Everything that touches Kareem Bellamy’s world seems to turn ugly. His trial was ugly. The 14 years he spent in prison for murder was, naturally, horribly ugly. The vacating of his conviction and release, ugly, ugly, ugly. Four months after Judge Joel Blumenfeld vacated Bellamy’s murder conviction based on a taped confession by another guy to the murder, it turned out the tape was a phony. Ugly.

And now on appeal before the Second Circuit, challenging the dismissal on summary judgment of his suit for damages for a cool prosecution trick performed by the Queens County District Attorneys office of maintaining a Chinese wall between the handling of snitches and the prosecutors trying cases, it’s ugly yet again.

Prosecutors have absolute immunity from liability for their actions in their prosecutorial function, because the Supreme Court fears the floodgate will open and they will flee the courtroom, and the DA’s office, in tears if they were ever held accountable, even for the most intentional and egregious wrongdoing. If that were to happen, they might be hesitant in their zeal to shoot fish in barrels and society would devolve to anarchy. So prosecutors must be protected at all costs.

But there remained one tiny crack where prosecutors could be liable, based on their actions in an investigative capacity rather than the performance of their prosecutorial function.* Bellamy argued, inter alia, that the concealment of Brady material, of benefits conferred on witnesses against him at trial, was an administrative policy rather than a prosecutorial policy. EDNY Judge Ann Donnelly said “nope, ain’t happening.”

To the extent that the plaintiff asserts that the alleged practices of the District Attorney are administrative in nature, and not related to his prosecutorial function, his argument fails;  the Supreme Court in Van de Kamp v. Goldstein, 555 U.S. 335 (2009), held that matters of supervision and training related to the prosecutor’s basic trial advocacy responsibilities are prosecutorial, not administrative.76 Van de Kamp, 555 U.S. at 345–48. Specifically, in Van de Kamp, the plaintiff asserted that the district attorney’s office management failed to train and supervise their line prosecutors on the disclosure of impeachment material to defendants, and failed to implement a system to access that information. Id. at 344. The Court held that these responsibilities are distinct from “administrative duties concerning . . . workplace hiring, payroll administration, the maintenance of physical facilities, and the like.”

So there is the potential for prosecutorial liability when it comes to, say, racially discriminatory hiring practices, or failure to use two-ply toilet paper in the restrooms (ouch), but not when an office policy creates a system designed to preclude the trial assistant from knowing how much a witness was paid to testify against a defendant, or failure to train the prosecutor as to his duty under Brady to find out whether his witness was bribed and disclose it.

Is there no way to hold a prosecutor accountable?

It is already difficult for people convicted as a result of prosecutorial error to hold someone accountable for the legal transgressions that sent them to prison. But now, a federal appeals court in New York is considering a case that could, defense lawyers say, make that challenging process all but impossible.

Under United States Supreme Court precedent, it is relatively easy to sue police officers who commit misconduct, but federal law still provides enormous protections to prosecutors. Individual lawyers in district attorneys’ offices enjoy complete immunity from being sued if they make mistakes in the courtroom — even those that lead to wrongful convictions.

Alan Feuer calls it “relatively easy” to sue police offices, which may be technically accurate as compared to prosecutors, but let’s be clear. It’s not easy. It’s extremely difficult, but it is, occasionally possible, provided the court chooses not to find a way to circumvent the violation of a “clearly established right.” But where prosecutors are acting as policy makers on behalf of the government, their Monell liability requires more, a pervasive policy causally connected to an administrative function.

The suits can be filed only under certain narrow circumstances. Defendants must show that a misstep was related to an administrative matter, like a hiring or a firing, or to an officewide policy, not just to specific prosecutorial decisions. And defendants need to prove that the courtroom errors in their own cases were not only part of a larger pattern of misconduct, but also that the prosecutors knew about the pattern and ignored it.

As if this isn’t ridiculously technical and difficult enough,** Judge Donnelly made it as close to impossible as she could by misapplying the Van de Kamp decision, which dealt with an individual prosecutor’s liability, to municipal liability. In fairness, much of the confusion stems from the Supreme Court’s amazingly conflicted rhetoric:

The type of “faulty training” claim here rests in part on a consequent error by an individual prosecutor in the midst of trial. If, as Imbler says, the threat of damages liability for such an error could lead a trial prosecutor to take account of that risk when making trial-related decisions, so, too, could the threat of more widespread liability throughout the office lead both that prosecutor and other office prosecutors to take account of such a risk. Because better training or supervision might prevent most prosecutorial errors at trial, permission to bring suit here would grant criminal defendants permission to bring claims for other trial-related training or supervisory failings. Further, such suits could “pose substantial danger of liability even to the honest prosecutor.” Imbler, 424 U.S., at 425, 424 U.S. 409.

If Justice Breyer’s opinion in Van de Kamp seems to facially conflict with Connick v. Thompson, that’s only because it does. The state of the law as to prosecutorial liability for its failure to train or crafting of administrative policies which make compliance with the law, such as Brady, essentially impossible, is a total mess.

But is Judge Donnelly’s decision that bad that it eliminates even this last vestige of potential liability for prosecutors? Well yes. Yes it is. Should the Second Circuit affirm her dismissal, a district attorney’s office could establish an actual, written policy that they will never turn over Brady material to the defense, and the worst that could happen is that a conviction is reversed should the defense learn of it later and be capable of acting on it. As for municipal liability for such a policy, there would be none available since such a policy decision would now fall under the prosecutorial function, even though it’s clearly administrative as an office policy unrelated to any specific advocacy role.

But prosecutors are the good guys, right, and you wouldn’t want prosecutors to cry, would you? Hopefully, the Second Circuit will do better than the circular, incomprehensible rhetoric coming out of the Supreme, and finally do something in Kareem Bellamy’s case that isn’t butt ugly.

*Even then, prosecutors are shielded from liability when their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

**In an amicus brief, the NYSACDL emphasizes the salutary benefits of prosecutors adhering to the Constitution, and that these benefits are furthered by not eliminating all incentives against violating Brady. While absolutely true, the prosecutorial response is that they’re saints and would never do anything deliberately unconstitutional, so no incentives are necessary.