2:23-cv-06897•Flanks v. City of New Orleans et al
Full text
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA RAYMOND FLANKS VERSUS THE CITY OF NEW ORLEANS et al. CIVIL ACTION NO. 23-6897 SECTION: “G”(4) ORDER AND REASONS This litigation arises from Plaintiff Raymond Flanks’s (“Plaintiff”) wrongful conviction for first-degree murder in 1985. Plaintiff names as Defendants the City of New Orleans; Jason Williams, in his official capacity as Orleans Parish District Attorney; Anne Kirkpatrick, in her official capacity as Superintendent of the New Orleans Police Department; John Dillmann, in his individual capacity; and John/Jane Does #1-20 in their individual capacities.1 Plaintiff brings a claim against Jason Williams in his official capacity as the District Attorney for Orleans Parish (“Williams”) under Monell v. Department of Social Services of the City of New York.2 Plaintiff alleges the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence in violation of OPDA’s obligations under Brady v. Maryland.3 Before the Court is Williams’s Motion for Summary Judgment.4 Williams does not move for summary judgment on the issue of whether a Brady violation occurred.5 Even assuming that a 1 See Rec. Doc. 27. 2 Id. at 51. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). 3 Rec. Doc. 27 at 4–5. See Brady v. Maryland, 373 U.S. 83 (1963). 4 Rec. Doc. 66. 5 Rec. Doc. 66-1 at 2. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 1 of 46
2 Brady violation occurred, Williams argues that Plaintiff’s claims against OPDA still fail because Plaintiff cannot present competent evidence to show: (1) that OPDA’s policymaker, then District Attorney Harry Connick (“Connick”), adopted and implemented an unconstitutional policy concerning Brady disclosures; (2) that Connick acted with deliberate indifference to the rights of criminal defendants; or (3) that Connick’s conduct directly caused the alleged suppression of evidence in Plaintiff’s criminal case.6 Plaintiff opposes the motion, arguing that he has put forth sufficient evidence to support Monell liability under three distinct theories.7 For the reasons discussed in more detail below, there are facts in dispute precluding summary judgment on the Monell claim brought against Williams. Plaintiff has not presented sufficient evidence to show that OPDA maintained an official policy in violation of Brady. However, the amount and similarity of Brady violations occurring under Connick’s tenure, combined with other circumstantial evidence of a pervasive culture of indifference to Brady, is sufficient for a reasonable juror to conclude there was a custom of withholding exculpatory witness testimony within OPDA and that Connick had constructive and/or actual notice of the practice. The same facts are enough for a reasonable juror to find OPDA failed to train, supervise, and discipline its employees regarding their obligations under Brady, and that these failures amounted to deliberate indifference to the “known or obvious” risk that criminal defendants’ rights would be violated. A reasonable juror could also find that the custom of Brady violations was the moving force behind Plaintiff’s claimed constitutional violation. Accordingly, having considered the motion, the memoranda in support and opposition, the record, and the applicable law, the Court denies the motion. 6 Id. at 2–6. 7 Rec. Doc. 91. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 2 of 46
3 I. Background In May 1985, a jury found Plaintiff guilty of first-degree murder in the death of Martin Carnesi (“Mr. Carnesi”).8 This was Plaintiff’s second trial after the first trial in August 1984 resulted in a mistrial when the jury was unable to reach a verdict.9 At both trials, Mr. Carnesi’s wife, Faye Carnesi (“Mrs. Carnesi”), testified to the circumstances of her husband’s death, including identifying Plaintiff as the suspect who shot her husband.10 According to the Amended Complaint, Mr. Carnesi was shot by the Actual Perpetrator (“Actual Perpetrator”) on December 17, 1983, in a robbery gone wrong.11 At the time, Mr. Carnesi was walking Mrs. Carnesi to her car that was parked in front of their home.12 After Mr. Carnesi was shot, Mrs. Carnesi threw her purse at the Actual Perpetrator and ran away.13 Initially, Mrs. Carnesi represented that the Actual Perpetrator was a Black man in his late twenties, about 5’10” and 150 pounds, with a medium build, brown skin, and a light mustache.14 Mrs. Carnesi also reported that the Actual Perpetrator was wearing a shower cap and sped off in an aged, light blue car.15 Approximately a week after the crime, NOPD detectives, including Dillmann, visited Mrs. Carnesi at her home and showed her a photo lineup for identification.16 Mrs. Carnesi narrowed it 8 Rec. Doc. 27 at 12–13. 9 Id. at 11–12. 10 Id. at 12–13. 11 Id. at 8–9. 12 Id. at 9. 13 Id. 14 Id. 15 Id. 16 Id. at 11. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 3 of 46
4 down to two photos, Plaintiff and one other individual.17 Dillmann then suggested to Mrs. Carnesi that Plaintiff was the perpetrator.18 Mrs. Carnesi testified before the grand jury and identified Plaintiff as the perpetrator, based on her identification of him when Dillmann suggested that Plaintiff was the perpetrator.19 Mrs. Carnesi testified that the Actual Perpetrator had a “little white blotch on the side of his cheek, a little white mark, like discolored looking,” but rationalized her selection of Plaintiff from the photo lineup because she “didn’t think they showed the side of his face with that mark in the photo.”20 Plaintiff’s first trial began on August 28, 1984.21 Mrs. Carnesi identified Plaintiff and testified that the car he was arrested in resembled the car she saw fleeing the scene.22 OPDA prosecutors also presented testimony from an NOPD technician who testified that Mr. Carnesi was shot with the same gun as the gun in Plaintiff’s possession.23 This first trial resulted in a hung jury.24 After the first trial, the Bureau of Alcohol, Tobacco, and Firearms conducted independent ballistics testing and determined that neither the bullets used to kill Mr. Carnesi nor the casing found at the scene matched Plaintiff’s gun.25 At the second trial, Mrs. Carnesi testified that she 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. at 12. 23 Id. 24 Id. 25 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 4 of 46
5 “knew ‘it was him’” and also testified that Dillmann did not suggest to her who to identify during the photo lineup.26 The jury returned a guilty verdict for first-degree murder at this second trial.27 Nearly 37 years later, on November 17, 2022, Plaintiff’s first-degree murder conviction was vacated.28 At the November 17, 2022 exoneration hearing, the “OPDA stated that ‘the State agrees that Mr. Flank’s [sic] conviction was obtained in violation of Brady v. Maryland’ because ‘the State failed to disclose … materials [that] are favorable, and under circumstances of the State’s case against Mr. Flank[s], material.’”29 Plaintiff notes OPDA specifically “acknowledged that ‘there is a reasonable likelihood that had [Mrs. Carnesi’s] prior testimony been disclosed, it could have affected the judgment of the jury’ and ‘defense counsel would have been able to present a compelling case that Mrs. Carnesi was innocently mistaken when presented with the wrong suspect, that Mr. Flank[s] did not resemble[] the perpetrator, and that the car he was arrested in did not fit the one at the crime scene.’”30 Plaintiff brings a Monell claim against Williams in his official capacity as the District Attorney for Orleans Parish.31 Plaintiff alleges that “throughout the 1970s, 1980s, and 1990s, OPDA maintained policies and customs that promoted, facilitated, and condoned misconduct by prosecutors and other OPDA employees and agents, including concerning the suppression of exculpatory and favorable evidence to criminal defendants and their counsel.”32 Plaintiff further 26 Id. 27 Id. at 13. 28 Id. at 14. 29 Id. 30 Id. 31 Id. at 51. 32 Id. at 19. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 5 of 46
6 alleges OPDA’s policymakers maintained a policy, custom, or pattern and practice of condoning official misconduct, including by failing to train, supervise, and discipline prosecutors.33 According to Plaintiff, because he and his counsel “were not aware of the NOPD records showing inconsistencies between Mrs. Carnesi’s initial description of the Actual Perpetrator and Mr. Flanks’s appearance, the NOPD records showing a string of similar crimes with a consistently described perpetrator, or Mrs. Carnesi’s grand jury testimony regarding the photo array and her initial identification of Mr. Flanks,” this exculpatory material was unusable at trial.34 On January 18, 2024, Williams filed his first motion to dismiss.35 This Court denied the motion without prejudice, granting leave to Plaintiff to amend the Complaint to “clarify certain issues so that the Court has the information it needs to analyze whether Plaintiff has sufficiently plead a Monell claim against Defendant Williams.”36 Plaintiff filed an Amended Complaint on June 4, 2024.37 Williams then filed a Second Motion to Dismiss for Failure to State a Claim on June 18, 2024.38 On February 28, 2025, the Court denied the motion.39 33 Id. at 15. 34 Id. at 13. 35 Rec. Doc. 15. 36 Rec. Doc. 26 at 27. 37 Rec. Doc. 27. 38 Rec. Doc. 28. 39 Rec. Doc. 44. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 6 of 46
7 On September 30, 2025, Williams filed the instant Motion for Summary Judgment.40 On October 24, 2025, Plaintiff filed an opposition to the motion.41 On November 4, 2025, Williams filed a reply brief in further support of the motion.42 II. Parties’ Arguments A. Williams’s Arguments in Support of the Motion for Summary Judgment Williams does not move for summary judgment on the issue of whether a Brady violation occurred.43 Surprisingly, considering that his office joined in the motion to vacate Plaintiff’s conviction, Williams asserts he will present evidence at trial to show that there is no evidence known to the State that materially undermines Mrs. Carnesi’s identification of Plaintiff as the perpetrator.44 Nevertheless, even assuming that a Brady violation occurred, Williams argues that Plaintiff’s claims against OPDA still fail because Plaintiff cannot present competent evidence to show: (1) that Connick adopted and implemented an unconstitutional policy concerning Brady disclosures; (2) that Connick acted with deliberate indifference to the rights of criminal defendants; or (3) that Connick’s conduct directly caused the alleged suppression of evidence in Plaintiff’s criminal case.45 Williams argues there is no evidence that OPDA had a facially unconstitutional Brady policy, and the evidence does not show that Connick was on notice of a pervasive practice or 40 Rec. Doc. 66. 41 Rec. Doc. 91. 42 Rec. Doc. 103. 43 Rec. Doc. 66-1 at 2. 44 Id. 45 Id. at 2–6. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 7 of 46
