Prosecutorial Immunity: Sometimes, A Legal Fiction Is Just A Fiction

It’s often difficult to understand why a prosecutor who has engaged in the affirmative act of concealing exculpatory evidence, or fabricating evidence of guilt, is clothed with immunity.  Mistake or accident is one thing, but why should they be immune from liability for a deliberate act?  The simple, albeit unpalatable, explanation is that the Supreme Court says so.

And so the 2d Circuit in Warney v. Monroe County reversed Judge Latimer in the district court and conferred absolute immunity who withheld the results of a DNA test from a convicted defendant during his habeas proceeding. From Mark Hamblett at the New York Law Journal :


Douglas Warney was wrongfully convicted of the 1996 stabbing murder of William Beason in Rochester, N.Y., and served 10 years in prison. Warney, who has an IQ of 68, was allegedly coerced into giving a typewritten “confession” that contained a number of inconsistencies and included facts of which he could not possibly have known.

While Warney’s federal habeas corpus petition and his appeal from a state court decision denying him access to DNA evidence were pending, Monroe County Second District Attorney Larry Bernstein, without authorization and without telling anyone, had DNA testing performed in February 2005 on seven samples from the crime scene, including blood found on the murder weapon and under the victim’s fingernails.

The testing, revealed in a Feb. 17, 2006 written lab report, showed that all of the blood matched the profile of a man who was neither Beason nor Warney.

For those who love to think of the system as a balancing test, the need to protect the efficacy of prosecutions trumps the need to not convict innocent people.  Better to put the innocent in prison than have prosecutors nervous about being liable for their deliberate acts of concealment.  It’s a value judgment, and the Supremes have clearly expressed where they stand.


Judge Jacobs explained that the U.S. Supreme Court, in Imbler v. Pachtman, 424 U.S. 409 (1976), defined the scope of prosecutorial immunity by reference to the “function” performed, with the shield of immunity covering those acts that are “intimately associated with the judicial phase of the criminal process.”

“For once a conviction becomes final, there is no longer a pending adversarial criminal proceeding; the ‘judicial phase’ is technically finished,” Judge Jacobs said. “Yet, by the nature of their office, prosecutors will necessarily remain involved in criminal cases; opposing civil habeas petitions (or other forms of collateral relief); amending restitution orders; pursuing parole violations; or resolving disputes over a prisoner’s projected release date.”

This is where the decision gets very curious.  If the prosecution phase is over, how does the fact that prosecutors “necessarily remain involved” have to do with the fact that habeas petitioner, like forfeiture proceedings, alter the fact that these proceedings are “civil in nature.”  The reason this matters so much is that the courts, by denominating them civil in nature, a fiction created by simply changing the word “criminal” to “civil”, deprives the defendant of the panoply of rights he would otherwise received, ranging from right to counsel, to burden of proof, to the right to a jury.

So the civil/criminal distinction is real when it inures to the benefit of the prosecution, but becomes mere fiction when it exposes the prosecutor to liability?  Well, yeah.  Exactly. 

In large measure, the need for these legal fictions is a by-product of bad caselaw.  Why, in this instance, is prosecutorial immunity dependent on the stage of proceedings rather than the nature of the misconduct?  It’s based on the historical rationale for protecting the judiciary from suit, twisted just a bit to cover the prosecutor.  In other words, the reason it’s ridiculous is that its genesis was self-serving and intellectually dubious.


“The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction.
While these are very nice words, “courage and independence” have nothing to do with deliberately concealing evidence of innocence.  They could have easily limited the “harassment and embarrassment” by holding that liability was limited to intentional acts.  Problem solved.  But the court chose not to go down that path, and instead carved out an exception for malfeasance in the investigative stage of the proceedings, and since then it’s gone downhill from there.

While the Supreme Court has the Pottawamie case under consideration, this would be an opportune time to reconsider the entire framework of prosecutorial immunity and the distinctions drawn on the “stage of proceedings” paradigm.  But nobody argued that, and the court won’t consider it.  They should.  It would put an end to the absurd problems dealing with prosecutorial immunity, and save the court the embarrassment of having to continue to manipulate reasoning by its occasional reliance on facile legal fictions.

9 thoughts on “Prosecutorial Immunity: Sometimes, A Legal Fiction Is Just A Fiction

  1. Mark Dwyer

    “It’s often difficult to understand why a prosecutor who has engaged in the affirmative act of concealing exculpatory evidence, or fabricating evidence of guilt, is clothed with immunity.”

    Let me ask a different question. Can we better understand why a prosecutor who has been falsely accused of engaging in the affirmative act of concealing exculpatory evidence, or fabricating evidence of guilt, is clothed with immunity?

    Which is to say, your question may well be legitimate. But it is a loaded question. If you assume egregious misconduct in a particular case, of course immunity seems wrong. But the judges who created the doctrine, and those who today enforce it, seem not to make that assumption.

