The Supreme Court has  granted cert in a Los Angeles case, Van de Kamp v. Goldstein, where Tom Goldstein spend 24 years in prison for a murder conviction based upon a jailhouse snitch.  The snitch, it turns out, was a pro and had a history that should have been disclosed under Giglio, and would have provided the fodder for the defense to rip the rat’s credibility. 

But the management at the District Attorney’s office, well, they just didn’t have any system in place to track snitches, and somehow nobody knew anything about anything.  So Goldstein, an innocent man, spends 24 years in jail because of crappy record keeping.

When he gets out, Goldstein sues.  And wins. 

According to this Los Angeles Times article,

Prosecutors, like judges, must be free to do their jobs without fear of being sued later, the high court said in 1976.

This rule of “absolute immunity” applies whenever a prosecutor “acts within the scope of his prosecutorial duties,” the justices said then.

But it is not clear whether this immunity rule protects supervising prosecutors against suits over alleged management failures.

So the issue is framed.  But there remains an underlying assumption that troubles me about the limited scope of this case, and it’s exacerbated by the discussion that  Gideon started yesterday about the refusal of state attorney grievance procedures when applied to misconduct by prosecutors.

Why must prosecutors, “like judges,” be free to do their jobs without fear of being sued later? 

Prosecutors are not at all “like judges” to begin with.  They serve an important function in the criminal justice system, right?  So do defense lawyers, but nobody is saying we’re “like judges.”  We’re not immune from suit.  What could be so horrible about prosecutors living “in fear” of suit if they perform their important function so badly that innocent people go to prison.  Do we expect prosecutors to screw up?  Are we fine with incompetent prosecutors?  Are we fine with prosecutors who deliberately skirt, even break, the law when they do their job?

There is nothing conceptually wrong with our expecting that prosecutors perform their function competently and lawfully.  Certainly, no one would argue that prosecutors have a right to be either incompetent or malevolent.  So where’s the problem?  Well, mistakes happen, prosecutors respond.  Nobody is perfect, they say.  To err is human.

Yeah.  That’s what we say about the defendants too.  Why is that argument more persuasive when it’s your butt on the line?  I guess the value of mercy and understanding all depends on who’s paying.

The argument in opposition is precisely what one would expect.

In their appeal to the Supreme Court, lawyers for Van de Kamp and Los Angeles County said the 9th Circuit’s decision, if allowed to stand, would “open the floodgates” to suits against top prosecutors. They said plaintiffs could always allege that a managerial lapse led to a faulty prosecution.

There are a lot of potential floodgates in this country.  People are always screaming about them.  They must be very, very afraid of drowning.  Do you wonder what they are hiding that makes them so afraid?

The fact is that an opening like this, a tiny crack in prosecutorial immunity, has no floodgate potential at all.  The number of cases where a defendant is convicted, then subsequently reversed based upon some prosecutorial failure of any sort, is minuscule.  Reversals of convictions happen rarely, and within that extremely rare universe exists such a tiny subset of reversals due to prosecutorial misconduct or failure that it would not even make a ripple.

It’s the accountability that frightens them.  It’s the very idea that they would be held responsible for their failures, whether deliberate or not.  And why shouldn’t they be?  It would do a world of good for the integrity of the system if prosecutors were afraid, very afraid, of being held accountable for their mistakes in fulfilling their very important function of putting human being in jail.  They should be afraid of being wrong.  They should be scared to death of convicting innocent people because they screwed up.

Indeed, as per the discussion at Gideon’s blawg, the reality is that attorney discipline rarely is applied to prosecutors, even after courts hold that they have committed misconduct.  Traditionally, the expectations of ethical conduct by prosecutors are so low, and the willingness to turn a blind eye to their ethical lapses is so high, that they have no reasonable fear of being held accountable in any forum for their failings, whether deliberate or incompetent.  Essentially, they are given carte blanche to be bad.

This is not to say that many, if not most, prosecutors try their best to perform their function ethically and competently.  Indeed, this is why there are so few instances where a lack of immunity would present a problem.  Most prosecutors do a very good job, whether we agree with them or not.  The Nifong cases are a monumental rarity, which is why it’s received so much attention. 

So what do prosecutors really have to fear?  That they will be held to the standard we expect of them.  I fail to see anything wrong with that.