8 custom in his office that caused repeated Brady violations.46 Williams submits that the only Brady violations relevant in showing actual or constructive notice to Connick are those that resulted in court findings before Plaintiff’s conviction in May 1985.47 Considered in the context of the number of cases prosecuted, Williams asserts the Brady violations identified by Plaintiff would not have put Connick on notice of a problem with his office’s policies.48 Williams also asserts Plaintiff cannot prove that there were enough “very similar” Brady violations before his conviction to provide adequate notice.49 Williams argues that none of the alleged Brady violations before Plaintiff’s conviction involved failure to disclose grand jury testimony that was favorable to the defense.50 Williams submits that Plaintiff cannot carry his evidentiary burden of proving that prior Brady rulings were sufficiently similar to actually give Connick fair notice of the defects in OPDA’s policies that led to a Brady violation in Plaintiff’s case.51 Assuming that Plaintiff can show Connick was on notice of a pattern, Williams submits the evidence does not show Connick acted with deliberate indifference.52 Instead, Williams argues OPDA’s official policies and practices were reasonably calculated to ensure that Brady evidence was identified and disclosed to the defense.53 Williams presents a declaration of Diane Major, who 46 Id. at 9. 47 Id. at 10–12. 48 Id. at 12–13. 49 Id. at 17. 50 Id. 51 Id. at 18–19. 52 Id. at 19. 53 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 8 of 46
9 was employed by OPDA from 1976 through at least 1988 as the grand jury reporter.54 Mrs. Major attests that OPDA policy required her to prepare transcripts of all lay witnesses who testified before the grand jury in indicted cases and make those transcripts available to the prosecutors who would be trying the case.55 Williams also presents the declaration of Judge Dennis Waldron, who served in various positions at OPDA until 1982, who confirmed that trial prosecutors were required to review the grand jury transcripts for potentially exculpatory material that would need to be disclosed to the defense.56 Additionally, Williams presents deposition testimony of various former prosecutors who all testified that OPDA held weekly conferences, where one purpose was to ascertain what discovery had been provided in the case and whether the State had satisfied its Brady obligations.57 Williams asserts it is not enough for Plaintiff to show that more, or better, training might have prevented the alleged constitutional violation.58 Instead, Williams argues that Plaintiff must prove Connick was on notice “that a particular omission in [OPDA’s] training program causes . . . employees to violate citizens’ constitutional rights.”59 Finally, Williams argues that Plaintiff cannot prove the “moving force” causation element because there is no evidence that the prosecutors who handled his case were acting pursuant to an unconstitutional policy.60 According to Williams, there is no evidence that the prosecutors who handled Plaintiff’s criminal case were following any specific policy causing suppression of 54 Id. 55 Id. 56 Id. at 20. 57 Id. at 20–21. 58 Id. at 21. 59 Id. (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). 60 Id. at 22. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 9 of 46
10 exculpatory evidence—much less a policy that was intended to prevent disclosure of exculpatory evidence.61 Moreover, Williams contends there is no evidence that the prosecutors were trained or instructed in ways that caused them to misunderstand their Brady obligations or otherwise fail to comply with them.62 B. Plaintiff’s Arguments in Opposition to Motion for Summary Judgment In opposition, Plaintiff begins by arguing that his claim goes well beyond the theory rejected by the Supreme Court in Thompson.63 Plaintiff argues that he has put forth sufficient evidence to support Monell liability under three distinct theories: (1) OPDA maintained unconstitutional policies by (a) using an improperly narrow definition of constitutional disclosure obligations, and (b) maintaining a system for assigning and reassigning cases in a manner that compartmentalized information and concealed exculpatory information even from prosecutors; (2) OPDA maintained an unconstitutional custom driven by a ‘pervasive culture of indifference to Brady’; and (3) Harry Connick, having knowledge of multiple instances in which prosecutors suppressed material exculpatory evidence and presented false testimony, fostered practices constituting deliberate indifference toward Brady violations.64 First, Plaintiff argues a reasonable juror could conclude that OPDA maintained a policy, custom, and practice of permitting, encouraging, and condoning Brady violations.65 Plaintiff contends the evidence shows that OPDA instructed prosecutors to follow an improperly restrictive 61 Id. 62 Id. 63 Rec. Doc. 91 at 4. 64 Id. at 13. 65 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 10 of 46
11 interpretation of their Brady obligations.66 Plaintiff submits that the jury should resolve the contradictory evidence on the training prosecutors received regarding their Brady obligations.67 Plaintiff also asserts a reasonable juror could conclude that OPDA’s system for case assignment and reassignment guaranteed Brady violations.68 Plaintiff submits that OPDA’s policies made Brady violations inevitable by siloing the information learned by “screeners” (the prosecutors who first evaluated cases, made charging decisions, and conducted grand jury presentations) from the prosecutors who would try criminal cases.69 Plaintiff cites evidence to show that screeners were not required to document witnesses’ statements or communicate any statements to the trial prosecutor.70 Plaintiff asserts that this system guaranteed that prosecutors who tried the case were not even required to know the substance of statements made to other prosecutors.71 Plaintiff contends this problem was particularly acute regarding grand jury proceedings, and he contends that OPDA’s witnesses gave conflicting testimony regarding what testimony was transcribed and what transcripts were provided to trial prosecutors.72 Plaintiff argues that this dysfunctional policy is especially relevant here, where both trial prosecutors claim they were unaware of Mrs. Carnesi’s grand jury testimony.73 66 Id. 67 Id. at 15–16. 68 Id. at 16. 69 Id. 70 Id. 71 Id. 72 Id. at 16. 73 Id. at 17. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 11 of 46
12 Second, Plaintiff asserts a reasonable juror could conclude that OPDA maintained an unconstitutional custom driven by a pervasive culture of indifference to Brady.74 Plaintiff claims “that prosecutors were so widely permitted to violate Brady, and violated Brady so often and with such brazenness, that OPDA effectively adopted a policy of permitting and encouraging such violations.”75 Plaintiff states his expert, Laurie Levenson, has identified 57 cases over a period of 45 years in which a court found that OPDA’s nondisclosure of material exculpatory evidence violated the defendant’s constitutional rights, 22 of which occurred in the 18 years prior to Plaintiff’s conviction.76 Plaintiff also cites testimony from former OPDA prosecutors that a saying around the office was, “it’s not Brady if the defense doesn’t know about it.”77 Plaintiff contends that Connick adamantly opposed open discovery and specifically instructed prosecutors not to disclose information that was not required to be disclosed by law.78 Plaintiff asserts the Brady policy adopted by Connick in 1987 was wholly inaccurate, inadequate, and misleading.79 Plaintiff asserts he has also provided evidence of “very similar violations,” including instances where the state did not disclose prior inconsistent statements of eyewitnesses, the fact that a witness testified falsely, police reports and/or notes containing Brady material, evidence that the defendant did not match the perpetrator’s characteristics or description, evidence of police or prosecutorial misconduct, and evidence of similar crimes committed by someone else.80 Plaintiff 74 Id. 75 Id. at 18. 76 Id. at 18–19. 77 Id. at 19. 78 Id. 79 Id. 80 Id. at 20. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 12 of 46
13 contends that OPDA has not explained what cases it believes are not sufficiently similar.81 Plaintiff asserts Brady violations that pre-date his conviction and later came to light are relevant and probative to show the practices and customs at OPDA during the time period before and during his criminal proceedings.82 Third, Plaintiff contends that a reasonable juror could conclude that Connick fostered practices constituting deliberate indifference toward Brady violations.83 Plaintiff asserts that the evidence demonstrating that OPDA failed to train, supervise, and discipline its employees regarding their obligations under Brady and that these failures amounted to deliberate indifference to the “known or obvious” risk that criminal defendants’ rights would be violated.84 Plaintiff points to the evidence discussed above: (1) evidence regarding the widespread and persistent nature of Brady violations by OPDA in the 1970s and 1980s; (2) evidence of training, comments, and attitudes within the office indicating a pervasive disregard for and misunderstanding of Brady; and (3) numerous specific examples of other documented instances of such violations.85 Plaintiff argues that Williams’s evidence regarding the statistical likelihood of a Brady violation occurring is unpersuasive.86 Unlike excessive force claims, Plaintiff contends that Brady claims involve concealed action (or inaction) for which there may be no documentation at all.87 Plaintiff argues if the number of Brady violations in Orleans Parish—“the most incarcerated city in the world and 81 Id. 82 Id. at 21. 83 Id. 84 Id. 85 Id. at 22. 86 Id. at 23. 87 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 13 of 46
