capacitieswhenthe allegations

duplicate claims againstthe governmental entity itself. See Castro Romero v. Becken, 256 F.3d

349, 355 (5th Cir. 2001) (noting that the official-capacity claims were duplicative of the claims

against the governmental entities); cf. FED. R. CIV. P. 25(d) (providing that when a public

officer is sued in his official capacity and the ceases to hold office, his successor is automatically

substituted as a party). Because it is undisputed that Connick, Dubelier, and Williams are no

longer employed at the DA’s Office, their official capacities are non-existent, and they should

not have been named in the judgment. Consequently, we reverse the district court’s decision

to deny Defendants’ Rule 59(e) motion and remand with instructions to remove Connick,

Dubelier, and Williams from the judgment. We further note that after the briefing of this case

was complete, Jordan, who was District Attorney when this case began, resigned his position.

Thus, pursuant to Rule 25(d), the district court should substitute the name of the current

District Attorney.

47

uncompensated” for those years of service;thus,there is no merit to Defendants’

argument on that point. Defendants also assert that local counsel could have

been found to bring Thompson’s case in a timely fashion and that the case did

not involve new or novel issues. Again, though, as noted by the district court,

finding counsel who could bring the suit is not the same as finding counsel who

could win the suit. Thompson’s attorneys were intimately familiar with the facts

of this case and were in the best position to bring Thompson’s claims. Under

Johnson, the skill required, the amount involved and result obtained, the time

limitations imposed by the circumstances, and the nature and length of the

professional relationship with the client are all factors that may be considered

in adjusting a fee award. Johnson, 488 F.2d at 717–19. We find no abuse of

discretion in the district court’s decision to adjust the fee award for these

reasons. Consequently, we affirm the attorneys’ fees awarded in this case.27

IV. CONCLUSION

Giving due deference to the district court’s decision and the jury’s verdict,

we find no reversible error in this case other than the naming of non-liable

parties in the judgment. Therefore, we REVERSE IN PART and REMAND with

instructions to remove the non-liable defendants from the judgment. However,
No. 07-30443

48

we AFFIRM the remainder ofthe district court’s judgment. Costs shall be borne

by Defendants.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.