  2. SHG

    An excellent question.  Consider, nothing precludes a person from commencing a 1983 action against a prosecutor.  Immunity provides a basis for a post-commencement motion to dismiss.  If that motion was determined by the plaintiff’s ability to show an intentional act of concealment, rather than be based on the stage of the proceeding at which the concealment occurred, the honest prosecutor is no worse off than he would otherwise be and the dishonest prosecutor is subject to liability for his affirmative wrong.

    This provides an incentive to be an honest prosecutor, rather than an incentive to engage in affirmative impropriety based on the stage of the proceeding and whether the law, based solely on the stage of the proceeding, will clothe the dishonest prosecutor with immunity.

    There’s no reason for anyone, judges included, to assume anything.  Let the evidence take the case where it should go, and let the dishonest prosecutor face the consequences of his or her act of intentional concealment.  The honest prosecutor has no more to fear than he does now, and certainly, the honest prosecutor takes no comfort in knowing that he serves in the office next door to the dishonest prosecutor.  Aren’t we all better off with prosecutors whose fealty to the law and the Constitution is true? 

  3. Mark Dwyer

    I of course won’t keep coming back; it’s your blog, not mine. But permit one more try by me:

    if you allow a motion concerning whether there is an intentional act of concealment, you simply telescope the trial into motion practice. will it be, in effect, a summary judgment motion — without discovery? I think that’s pretty silly.

    And of course we are better off with prosecutors whose fealty to the law and the Constitution is true. but there are already plenty of incentives, for prosecutors to be true — and for plaintiffs to be false.

    how about the judges? should we not give them an incentive to be true? why don’t we do away with judicial immunity as well?

  4. SHG

    First, you’re always welcome to comment, Mark, my blog or not.

    Second, as for the motion becoming a mini-trial, or summary judgment without discovery, it will be as much or as little as it deserves.  It will not be a mini-trial for the standard to get past a motion to dismiss isn’t preponderance, and whether the motion should be held in abeyance pending discovery depends on the plaintiff’s ability to persuade a judge as to the worthiness of his cause and the justification for greater discovery before being held to the test. 

    As we both know, there is a natural vetting process by attorneys willing to take a cause, who will neither risk their time nor money on an action that has little chance of success.  That said, the incentive for plaintiffs to be false is conteracted by the incentive for lawyers to only take meritorious cases, knowing full well that proseutors will fight to the death, regardless of whether they are honest or not.

    As for incentives for prosecutors to be true, that’s becoming increasingly less persuasive, given the number of DNA reversals based on false confessions and Brady violations.  The incentives may exist in theory, but perhaps they aren’t doing nearly enough in practice to convince prosecutors of a downside to dishonesty and concealment.

    Third, why not do away with judicial immunity as well?  Well, since you’re offering…

  5. John R.

    One gets the impression, reading the opinion, that the 2nd Circuit is far more concerned about order than liberty, government than individuals, authority rather than right v. wrong.

    The opinion actually exhorts us to trust the prosecutor’s sense of ethics and decency. This is beyond naive; it is utterly fantastic.

    But then again Judge Jacobs gives speeches to Federalist Society chapters where he comments on how much more responsible government lawyers have to be than private ones.

    I guess that’s a running theme up there: protect the government; screw the individual. Not exactly the right orientation for a court.

  6. Blind Guy

    Let’s take this a little further. Scott’s blog started with prosecutorial immunity and Mr. Dwyer threw judicial immunity into the mix. I think another question is why are there different rules for the judicial and executive branches that don’t apply to the criminal defense bar. Where is the immunity for criminal defense lawyers who hide evidence or pay off or otherwise confer a benefit upon a witness?

    What’s sauce for the goose . . .

  7. Thomas R. Griffith

    Sir, the replies to the comments read like individual Post(s) & are excellent, I might add.

    At first it seemed like an Assist. D. A’s. had jumped at an opportunity to defend. He avoided the topic by changing the subject then bowed out. I hope more former & present ADAs visit on a regular basis. How else are they ever going to learn the difference between right & wrong? (OR) have an opportunity to publicly pick a side much like Mr. D.

    PROJECTS are currently underway, designed to allow the public at large an opportunity to publish information obtained through F.O.I. acts showing patterns of Prosecutorial Misconduct & subsequent Immunity. I promise you, the dishonest ones rue the passage of the F.O.I. acts. Immunity enjoyed on the judicial level today, will be trumped by public scrutiny in the voting booths of tomorrow. Thanks.

  8. SHG

    I am fortunate that Mark Dwyer paid a visit.  He’s not just any old commenter, but former Chief of Appeals and current Chief Assistant to New York County District Attorney, Robert Morgenthau.  Mark is one of the best, smartest and most ethical prosecutors around, and his thoughts are always interesting and insightful.

  9. Thomas R.Griffith

    Sir, we truly need more judges with such credentials, reputations & knowledge of the problem being a judge issue. Now, if someone could just convince both of you to run. Thanks

Comments are closed.