14 the city with the highest number of exonerations,” and “ground zero for unfairness in the criminal legal system,”—is insufficient, then it is difficult to see how any plaintiff could ever establish Monell liability based on Brady violations.88 Finally, Plaintiff argues that OPDA’s policies were the moving force behind Plaintiff’s injuries.89 Plaintiff submits OPDA is incorrect that there is not any evidence that the prosecutors in his criminal case were trained or instructed in ways that caused them to misunderstand their Brady obligations.90 Plaintiff contends that the prosecutors’ accounts differ as to: (1) whether grand jury transcripts were provided to trial prosecutors; (2) what police records should have been provided to the prosecutor and the defense; and (3) whether Brady-specific training was provided to prosecutors in the years leading up to Plaintiff’s criminal conviction.91 C. Williams’s Further Arguments in Support of the Motion for Summary Judgment In reply, Williams argues that the statements on OPDA’s website regarding a high number of exonerations does not suggest that OPDA had an unconstitutional Brady policy.92 Williams contends that Plaintiff misrepresents the testimony of former prosecutor Jim Williams, on which Plaintiff relies to show that OPDA had an official policy of complying only with the Louisiana Code of Criminal Procedure and ignoring Brady.93 While Jim Williams explained that defendants were not routinely given discovery beyond what they were entitled to under the Louisiana Code 88 Id. at 24 (quoting Deliver Justice, OPDA, https://orleansda.com/ourwork/deliver-justice). 89 Id. at 25. 90 Id. 91 Id. at 26. 92 Rec. Doc. 103 at 2–3. 93 Id. at 3–4. Jim Williams is referred to by his full name throughout this Order to distinguish from Defendant Jason Williams. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 14 of 46
15 of Criminal Procedure, Williams submits that Jim Williams’s testimony leaves no doubt that he understood that defendants were also entitled to Brady material.94 Williams contends there is no evidence that OPDA had unconstitutional policies concerning assignments of cases and taking notes of witness interviews.95 According to Williams, Plaintiff has not identified anything that might have put Connick on notice that OPDA’s policies with respect to grand jury testimony were inadequate to protect the rights of criminal defendants.96 Additionally, Williams submits there is no evidence that OPDA had a “persistent, widespread practice” of withholding exculpatory evidence.97 Williams asserts “withholding exculpatory evidence” describes a result, not a practice, which can occur for a variety of reasons.98 Williams contends that the report of Plaintiff’s expert, Laurie Levenson, should not be considered because it makes unsupported and inaccurate assertions that Brady violations occurred in all of the cases listed.99 Moreover, even if the report is considered, Williams points out that it establishes, at best, two purported Brady violations per year over a 47-year period.100 According to Williams, something that occurs in far less than one percent of cases prosecuted is clearly not a persistent or widespread practice that is so common and well-settled as to be the de facto policy.101 94 Id. at 4. 95 Id. at 6. 96 Id. at 8. 97 Id. 98 Id. 99 Id. at 10–13. 100 Id. at 13. 101 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 15 of 46
16 Williams contends that Plaintiff has not produced evidence showing Connick acted with deliberate indifference.102 Williams argues that Plaintiff’s attempt to distinguish Verastique on the ground that police excessive force incidents are known and obvious, whereas Brady violations are hidden is both questionable as a factual matter and irrelevant.103 Williams points out that nothing in Verastique suggests that the analysis pertains only to certain types of Monell claims.104 Regardless of whether constitutional violations are apparent and easily discovered or concealed, Williams points out that the law does not permit municipalities to be held liable under Section1983 unless their policymakers have acted with deliberate indifference.105 Finally, Williams asserts that Plaintiff has not produced evidence showing OPDA’s allegedly unconstitutional policies caused the Brady violation in his case.106 Williams contends that Plaintiff has not even tried to explain how OPDA’s official policies caused the prosecutors handling his criminal case to fail to disclose purported Brady evidence.107 Additionally, Williams argues that Plaintiff has not explained the specific alleged deficiencies in OPDA’s training and how the Brady violation in his case would have been avoided with better training on those issues.108 102 Id. at 14. 103 Id. at 15. 104 Id. 105 Id. 106 Id. at 16. 107 Id. at 17. 108 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 16 of 46
17 III. Legal Standard A. Motion for Summary Judgment Summary judgment is appropriate when the pleadings, discovery, and affidavits demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”109 To decide whether a genuine dispute as to any material fact exists, the court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”110 All reasonable inferences are drawn in favor of the nonmoving party.111 Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”112 If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a matter of law.113 The nonmoving party may not rest upon the pleadings.114 Instead, the nonmoving party must identify specific facts in the record and articulate the precise manner in which that evidence establishes a genuine issue for trial.115 The party seeking summary judgment always bears the initial responsibility of showing the basis for its motion and identifying record evidence that demonstrates the absence of a genuine 109 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 110 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). 111 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at 150). 112 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075. 113 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of Ariz. v. Cites Serv. Co., 391 U.S. 253, 289 (1968)). 114 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 115 See id.; Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 17 of 46
18 issue of material fact.116 “To satisfy this burden, the movant may either (1) submit evidentiary documents that negate the existence of some material element of the opponent’s claim or defense, or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at trial, demonstrate that the evidence in the record insufficiently supports an essential element of the opponent’s claim or defense.”117 If the moving party satisfies its initial burden, the burden shifts to the nonmoving party to “identify specific evidence in the record, and to articulate” precisely how that evidence supports the nonmoving party’s claims.118 The nonmoving party must set forth “specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case.”119 The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”120 Moreover, the nonmoving party may not rest upon mere allegations or denials in its pleadings.121 B. Monell Claim To prevail on a Monell claim, a plaintiff must show “(1) an official policy (or custom), (2) that a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional 116 Celotex Corp., 477 U.S. at 323. 117 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (internal citation omitted). 118 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). 119 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). 120 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted). 121 Morris, 144 F.3d at 380. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 18 of 46
19 violation whose moving force is that policy (or custom).”122 “Official policy is ordinarily contained in duly promulgated policy statements, ordinances or regulations.”123 But a custom can be evidenced by a “ “widespread” practice of officials or employees that, while not officially adopted or promulgated, is “so common and well-settled as to constitute a custom that fairly represents municipal policy.”124 “[E]ven a facially innocuous policy will support liability if it was promulgated with deliberate indifference to the known or obvious consequences that constitutional violations would result.”125 To prove deliberate indifference, a “showing of simple or even heightened negligence will not suffice.”126 Instead, “Courts of Appeals have routinely equated deliberate indifference with recklessness.”127 Plaintiff must additionally demonstrate actual or constructive knowledge of the official policy or custom and that the constitutional violation’s “moving force” is that policy or custom.128 Whether the moving force behind the constitutional violation is policy or custom is proved by a “direct causal link between the municipal policy and the constitutional deprivation.”129 122 Moore v. LaSalle Mgmt. Co., L.L.C., 41 F.4th 493, 509 (5th Cir. 2022) (internal citations and quotations omitted). 123 Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001). 124 Vardeman v. City of Houston, 55 F.4th 1045, 1052 (5th Cir. 2022). 125 Piotrowski, 237 F.2d at 579 (emphasis added). 126 Board of Cnty. Com'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 407 (1997). 127 Farmer v. Brennan, 511 U.S. 825, 836 (1994) (collecting cases). 128 Piotrowski, 237 F.2d at 579. 129 Id. at 580. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 19 of 46
