Hard as it is to hold a cop accountable for his violation of constitutional rights, given Qualified Immunity, liability does occasionally accrue. Yet, the prosecutor holding his hand walks away unscathed because his immunity isn’t qualified, but absolute.* Senior United States District Judge Frederic Block of the Eastern District of New York says it’s time to end this travesty.
According to Taylor v. Kavanagh, based upon Supreme Court law, “The falsification of evidence and the coercion of witnesses…have been held to be prosecutorial activities for which absolute immunity applies. Similarly, because a prosecutor is acting as an advocate in a judicial proceeding, the solicitation and subornation of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial does not create liability in damages.”
Subornation of perjury? Concealment of evidence? Introduction of illegally-seized evidence? Not the sort of stuff that brings the majesty of the law to mind, that gives you faith in a system that puts people in cages. So when these acts, some of which are crimes, happen, what possible reason could there be to give the wrongdoers, the criminals, a free pass?
The law goes on to say that the rationale for this approach is “sound, for these protected activities, while deplorable, involve decisions of judgment affecting the course of a prosecution.”
The rationale arises from some assumptions about liability, about burdens to the system, about abuse by defendants and the lawyers who enable them, to take advantage of the poor prosecutors. If prosecutors weren’t cloaked in absolute immunity, they would be challenged over every discretionary decision, consumed in a tidal wave of litigation, hog-tied by prisoner lawsuits and incapable of doing their critical jobs of
hiding the evidence protecting society from criminals.
Worse still, the fear of litigation would influence their actions, their choices, and they would be unable to be fearless in their prosecutions. Society would suffer if prosecutors showed reluctance to do their job by not knowingly putting lying witnesses on the stand or disclosing exculpatory evidence to the defense.
Plus, it could cost the taxpayers a lot of money.
Because of the present status of the law, the prosecutors responsible for the wrongful convictions have neither been held criminally nor civilly responsible for their shameful conduct. Also troubling, taxpayers have had to foot the bill for millions of dollars in settlements from New York City and the State of New York, which are on the hook for the prosecutors’ misdeeds, and more are undoubtedly in the hopper.
Judge Block argues that there is no justification for the protection of dirty prosecutors.
First, the cloak of absolute immunity should judicially or legislatively be lifted. Police officers do not have it and they are held accountable in courts of law for their egregious behavior. We wisely do not give our law enforcement officers, or even the President, carte blanche to do as they please; bad prosecutors should similarly be accountable.
To the extent the cry is that liability would bring a tidal wave down on prosecutors, stymie their ability to do their job, that hasn’t been the case with cops under Qualified Immunity. If anything, it provides a response that’s unduly limited and inadequate to address the wrongs they commit. The “clearly established” prong of § 1983 liability is a hurdle that can be manipulated, through the excessive parsing of nuanced details, to pretty much cover any abuse a cop can deliver if a court is so inclined.
Second, steps can be taken by the legal establishment to punish such behavior. All prosecutors are lawyers and their licenses to practice law require them to abide by legally prescribed canons of ethics enforceable by the bar and the courts.
An alternative to liability is discipline, from reprimand to disbarment. Despite what former Attorney General Dick Thornburgh thought, prosecutors are still lawyers, and are still expected to comply with the ethical demands (which aren’t all that strenuous to begin with) under which all lawyers labor.
Third, prosecutors who intentionally withhold exculpatory evidence resulting in a wrongful conviction should be prosecuted for obstruction of justice. The good ones need not be concerned, but the bad “deplorable” ones should know that there might be civil, and even criminal, consequences for misconduct.
Of the wrongs that most frequently escape detection, concealment of Brady material is the most damaging. Whether to cop a plea or go to trial, what the strategy will be, what the jury learns, almost the entirety of the judicial process is dependent on what the evidence shows. If it shows innocence, or that the prosecution’s witnesses are not credible, this undermines the system.
When a prosecutor deliberately engages in this concealment, because no one but him knows what evidence he has but withholds, he not only puts a potentially innocent person in prison, but does so at the expense of the efficacy of the legal system. Our system relies on the good faith of its participants, and the duty of a prosecutor is not to win, but to “do justice.” They can fight hard; they cannot fight dirty.
We all hold dear to the time-honored notion that “no one is above the law.” Truly horrendous prosecutors who have put innocent people in jail should not be an exception.
The fact is that prosecutorial misconduct happens, and happens with far greater frequency than anyone wants to accept. Will there be issues arising from the elimination of absolute immunity for prosecutors? No doubt. But there are issues arising from the malfeasance, the impropriety, the criminal conduct of prosecutors as well. They, too, demand redress.
Prosecutors are valuable and necessary to a functioning society. Good prosecutors. Not dirty ones. And dirty prosecutors should no more be allowed to walk away from their wrongdoing than anyone else.
*When a prosecutor acts in an investigatory function, rather than a prosecutorial function, the immunity conferred is qualified, as with law enforcement. But in the prosecutorial function, immunity is absolute.