End Immunity For The Dirty Prosecutor

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.

30 thoughts on “End Immunity For The Dirty Prosecutor

  1. Dan

    Agree completely, but then, I’m biased–my brother-in-law suffered under an eight-year-long prosecution (which finally resulted in a two-word verdict after an eight-month-long trial, with no defense witnesses, last August). But my sympathy for the taxpayers is tempered by the fact that they elect the head prosecutor, who then controls (or should control) his subordinates.

    1. SHG Post author

      Anecdotal experience is always valuable, which is why we let the families of victims decide punishment, because of their objectivity and detachment.

  2. B. McLeod

    It really goes all the way back to Merrye Olde, where the prosecutor was just doing the bidding of the monarch or crown governor, so of course prosecutors got a pass. With the independence prosecutors have now, the original underpinnings are gone.

  3. Skink

    It doesn’t “create liability in damages.” Right, but it wouldn’t be collectible if there were damages. Not much will come from the individual, and the governments are usually not liable for intentional acts. That’s how sovereign immunity works. Damages aren’t the answer.

    If their shenanigans violate Bar rules or are crimes, they can be disbarred and charged. The remedy exists, but it doesn’t seem to be used often enough.

    “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.”
    Not so fast. Stuff is clearly established if a state supreme court (or the equivalent term in your courts), federal circuit or the Supreme Court of The United States previously found a constitutional violation on the same basis. A whole bunch of stuff is “clearly established” as violative, including excessive force, constitutionally inadequate medical care, and yes, perjured or unconstitutionally-coerced testimony. The protection is not as broad as it once was. Because smart lawyers.

    1. PseudonymousKid

      “The remedy exists, but it doesn’t seem to be used often enough.”

      As the kids say, truth. We’re supposed to be a self-regulating profession, but that’s not happening. Light the Disciplinary Counsel signal and wait for that Dark Knight to swoop in and punish these criminal lawyers. You’ll be waiting indefinitely. That’s the problem.

        1. Skink

          Make it happen more. Bad lawyers should be banished. Criminal lawyers should be punished. I’m all for it. But damages in lawsuits doesn’t offer a solution.

            1. PseudonymousKid

              Right? I’ve never met a wrong that didn’t have damages. Stupid defense bar making my clients prove stuff is so annoying. Give us statutory damages and attorney fees, please.

            2. Skink

              I see what you did.
              I don’t–if their wives can’t buy fancy shoes, neither can mine. That happening could catch me a bullet at home. I love plaintiff’s lawyers because I want to live a couple more years.

    2. SHG Post author

      It’s always interesting to see the perspectives from either side of the fence. Civil rights lawyers bitch about having to turn away 90% of their cases because they either lack adequate damages or stand little chance of success. The defense sees only those cases brought, and it’s as if the Supremes never decided White v. Pauly. If “clearly established” was so easy to establish, beggars would ride horses.

      1. Skink

        White does not represent new law. The ease of making the showing has been significantly eroded, if only because there have been so many cases. Remember, if a qualified court holds there was a constitutional violation but the violation was not clearly established, then the violation is likely clearly established going forward.

        1. SHG Post author

          Remember when the lower court had to do the first prong (“was there a constitutional violation”) before the second prong (“was it clearly established”), such that there would be an actual holding upon which subsequent plaintiffs could rely rather than “likely” as extrapolated from dicta, footnote or, perhaps, voodoo? Good times.

          1. Skink

            You know I do, and a whole bunch of courts still do it in order. Did someone promise this would be easy?

  4. PDB

    Of course, conservatives who continuously rail against “judicial activism” and “legislating from the bench” have no problem with both qualified and absolute immunity, both of which were invented by the Supremes from whole cloth.

  5. Sgt. Schultz

    Is it just me, or did Judge Block’s argument smack of an appeal to emotion , a strawman and some vapid conclusory contentions? It failed to offer any serious explanation as to why prosecutorial immunity exists, and why those reasons are wrong or outweighed. In other words, it may be his judicial view, but it was one lousy argument for it.

    1. SHG Post author

      It was a bit shy of a rigorously conceived argument, but what makes it valuable is that it comes from a sitting federal judge. It’s not often a judge (outside of a few well-known exceptions) will take a firm stand on something as controversial as this, and that alone matters.

  6. Nemo

    Seems to me that the Judge is right. If Taylor v. Kavanagh was in part premised on the belief that appellate courts would correct the convictions obtained via misconduct, we now know that the belief’s a vain one.

    Reform’s needed, sure. I just hope that in crafting an action other than legislative, Pournelle’s Iron Law* is kept in mind. Prosecutors and judges are the institution, and can be expected to resist any real changes to it.

    If nothing else, people don’t like to make their own jobs harder or more hazardous, and isn’t that what making prosecutors follow the rules or face accountability does? Judges may not be at much risk, with reform, but seeing to it that prosecutors follow the new rules would take effort on their part, effort they currently aren’t putting in. That doesn’t even begin to discuss the fact that a high percentage of them were prosecutors, first.

    *No link, but easy to google

  7. Erik H

    I wonder if the judge did anything about it? Did he recommend disbarment for the attorney in question?

  8. Billy Bob

    SHG is the Steven Hawkings of the blawgospheer.
    He discoverred the Black Hole(s) of jurisprudence worldwide.
    He makes heads explode everywhere he goes.
    Dave Matthews-breath.

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