20 IV. Analysis This case centers around a prosecutor’s duty to disclose evidence to the defense. In Brady v. Maryland, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused [] violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”130 The prosecutor’s duty to provide favorable evidence includes impeachment evidence and exculpatory evidence.131 The prosecutor’s duty to disclose evidence includes both evidence in its own possession and any other “favorable evidence known to the others acting on the government’s behalf in the case, including the police.”132 “[T]he duty to disclose such evidence is applicable even though there has been no request by the accused.”133 To prevail on a Brady claim, a criminal defendant must show: (1) the prosecutor suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material to guilt or punishment.134 Williams does not move for summary judgment on the issue of whether a Brady violation occurred.135 Even assuming that a Brady violation occurred, Williams argues that Plaintiff’s claims against OPDA still fail because Plaintiff cannot present competent evidence to show: (1) that Connick adopted and implemented an unconstitutional policy concerning Brady disclosures; (2) that Connick acted with deliberate indifference to the rights of criminal defendants; or (3) that 130 Brady, 373 U.S. at 87. 131 United States v. Bagley, 473 U.S. 667, 676 (1985). 132 Kyles v. Whitley, 514 U.S. 419, 437 (1995). 133 Strickler v. Greene, 527 U.S. 263, 279 (1999). 134 Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005) (citing Brady, 373 U.S. at 87). 135 Rec. Doc. 66-1 at 2. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 20 of 46
21 Connick’s conduct directly caused the alleged suppression of evidence in Plaintiff’s criminal case.136 The Court considers each of these arguments in turn. A. Whether Plaintiff has Presented Evidence upon which a Reasonable Juror Could Conclude that OPDA Maintained a Policy, Custom or Practice of Permitting Brady Violations To succeed on a Monell claim, Plaintiff must present facts to establish Connick had actual or constructive knowledge of an official policy, practice, or custom of similar constitutional violations. Plaintiff argues that he has put forth sufficient evidence to support Monell liability under three distinct theories: (1) OPDA maintained unconstitutional policies by (a) using an improperly narrow definition of constitutional disclosure obligations, and (b) maintaining a system for assigning and reassigning cases in a manner that compartmentalized information and concealed exculpatory information even from prosecutors; (2) OPDA maintained an unconstitutional custom driven by a ‘pervasive culture of indifference to Brady’; and (3) Harry Connick, having knowledge of multiple instances in which prosecutors suppressed material exculpatory evidence and presented false testimony, fostered practices constituting deliberate indifference toward Brady violations.137 Establishing an official policy, practice, or custom can be done in one of three ways. First, there may be a policy that is “officially adopted and promulgated” by the municipality or an official within the municipality with policymaking authority.138 Second, there may be a “persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.”139 A persistent, widespread practice may include allegations that a 136 Id. at 2–6. Williams does not dispute that Connick was a policymaker. 137 Rec. Doc. 91 at 13. 138 Burge v. Par. of St. Tammany (Burge II), 336 F.3d 363, 369 (5th Cir. 2003). 139 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 21 of 46
22 policymaker failed to act affirmatively, “if the need to take some action to control the agents of the local governmental entity ‘is so obvious, and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights, that the policymake[r] … can reasonably be said to have been deliberately indifferent to the need.’”140 A policymaker with policy-making authority must have actual or constructive knowledge of the custom.141 Third, “a single decision by a policy maker may, under certain circumstances, constitute a policy for which a municipality may be liable.”142 In this case, Plaintiff argues that there is evidence to support a Monell claim under the first and second options.143 1. Official Policy Plaintiff asserts that OPDA maintained two official unconstitutional policies: (1) using an improperly narrow definition of constitutional disclosure obligations and (2) maintaining a system for assigning and reassigning cases in a manner that compartmentalized information and concealed exculpatory information even from prosecutors.144 a. Alleged Policy of Instructing Prosecutors to Adopt an Improperly Narrow Definition of Brady Plaintiff relies on statements by two of the prosecutors in his case, Jim Williams and Bruce Whittaker, to argue that “OPDA instructed prosecutors to follow an improperly restrictive 140 Burge v. Par. of St. Tammany (Burge I), 187 F.3d 452, 471 (5th Cir. 1999) (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). 141 Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010) (internal citations omitted). 142 Id. (quoting Brown v. Bryan Cnty., OK, 219 F.3d 450, 462 (5th Cir. 2000)). 143 Plaintiff does not assert a theory of “single-incident liability,” a path foreclosed in the Brady context by the Supreme Court’s opinion in Thompson, 563 U.S. at 62–72. 144 Rec. Doc. 91 at 13. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 22 of 46
23 interpretation of their Brady obligations.”145 Plaintiff argues that this testimony suggests that OPDA had an official policy of complying with only the Louisiana Code of Criminal Procedure and ignoring the constitutional requirements of Brady. Williams contends this is an unfair characterization of the testimony.146 During a deposition taken in the Thompson case, Jim Williams testified it was Connick’s policy not to turn over witness statements.147 Jim Williams stated this policy was consistent with the Louisiana Code of Criminal Procedure, and prosecutors “were instructed to follow what the rules of the Louisiana Code of Criminal Procedure were.”148 Jim Williams also testified that “if a witness got up on the stand and testified in a way that was inconsistent with his prior sworn statement,” he would “absolutely” have to disclose that to the defense or it would be “a violation of the Brady decision.”149 He testified that “Mr. Connick expected that all the attorneys who worked for him knew what Brady was and they knew what it meant, and that they knew that if there was Brady material, then it’s—you were duty bound to turn it over.”150 He stated that if “evidence was potentially favorable to the defense but would not, in and of itself, exculpate the defense,” he was obligated to disclose it to the defense.151 He explained that he typically would not produce a copy of a supplemental police report to the defense “unless . . . the report contained 145 Id. 146 Rec. Doc. 103 at 3–6. 147 Rec. Doc. 91-33 at 97–98. 148 Id. at 98–99. 149 Id. at 99. 150 Id. at 113. 151 Id. at 193. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 23 of 46
24 Brady material.”152 Jim Williams further testified that OPDA did not disclose witness statements and police reports to criminal defendants in the 1980s “on a routine basis.”153 On October 16, 2025, Jim Williams was deposed again in reference to this case. During his recent deposition, Jim Williams testified that he could not recall ever having disclosed supplemental reports, “dailies,” or grand jury testimony in any case.154 He further testified that he did not discuss Brady obligations with other assistant prosecutors or supervisors when preparing for trial: We knew what our responsibilities were. So . . . using those words in that fashion, no, that wouldn’t have been done. I mean, we knew. And when we would talk about a problem, we wouldn’t say, you know, hey Joe, I’ve got a Brady problem here. It would be, “hey, Joe, look, this witness, you know, is recanting their story; they’re now telling a different story.” We wouldn’t say, “we’ve got a Brady problem; this is our problem.” It would––and that would––could in effect have been a Brady problem.155 Plaintiff also relies on an affidavit of Bruce Whittaker (“Whittaker”) to argue that “[p]rosecutors were . . . told that grand jury testimony was always confidential and not to be disclosed, making no exception for Brady information.”156 Whittaker attests “it would not be normal to have transcripts of grand jury testimony available when trying a case.”157 Although he knew that grand jury proceedings were recorded, it was his understanding that they were not routinely transcribed as the testimony was “confidential.”158 152 Id. at 107. 153 Id. at 171. 154 Rec. Doc. 91-38 at 95–96. 155 Id. at 126–27. 156 Rec. Doc. 91 at 14. 157 Rec. Doc. 91-8 at 2. 158 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 24 of 46
25 Whittaker was subsequently asked in his deposition what he would have done if he had encountered exculpatory material in grand jury testimony, and he explained: If I found exculpatory evidence or was aware that we possessed exculpatory evidence, I would turn it over to the defense. If it was a grand jury, you mentioned showing it to the judge, I might have had some hesitation because of the confidential nature of it. But I either would’ve turned it over or I would’ve consulted with someone in the office or I would’ve talked to the judge about it. . . . I was well aware that despite the confidentiality of grand jury material, . . . exculpatory evidence had to be turned over. I just would’ve wondered, how do I do this without screwing up.159 Viewing this evidence in the light most favorable to Plaintiff, he has not demonstrated that OPDA had an official policy of instructing prosecutors to adopt an inappropriately narrow definition of their constitutional disclosure obligations under Brady. A review of the testimony as a whole does not support Plaintiff’s argument that prosecutors were instructed to ignore their Brady obligations and follow a more limited disclosure obligation under Louisiana state law. Jim Williams explained that defendants were not routinely given discovery beyond what they were entitled to under the Louisiana Code of Criminal Procedure. Nevertheless, Jim Williams’s testimony leaves no doubt that he understood that defendants were also entitled to Brady material. While Whittaker’s affidavit suggests that grand jury testimony was “confidential,” it does not say whether or not “confidential” grand jury testimony was disclosed when it contained Brady material. Moreover, Whittaker’s subsequent deposition testimony suggests that he would have understood that Brady material found in grand jury testimony would need to be disclosed. Therefore, Plaintiff has not presented any competent summary judgment evidence to support his argument that OPDA had an official policy of instructing prosecutors to adopt an inappropriately narrow definition of their constitutional disclosure obligations under Brady. 159 Rec. Doc. 91-44 at 143–44. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 25 of 46
26 b. Alleged Policy for Case Assignment and Reassignment Plaintiff also argues that OPDA had an unconstitutional Brady policy because the prosecutors who screened cases to determine whether they should be accepted for prosecution were typically not the same prosecutors who brought the cases to trial, and the screening prosecutors were not required to document all statements made to them by witnesses during interviews and relay those statements to the trial prosecutors.160 To support this argument, Plaintiff cites deposition testimony from a former prosecutor, Timothy McElroy (“McElroy”). According to McElroy, when screening prosecutors interviewed witnesses, they were neither required to document any witness’s statement nor required to communicate to the trial prosecutor the substance of any witness’s statement.161 McElroy also recognized that “what constitutes Brady information can evolve over the lifespan of a case.”162 Despite this recognition, Plaintiff argues that OPDA’s system guaranteed that the prosecutors who tried a case were not even required to know the substance of their witnesses’ statements to other prosecutors.163 Plaintiff contends this dysfunctional policy is especially relevant to the Brady violation at issue here because both trial prosecutors testified they were unaware of Mrs. Carnesi’s grand jury testimony.164 Plaintiff must show either that “‘the policy itself was unconstitutional’” or that “‘[the policy] was adopted with deliberate indifference to the known or obvious fact’ that a specific 160 Rec. Doc. 91 at 16. 161 Rec. Doc. 91-39 at 211–12. 162 Id. at 242. 163 Rec. Doc. 91 at 16. 164 Id. at 17. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 26 of 46
27 constitutional violation would follow.”165 Plaintiff has not demonstrated that the policy of assigning prosecutors to screen cases was facially unconstitutional. “[A] written policy is not facially unconstitutional just because it leaves out detailed guidance that might have averted a constitutional violation.”166 “In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city ‘could have done’ to prevent the unfortunate incident.”167 “An official, written policy is ‘itself’ unconstitutional only if it affirmatively allows or compels unconstitutional conduct.”168 The screening policy does not affirmatively allow or compel prosecutors to violate Brady. Therefore, Plaintiff has not demonstrated that the policy is facially unconstitutional. Additionally, Plaintiff has not produced any evidence that Connick approved an official policy directing screening prosecutors not to take notes of witness interviews. Instead, Plaintiff appears to challenge the lack of an official policy requiring screeners to document witness communications. “Liability for failure to promulgate policy . . . require[s] that the defendant acted with deliberate indifference.”169 “A failure to adopt a policy can be deliberately indifferent when it is obvious that the likely consequences of not adopting a policy will be a deprivation of constitutional rights.”170 Plaintiff has not demonstrated that Brady violations were a likely consequence of OPDA failing to adopt a policy requiring screening prosecutors to take notes. 165 Edwards v. City of Balch Springs, Tex., 70 F.4th 302, 308 (5th Cir. 2023) (quoting Liggins v. Duncanville, Tex., 52 F.4th 953, 955 (5th Cir. 2022)). 166 Id. at 310. 167 City of Canton, 489 U.S. at 392. 168 Edwards, 70 F.4th at 309 (citing Doe v. United States, 831 F.3d 309, 318 (5th Cir. 2016)). 169 Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011). 170 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 27 of 46
28 Plaintiff does not cite any jurisprudence suggesting that the Constitution requires prosecutors to document all interactions with witnesses. Therefore, Plaintiff has not presented any competent summary judgment evidence to support his argument that OPDA’s policy of case assignments and reassignments guaranteed Brady violations. 2. Persistent, Widespread Practice or Custom Plaintiff also argues that OPDA had “a persistent, widespread practice’ of withholding exculpatory evidence . . . that was ‘so common and well settled as to constitute a custom that fairly represents municipal policy.”171 Plaintiff claims “that prosecutors were so widely permitted to violate Brady, and violated Brady so often and with such brazenness, that OPDA effectively adopted a policy of permitting and encouraging such violations.”172 In response, Williams asserts “withholding exculpatory evidence” describes a result, not a practice, which can occur for a variety of reasons.173 Williams contends that Plaintiff has failed to explain what practice caused exculpatory evidence to be repeatedly withheld.174 Williams does not cite any caselaw to support his contention that “withholding exculpatory evidence” is not a practice. Therefore, the Court rejects that argument. To succeed on this claim, Plaintiff must demonstrate that there was a “persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy,” and proving Connick had actual or constructive knowledge of that 171 Rec. Doc. 91 at 17. 172 Id. at 18. 173 Rec. Doc. 103 at 8. 174 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 28 of 46
29 custom.175 Where an alleged custom or practice “is unconstitutional on its face, it necessarily follows that a policymaker was not only aware of the specific policy, but was also aware that a constitutional violation will most likely occur.”176 However, where the alleged custom or practice “is facially innocuous, establishing the requisite official knowledge requires that a plaintiff establish that [the custom or practice] was ‘promulgated with deliberate indifference to the ‘known or obvious consequences’ that constitutional violations would result.”177 The alleged custom or practice at issue here––withholding exculpatory evidence––is unconstitutional on its face. Therefore, a finding of deliberate indifference is not required. Moreover, even if a finding of deliberate indifference is required, there are facts in dispute that would preclude summary judgment on that issue.178 “A customary policy consists of actions that have occurred for so long and with such frequency that the course of conduct demonstrates the governing body’s knowledge and acceptance of the disputed conduct.”179 A plaintiff must demonstrate “a pattern of abuses that transcends the error made in a single case.”180 Establishing a pattern “requires similarity and specificity; ‘prior indications cannot simply be for any and all bad or unwise acts, but rather must 175 Burge II, 336 F.3d at 369. 176 Id. at 370 (quoting Piotrowski, 237 F.3d at 579). 177 Id. (quoting Piotrowski, 237 F.3d at 579). 178 See Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (“To satisfy the deliberate indifference prong, a plaintiff usually must demonstrate a pattern of violations. . . .’”). As discussed in great detail herein, there is evidence upon which a reasonable juror could rely to find a pattern of similar violations. 179 Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 168 (5th Cir. 2010). 180 Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850–51 (quoting Piotrowski, 237 F.3d at 582). Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 29 of 46
30 point to the specific violation in question.”181 “A pattern also requires ‘sufficiently numerous prior incidents’ as opposed to ‘isolated instances.’”182 Williams argues, to put Connick on notice of similar Brady violations, the convictions in other cases must have been overturned before Plaintiff’s conviction, making many of the cases Plaintiff cites irrelevant to proving notice.183 The Fifth Circuit has recognized that “[a] pattern requires similarity, specificity, and sufficiently numerous prior incidents.”184 Brady violations that pre-date Plaintiff’s conviction, and later came to light are relevant and probative to show the practices and customs at OPDA during the time period before and during Plaintiff’s criminal proceedings. “The fact that similar Brady violations continued unabated in the years after the Brady violation in [Plaintiff’s] case, under the same policymaker, enforcing the same Brady policy, constitutes powerful circumstantial evidence of the unconstitutional policy, practice, or custom in place at OPDA during [Plaintiff’s] prosecution.”185 As this Court found in its prior Order denying Williams’s motion to dismiss, “reversals occurring after a plaintiff’s conviction are relevant in determining if there existed an unconstitutional custom in Connick’s office and if he had actual or constructive notice of it.”186 181 Id. (citation and quotation marks omitted). 182 Id. (citation and quotation marks omitted). 183 See Rec. Doc. 66-1 at 10–12. 184 Davidson v. City of Stafford, 848 F.3d 384, 396 (5th Cir. 2017), as revised (Mar. 31, 2017) (emphasis added). See also Thompson, 563 U.S. at 63 (“[C]ontemporaneous or subsequent conduct cannot establish a pattern of violations that would provide ‘notice to the cit[y] and the opportunity to conform to constitutional dictates.’”). 185 Jones v. Cannizaro, No. 18-503, 2021 U.S. Dist. LEXIS 13312, at *15 (E.D. La. Jan. 21, 2021). 186 Rec. Doc. 44 at 25. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 30 of 46
31 Plaintiff’s expert, Laurie Levenson, has identified 47 cases187 in which a court found that OPDA’s nondisclosure of material exculpatory evidence violated the defendant’s constitutional rights, 22 of which occurred in the 18 years prior to Plaintiff’s conviction.188 Harrick Connick was District Attorney from 1974 to 2003.189 Six of the cases Levenson identifies were tried after 2003.190 Therefore, 41 cases are relevant circumstantial evidence of the unconstitutional policy, practice, or custom in place at OPDA during Plaintiff’s prosecution.191 Levenson also identifies eight additional cases where she finds that OPDA’s conduct amounted to an admission of Brady claims, three of which predate Plaintiff’s conviction; seven additional cases involving credible Brady claims against OPDA that were resolved on other grounds, four of which predate Plaintiff’s conviction; and 22 additional cases in which OPDA has subsequently admitted to a Brady violation, including three that predate Plaintiff’s conviction.192 Williams argues that Levenson’s methodology with respect to these cases is improper. This issue 187 Plaintiff’s opposition references 57 cases. Rec. Doc. 91 at 18. However, Exhibit 1 to the expert report only lists 47 cases. Rec. Doc. 91-4. 188 Rec. Doc 91-4. 189 Rec. Doc 66-1 at 16. 190 John Duncan, Michael Anderson, Christopher Wells, Henry Bruer, Ronald Warner, Robert Jones. The trials of Larry Hudson, Hayes Williams, Linroy Davis, and Roland Gibson pre-date the Connick administration. Because the Brady violations were found during the Connick administration, the Court finds the cases relevant to the issue of whether Connick had actual or constructive notice. 191 Larry Hudson, Hayes Williams, Linroy Davis, Roland Gibson, James Carney, Michael Williams, Arthur Monroe, Norman Clark, Floyd Falkins, Errol Bernard, Gregory Bright, Earl Truvia, Norris Henderson, Calvin Williams, Larry Curtis, Issac Knapper, William Perkins, Ronald Monroe, John Floyd, Reginald Adams, Stephen Rosiere, Curtis Lee Kyles, John Thompson, Erin Hunter, Darryl Washington, Eugene Lindsey, Alvin Jeanmarie, Alfred Oliver, Jerome Morgan, Daniel Rideau, Darnell Lewis, Shareef Cousin, Dan Bright, Dwight Labran, Juan Smith, James Walker, Salvador Perez, David Mahler, Eddie Triplett, Julian Robinson, and George Lee. 192 Rec. Doc. 91-4. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 31 of 46
32 is briefed in a pending motion to exclude Levenson’s testimony. Therefore, the Court does not consider these additional cases at this stage. Of the 41 cases where Levenson represents a court found that OPDA’s nondisclosure of material exculpatory evidence violated the defendant’s constitutional rights, Williams takes issue with the case of George Lee, stating that Lee’s case actually ended in a mistrial.193 Williams also takes issue with the case of James Walker, suggesting that Levenson’s finding of a “Brady violation” appears to be based on comments made by the judge in the middle of a trial.194 Williams states he is not aware of any rulings finding that Walker’s constitutional rights were violated.195 Excluding these two cases, the Court is still left with evidence of Brady violations adjudicated in 39 cases.196 Williams asserts that the evidence establishes, at best, two purported Brady violations per year.197 According to Williams, something that occurs in far less than one percent of cases prosecuted is clearly not a persistent or widespread practice that is so common and well-settled as to be the de facto policy.198 As discussed above, a de facto policy must be a “persistent, widespread 193 Rec. Doc. 103 at 11. Williams also takes issue with the case of Henry Bruer, where the defendant was acquitted at trial. Id. However, the Court has already excluded this case as the trial post-dates the Connick administration. 194 Id. Williams takes issue with the case of Christopher Wells for this same reason. Id. However, the Court has already excluded this case as the trial post-dates the Connick administration. Id. 195 Id. at 11–12. 196 Larry Hudson, Hayes Williams, Linroy Davis, Roland Gibson, James Carney, Michael Williams, Arthur Monroe, Norman Clark, Floyd Falkins, Errol Bernard, Gregory Bright, Earl Truvia, Norris Henderson, Calvin Williams, Larry Curtis, Issac Knapper, William Perkins, Ronald Monroe, John Floyd, Reginald Adams, Stephen Rosiere, Curtis Lee Kyles, John Thompson, Erin Hunter, Darryl Washington, Eugene Lindsey, Alvin Jeanmarie, Alfred Oliver, Jerome Morgan, Daniel Rideau, Darnell Lewis, Shareef Cousin, Dan Bright, Dwight Labran, Juan Smith, Salvador Perez, David Mahler, Eddie Triplett, and Julian Robinson. 197 Rec. Doc. 103 at 13. 198 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 32 of 46
33 practice of city officials or employees” that is “so common and well settled as to constitute a custom that fairly represents municipal policy.”199 The reason for this, of course, is to ensure that “a municipality cannot be held liable solely because it employs a tortfeasor.”200 Requiring a persistent, widespread practice ensures that a municipality is not held liable unless the injury is caused by the execution of a custom made by those “whose edicts or acts may fairly be said to represent official policy.”201 Repeated conduct is necessary to “demonstrate[s] the governing body’s knowledge and acceptance of the disputed conduct.”202 Although similar, repetitive conduct is required in order to demonstrate the municipality’s knowledge and acceptance of the conduct, the Fifth Circuit has often stated that it has “no rigid rule regarding numerosity to prove a widespread pattern of unconstitutional acts.”203 The Fifth Circuit’s cases suggest that whether a pattern exists depends on not only the number of instances, but also the nature of the conduct. Williams relies on the Fifth Circuit’s recent decisions in Verastique v. City of Dallas204 and Damond v. City of Rayville205 to argue that in the context of the number of cases prosecuted, the Brady violations alleged would not have put Connick on notice of a problem with his office’s policies.206 199 Piotrowski, 237 F.3d at 579 200 Monell, 436 U.S. at 690. 201 Id. at 694. 202 Zarnow, 614 F.3d at 168. 203 Jackson v. Valdez, 852 F. App’x 129, 135 (5th Cir. 2021). 204 106 F.4th 427 (5th Cir. 2024). 205 127 F.4th 935 (5th Cir. 2025). 206 Rec. Doc. 66-1 at 12–13. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 33 of 46
34 In Verastique, the plaintiffs alleged that a Dallas police officer, Roger Rudloff, used excessive force while arresting them during widespread protests.207 The plaintiffs sought to hold the City of Dallas liable under Monell, alleging that there were 19 prior complaints of misconduct by Rudloff over 23 years.208 The Fifth Circuit affirmed the district court’s dismissal of the claim on the pleadings, concluding that the other incidents were “not sufficiently similar, specific, or numerous.”209 The Fifth Circuit found that the allegations regarding the prior incidents were “devoid of critical factual enhancement,” including facts that would have elucidated how and why the incidents occurred.210 Even assuming these other incidents were “sufficiently specific and similar,” the Fifth Circuit found they were insufficient as a matter of law to “create a pattern capable of providing constructive notice” because the incidents occurred over a 23 year time-span: Given a constant number of incidents, a longer time span yields a lower rate of violations—militating against constructive notice. Nineteen allegations over the span of twenty-three years yields a mere annualized incident rate of 0.826. In other words: Plaintiffs—at most—show that, for over two decades, Rudloff, on average, received fewer than one accusation of misconduct per year.211 The Fifth Circuit further explained that the complaint failed to provide information “such as department size and number of arrests” that would “provide the context necessary to evaluate whether an alleged department-wide pattern is so obvious as to impart constructive notice.”212 The Fifth Circuit reasoned that “[g]iven a constant number of incidents, the percentage of conduct 207 Verastique, 106 F.4th at 431. 208 Id. at 433. 209 Id. at 434. 210 Id. at 432 (“Plaintiffs, for example, cite five incidents allegedly involving a flashlight or nightstick. Some are listed incident-by-incident. But all still remain totally devoid of critical facts. What prompted the encounters? Did the individuals threaten Rudloff with physical harm? Were they attempting to resist arrest?”). 211 Id. at 434. 212 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 34 of 46
35 supporting a pattern of illegality shrinks as the size of the police department or the number of arrests increases.”213 “Given the departments size [3,200 officers], and absent any evidence of its total number of arrests during the same time period,” the Fifth Circuit stated “only one conclusion can reasonably follow: Nineteen incidents over twenty-three years does not support any inference of a department-wide pattern of illegality.”214 More recently, in Damond v. City of Rayville, the Fifth Circuit held that the plaintiff failed to adequately allege a “custom of allowing inmate-on-inmate violence by failing to separate violent and non-violent inmates” at the Richland Parish Detention Center. 215 The Fifth Circuit noted that the plaintiff had identified “six instances in which inmates attacked others but were later returned to their dormitory.”216 The Fifth Circuit explained, however, that the plaintiff had “fail[ed] to identify the jail personnel who were present for or involved in the violent incidents.”217 The Fifth Circuit further explained that these incidents were “dissimilar to” the attack on the plaintiff, and that they “occurred over the course of several months, were motivated by differing factors, and took place in different locations.”218 The Fifth Circuit concluded that “[t]hese alleged incidents are insufficient to allege a custom or policy of tolerating widespread, unprovoked violence in the detention center or to put the officials on notice of the repeated constitutional violations.” 219 213 Id. 214 Id. 215 Damond, 127 F.4th at 939. 216 Id. 217 Id. 218 Id. 219 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 35 of 46
36 These cases suggest that the mere number of incidents must be viewed in context of the type and frequency of the disputed conduct. It is therefore unsurprising that 19 incidents of excessive force in Verastique, and six incidents of inmate violence in Damond, were insufficient to demonstrate a pattern given how frequently officers use force and how often violence in jails occurs. Plaintiff correctly points out that Brady claims are distinguishable from excessive force claims or claims regarding inmate violence, because Brady claims necessarily involve concealed action (or inaction) on the part of the State for which there may be no documentation at all. Given that Brady violations are less common than police uses of force or violence in jails, Verastique and Damond do not compel the conclusion that there is insufficient evidence to establish a de facto custom. As this Court previously recognized in its Order denying Williams’s motion to dismiss, guidance from appellate courts on how many cases are enough to prove a custom and notice to the policymaker in the Brady context is sparse. But the Thompson Court suggested 4 cases in a 10- year period would not be enough to support notice of similar constitutional violations.220 The Armstrong Court implied 9 cases in a 24-year period would not be enough.221 Plaintiff points to 39 cases in a 32-year period.222 Of those cases, 22 went to trial in the 17 years preceding Plaintiff’s 1985 trial.223 Plaintiff points to a much greater number of cases in similar timespans to both Thompson and Armstrong. 220 Thompson, 563 U.S. at 62. 221 Armstrong v. Ashley, 60 F.4th 262, 278 (5th Cir. 2023). 222 The earliest case considered is Larry Hudson (December 1967 trial). The latest case considered is Juliana Robinson (February 1999 trial). 223 Larry Hudson, Hayes Williams, Linroy Davis, Roland Gibson, James Carney, Michael Williams, Arthur Monroe, Norman Clark, Floyd Falkins, Errol Bernard, Gregory Bright, Earl Truvia, Norris Henderson, Calvin Williams, Larry Curtis, Issac Knapper, William Perkins, Ronald Monroe, John Floyd, Reginald Adams, Stephen Rosiere, and Curtis Lee Kyles. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 36 of 46
37 Williams argues that the number of Brady violations is miniscule when compared to the average number of trials and guilty pleas OPDA handled per year. According to an expert statistician retained by Williams, between 1974 and 1985 there were approximately 522 trials and 5,175 guilty pleas on average each year.224 Therefore, Williams reasons that the proportion of Brady violations was one in several thousand, when compared to all of the cases tried or resolved by a guilty plea at OPDA each year.225 The Court finds the comparison of cases where a Brady violation is adjudicated following trial to cases that resolved in a guilty plea unpersuasive. The Fifth Circuit has recognized that generally “a guilty plea precludes the defendant from asserting a Brady violation.”226 Therefore, it is unlikely that any Brady violation would ever come to light in the 5,175 cases OPDA resolved on average each year through guilty pleas. Plaintiff asserts that Brady violations are far more likely to come to light in cases where a defendants appeal or challenge their convictions through post-conviction relief. Therefore, Plaintiff contends the appropriate “denominator” for any statistical analysis is the number of cases with an appeal or post-conviction proceeding. Williams responds that this argument is faulty because a defendant would not be able to raise a Brady claim until after the purported evidence is discovered. The Court questions how frequently (if at all) a criminal defendant would discover that material evidence was not disclosed unless the defendant or counsel is reviewing the record in preparation for an appeal or post-conviction relief motion? The Court has limited the Brady 224 Rec. Doc. 62-4. 225 Rec. Doc. 66-1 at 17. 226 United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009). See also Alvarez v. City of Brownsville, 904 F.3d 382, 394 (5th Cir. 2018) (“[C]ase law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process. The en banc court will not disturb this circuit’s settled precedent and abstains from expanding the Brady right to the pretrial plea bargaining context for Alvarez.”). Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 37 of 46
38 violations it is considering on summary judgment to those that were adjudicated by a court (i.e. on appeal or in post-conviction proceedings). Therefore, the Court agrees with Plaintiff that a more appropriate denominator would be the number of cases with an appeal or post-conviction proceeding. The Court also notices a pattern that of the 39 cases identified, 33 involved murder or manslaughter.227 Four of the cases involved armed robbery and aggravated rape.228 All of those charges are clearly serious felonies, and they are all classified as “crimes of violence” under Louisiana law.229 The Court has not been presented with any evidence of the number of trials for murder, manslaughter, armed robbery, and aggravated rape that OPDA handled on average per year. But the Court questions whether this would be a more appropriate denominator. Plaintiff has not provided the Court with any evidence of the number of appeals and post- conviction proceedings that occurred on average per year. Although it is Plaintiff’s burden to “provide the context necessary to evaluate whether an alleged department-wide pattern is so 227 Larry Hudson (first-degree murder), Hayes Williams (first-degree murder), Linroy Davis (manslaughter Roland Gibson (first-degree murder), James Carney (second-degree murder), Michael Williams (second-degree murder), Errol Bernard (second-degree murder), Gregory Bright (second-degree murder), Earl Truvia (second-degree murder), Norris Henderson (second-degree murder), Calvin Williams (first-degree murder), Larry Curtis (second- degree murder), Issac Knapper (first-degree murder), William Perkins (first-degree murder), Ronald Monroe (first- degree murder), John Floyd (second-degree murder), Reginald Adams (first-degree murder), Stephen Rosiere (second- degree murder), Curtis Lee Kyles (first-degree murder), John Thompson (attempted armed robbery and first-degree murder), Erin Hunter (second-degree murder), Darryl Washington (manslaughter), Eugene Lindsey (second-degree murder), Alvin Jeanmarie (second-degree murder), Jerome Morgan (second-degree murder), Daniel Rideau (first- degree murder), Shareef Cousin (first-degree murder), Dan Bright (first-degree murder), Dwight Labran (first-degree murder), Juan Smith (first-degree murder), Salvador Perez (first-degree murder), David Mahler (manslaughter), and Julian Robinson (aiding and abetting second-degree murder). 228 Arthur Monroe (armed robbery), Floyd Falkins (armed robbery), Alfred Oliver (armed robbery and second-degree kidnapping), Darnell Lewis (aggravated rape, aggravated burglary, aggravated crime against nature), Norman Clark’s conviction for distribution of heroin and Eddie Triplett for cocaine possession are not classified crimes of violence. 229 La. Rev. Stat. § 14:2(B). Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 38 of 46
39 obvious as to impart constructive notice,”230 Williams does not cite any caselaw requiring that a statistical analysis like the one he proposes be undertaken. Even if the Court were to require such an analysis, one or two Brady violations out of 522 trials is sufficiently numerous for a reasonable juror to find Connick had constructive notice of the ongoing violations. Considering the large number of Brady violations adjudicated, Plaintiff has presented sufficient, plausible evidence upon which a reasonable juror could find a custom of Brady violations in OPDA with Connick on constructive or actual notice of those violations. In addition to arguing that Plaintiff fails to present an adequate number of cases to demonstrate constructive notice on behalf of Connick, Williams argues that the cases Plaintiff cites are not sufficiently similar.231 However, exact similarity between cases is not mandatory to find a policymaker was on notice of similar Constitutional violations, with the Fifth Circuit noting the “specificity required should not be exaggerated . . .”232 Courts in this Circuit look for prior acts that are “fairly similar to what ultimately transpired” in the case before them.233 In Thompson, as part of law enforcement’s investigation, a swatch of fabric from the victims’ pants stained with the robber’s blood was collected and analyzed by a crime laboratory.234 The Assistant District Attorney in the case received a report from the laboratory, but failed to disclose the report to the defendant.235 The plaintiff cited other cases where Brady violations had occurred, but the Court explained none of those cases “involved failure to disclose blood evidence, 230 Verastique, 106 F.4th at 434. 231 Rec. Doc. 61-1 at 18. 232 Est.of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005). 233 Id. 234 Thompson, 563 U.S. at 55. 235 Id. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 39 of 46
40 a crime lab report or physical or scientific evidence of any kind.”236 Therefore, the Supreme Court observed those cases were not similar enough to put Connick on notice that specific training was necessary to avoid the constitutional violation that occurred in the plaintiff’s case.237 In that case, the only similarity between the other Brady violations and the one alleged was simply that they were generally Brady violations. In this case, the similarities between the instant case and the cases cited by Plaintiff are much more apparent. In the case at hand, OPDA failed to disclose Mrs. Carnesi’s prior exculpatory testimony. The testimony that OPDA withheld revealed Mrs. Carnesi, at one point, claimed Plaintiff did not resemble the perpetrator of her husband’s murder and that the car Plaintiff was arrested in did not resemble the one she saw at the scene of the crime.238 In short, the constitutional violation in the instant case is that ODPA withheld potentially exculpatory witness testimony that also could have been used to impeach Mrs. Carnesi.239 Of the 39 cases identified, at least 32 of the cases involve the withholding of potentially exculpatory witness statements.240 These cases are sufficiently similar to the instant case for a reasonable juror to conclude Connick was on notice of the type of Brady violation that occurred in Plaintiff’s case. The Court finds that there is sufficient evidence for a reasonable juror to conclude that Connick had knowledge of and accepted the conduct. For the plethora of reasons discussed above, there are material facts in dispute regarding 236 Id. at 62–63. 237 Id. 238 Id. 239 Rec. Doc. 26 at 4–5 (internal citations omitted). 240 Larry Hudson, Hayes Williams, Linroy Davis, Roland Gibson, Michael Williams, Arthur Monroe, Norman Clark, Floyd Falkins, Errol Bernard, Gregory Bright, Earl Truvia, Norris Henderson, Calvin Williams, Larry Curtis, Issac Knapper, William Perkins, Ronald Monroe, Stephen Rosiere, Curtis Lee Kyles, Erin Hunter, Darryl Washington, Eugene Lindsey, Alvin Jeanmarie, Alfred Oliver, Daniel Rideau, Darnell Lewis, Shareef Cousin, Dwight Labran, Juan Smith, Salvador Perez, David Mahler, and Eddie Triplett. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 40 of 46
41 whether there were sufficiently similar, specific, or numerous Brady violations at OPDA to put Connick on notice of those violations. In addition to the number of cases where Brady violations have been adjudicated, Plaintiff cites additional circumstantial evidence of a pervasive culture of indifference to Brady. During his recent deposition, Jim Williams testified that he heard people at OPDA “make light” by saying things like “it’s not Brady if the defense doesn’t know about it.”241 During a deposition taken in the Thompson case, former prosecutor John Glas also testified that he heard the phrase “It’s not Brady . . . unless they know about it.”242 Jim Williams denied that Connick or any of the supervisors at OPDA repeated such phrases.243 Jim Williams emphasized: “Harry Connick never would have said anything like that ever.”244 Nevertheless, Jim Williams testified “that kind of thing came up all the time” at OPDA.245 Plaintiff also cites evidence showing there was no mechanism for tracking or reporting Brady violations, decreasing the likelihood that patterns of Brady violations would be promptly identified and corrected.246 Plaintiff cites evidence suggesting that Connick adamantly opposed any steps toward open file discovery and repeatedly resisted attempts to open up discovery for the defense.247 Williams correctly points out that neither tracking of violations or open-file discovery 241 Rec. Doc. 91-38 at 121–22. 242 Rec. Doc. 91-31 at 146. 243 Rec. Doc. 91-38 at 124. 244 Id. 245 Id. at 122. 246 Rec. Doc. 91-4 at 23–24 (citing depositions of Harry Connick, Bridget Bane, Camille Buras, and other OPDA employees). 247 Id. at 26 (citing depositions of Harry Connick and Bridget Bane). Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 41 of 46
42 are legally required. Although this evidence would not be conclusive of an unconstitutional policy on its own, it bolsters Plaintiff’s other evidence of a custom or practice of withholding exculpatory evidence. Additionally, the parties dispute whether Connick’s office ever conducted any Brady training.248 The Court cannot weigh the evidence on summary judgment. Thus, there are material facts in dispute regarding whether OPDA conducted Brady training under Connick. Plaintiff also points to a written Brady policy adopted by OPDA in 1987, two years after his trial and conviction. Plaintiff argues that the policy was “wholly inaccurate, inadequate, and misleading” because: (1) it incorrectly suggested that Brady obligations are triggered by a judicial order issued in response to the defense’s request for disclosure; (2) did not explain what exculpatory evidence was; and (3) referred only to “information in the possession of the State,” without clarification that the term encompassed exculpatory evidence in the possession of both the prosecutor and law enforcement.249 Williams argues that the written policy adopted in 1987 could not have led to misunderstandings that resulted in an alleged failure to disclose exculpatory evidence in advance of Plaintiff’s 1985 trial. Nevertheless, it is relevant evidence on how OPDA viewed Brady. Again, on a motion for summary judgment the Court must view the evidence in the light most favorable to Plaintiff, as the non-moving party, and draw all reasonable inferences in his favor.250 So construed, based on the evidence discussed above, the Court finds that a reasonable jury could find that the Brady violation resulted from a “persistent, widespread practice of 248 Compare Rec. Doc. 66-1 at 20–21 (citing testimony from former prosecutors that Brady was discussed during office meetings) with Rec. Doc. 91-4 at 23 (citing testimony from former prosecutors that could not recall Brady training). 249 Rec. Doc. 91 at 19; Rec. Doc. 91-4 at 20–23. 250 Turner, 476 F.3d at 343 (quoting Reeves, 530 U.S. at 150). Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 42 of 46
43 [OPDA], which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy,” and that Connick had actual or constructive knowledge of that custom.251 3. Failure to Train Finally, Plaintiff contends that a reasonable juror could conclude that Connick fostered practices constituting deliberate indifference toward Brady violations.252 Plaintiff asserts that the evidence demonstrating that OPDA failed to train, supervise, and discipline its employees regarding their obligations under Brady and that these failures amounted to deliberate indifference to the “known or obvious” risk that criminal defendants’ rights would be violated.253 “It is well-established that a municipality’s failure to train its [] officers can give rise to § 1983 liability.”254 To establish a failure to train claim, a plaintiff must show “(1) that the municipality’s training procedures were inadequate, (2) that the municipality was deliberately indifferent in adopting its training policy, and (3) that the inadequate training policy directly caused the violations in question.”255 “Deliberate indifference is ‘more blameworthy than negligence’ but less blameworthy than purposeful harm.”256 “The standard is ‘stringent’ and requires that the supervisory actor disregarded a known consequence of his action.”257 “To satisfy the deliberate 251 Burge II, 336 F.3d at 369. Based on the same evidence of a pattern of violations, a reasonable juror would be able to find deliberate indifference. 252 Rec. Doc. 91 at 19. 253 Id. 254 Westfall v. Luna, 903 F.3d 534, 552 (5th Cir. 2018). 255 Zarnow, 614 F.3d at 170. 256 Id. at 169 (quoting Farmer, 511 U.S. at 835). 257 Id. at 169–70 (citing Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 551 (5th Cir. 1997)). Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 43 of 46
44 indifference prong, a plaintiff usually must demonstrate a pattern of violations and that the inadequacy of the training is ‘obvious and obviously likely to result in a constitutional violation.’”258 Plaintiff has presented sufficient evidence upon which a reasonable juror could rely to find a pervasive pattern of Brady violations sufficient to put Connick on notice that OPDA’s policies were constitutionally deficient. As discussed in detail above, Plaintiff cites: (1) evidence regarding the widespread and persistent nature of Brady violations by OPDA in the 1970s and 1980s; (2) evidence of training, comments, and attitudes within the office indicating a pervasive disregard for and misunderstanding of Brady; and (3) numerous specific examples of other documented instances of such violations.259 This evidence, when considered collectively, is more than sufficient to create a genuine issue of fact as to whether OPDA’s Brady training procedures were adequate, and whether Connick was deliberately indifferent in adopting its training policy.260 B. Whether Plaintiff has Presented Evidence that the Policy or Custom is the “Moving Force” Behind Plaintiff’s Constitutional Violation Finally, Williams argues that Plaintiff has not produced evidence to show OPDA’s alleged unconstitutional policies or customs were the moving force behind the alleged Brady violation in his case. To establish “moving force” causation, a “plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.”261 Critically, “[t]he causal link ‘moving force’ requirement and the degree of culpability ‘deliberate indifference’ requirement 258 Cousin, 325 F.3d at 637. 259 Rec. Doc. 91 at 22. 260 Zarnow, 614 F.3d at 170. 261 Brown, 520 U.S. at 404. Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 44 of 46
45 must not be diluted, for ‘where a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability.’”262 Still, “‘[w]here a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so,’ the causation determination ‘is straightforward.’”263 Plaintiff argues that because he has presented evidence upon which a reasonable juror could find that OPDA’s unconstitutional customs caused his constitutional injury, he has met the causation requirement of the “moving force” element. Causation has been discussed to an extent in the discussion above on whether there was a custom of suppressing exculpatory evidence within OPDA. Plaintiff has presented evidence to show that 39 convictions were vacated because of Brady violations occurring during Harry Connick’s tenure as the District Attorney for Orleans Parish. If proven, a custom of withholding evidence in violation of Brady is clearly unconstitutional, and Plaintiff alleges that same custom caused the Brady violation in his case. Therefore, Plaintiff has presented evidence upon which a reasonable juror could find that OPDA’s custom of suppressing exculpatory evidence in violation of Brady was the moving force behind the constitutional violations he suffered. V. Conclusion There are facts in dispute precluding summary judgment on the Monell claim brought against Williams in his official capacity as District Attorney. Plaintiff has not presented sufficient evidence to show that OPDA maintained an official policy in violation of Brady. However, the amount and similarity of Brady violations occurring under Connick’s tenure, combined with other 262 Covington v. City of Madisonville, Tex., 812 F. App’x 219, 225–26 (5th Cir. 2020) (quoting Alvarez, 904 F.3d at 390). 263 Jauch v. Choctaw Cnty., 874 F.3d 425, 436 (5th Cir. 2017) (citation omitted). Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 45 of 46
46 circumstantial evidence of a pervasive culture of indifference to Brady, is enough for a reasonable juror to conclude there was a custom of withholding exculpatory witness testimony within OPDA and Connick had constructive and/or actual notice of the practice. The same facts are enough for a reasonable juror to find OPDA failed to train, supervise, and discipline its employees regarding their obligations under Brady and that these failures amounted to deliberate indifference to the “known or obvious” risk that criminal defendants’ rights would be violated. A reasonable juror could also find that the custom of Brady violations was the moving force behind Plaintiff’s claimed constitutional violation. Accordingly, IT IS HEREBY ORDERED that Defendant Jason Williams’s Motion for Summary Judgment264 is DENIED. NEW ORLEANS, LOUISIANA, this ____ day of November, 2025. _________________________________ NANNETTE JOLIVETTE BROWN UNITED STATES DISTRICT JUDGE 264 Rec. Doc. 66. 24th Case 2:23-cv-06897-NJB-KWR Document 116 Filed 11/24/25 Page 46 of 46
Wondering how this text applies to your situation?
Free consultation, no commitment
Describe your situation. Our team will contact you by email about your consultation.
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.