Wednesday, May 9, 2012

Prosecutorial Immunity

Famed criminal defense attorney and co-director of the Innocence Project, Barry Scheck, wrote an editorial in The Statesman.  In it, he argues that there should be increased accountability for prosecutors who intentionally withhold exculpatory evidence.
Here is a response to Mr. Scheck from a prosecutor.

If you asked 100 people, you would have 100 different responses about what prosecutorial misconduct is.  Is it inflammatory comments on summation?  Failing to disclose exculpatory evidence?  Failing to seek out exculpatory evidence the prosecutor didn't know about?  Failure of the police to disclose evidence to the prosecutor?

We want prosecutors to make decisions that are not affected by self-interest or fear of recrimination.  We also want prosecutors to act appropriately and turn over every piece of evidence that may exculpate a person.  Prosecuting is not a win at all costs job.  We are tasked with always doing the right thing, no matter how unpopular it is. 

It is extremely rare that a prosecutor can be held civilly liable.  It is even rarer for the prosecutor to be held criminally liable.  In Texas, a criminal case is progressing against a former prosecutor turned judge.

Cases such as this grab headlines.  Wrongful convictions generate traffic to websites and allow comments and experts to rail against police and prosecutors.  Where are the stories of police acting appropriately?  What about when a conviction is upheld because the prosecution was fair and no rights were violated.  In truth, the majority of criminal cases (pleas and trials) are upheld on appeal.  Most are not determined to be wrongful convictions. 

As I've said before, groups like the Innocence Project do great, necessary work.  We just can't forget about the people on the other side who also do great, and necessary work.


  1. Amen. I have a special place in my heart for prosecutors! Have seen first hand the incredible work they do and the difference they make in the lives of victims' families!

  2. Having been on the recieving end of Fostoria Ohio prosecutor's misconduct.The guy who ran a red light into the right rear of my truck in 2005,and killed his passenger.He was a Ohio State employee,driving an Ohio State owned vehicle.I was an out of state truck driver.Now who do you think the Fostoria Municipal court covered up for? I was accused of "Vehicular Manslaughter" so they could cover up the state employee's neglience. Prosecutors will lie,and cheat to win,including omitting witness that would have cleared my name.

    1. Ron, I apologize for the experience you had. Thank you for sharing.

    2. We need to put an end to both judicial and prosecutorial immunity, which allows judges and prosecutors to commit crimes with impunity. If these people did their jobs and followed the rules they force on others they wouldn’t need immunity, but they use it as a cloak to hide behind when committing crimes against their victims. We need to have these protections of immunity removed. Doing so will eliminate most, if not all, of the criminal activity within the judicial community.

      Immunity protects judges and prosecutors from liability resulting from their so-called judicial actions. In other words, it allows them to commit crimes against their victims without impunity. For instance, judges and prosecutors are not liable for acts committed against a defendant, no matter how corrupt those acts were.

      While federal law authorizes civil suits against government officers who violate constitutional and statutory rights, the Supreme Court (former prosecutors) has insulated judges and (current) prosecutors against liability by holding that they are entitled to absolute immunity from civil damages for actions taken as advocates. In other words, former prosecutors, who are now judges have given immunity to current prosecutors who will become judges and former prosecutors who are judges.

      As a result, judges and prosecutors can lie, cheat, steal, deceive, use false and misleading evidence, suppress exculpatory evidence, and elicit false and misleading testimony, without fear that they will be held personally liable, even if they intentionally and maliciously violate the rights of innocent people, which they most assuredly do.

      Even when a wrongful conviction if reversed, judges and prosecutors rarely, if ever, face any repercussions. Professional discipline of misbehaving judges and prosecutors is exceedingly rare, and criminal charges against them are almost never brought, even in cases where they have induced perjury from witnesses and committed perjury themselves. As Ninth Circuit Court of Appeals Judge Alex Kozinski recently put it in a provocative and incisive article, “Who exactly is going to prosecute prosecutors?”

      More importantly, absolute (judicial and prosecutorial) immunity is at odds with the premises upon which the very authority of the Constitution rests. According to the Framers’ premises, government is not self-justifying–it is a means to an end, namely, the security of individual rights. But, as Chief Justice John Marshall explained in Marbury v. Madison (1803), this end cannot be realized “if the laws furnish no remedy for the violation of a vested legal right.” Civil actions against the government can help protect rights, not only by ensuring that government officials are held accountable for violating them, but by bringing information to light, through the discovery process and through impartial, evidence-based judicial engagement at trial, that makes broader, rights-protective policy changes possible. IF IMMUNITY IS GRANTED, THERE IS NO DISCOVERY PROCESS AND THERE IS NO TRIAL.

      If the men and women doing business as and calling themselves a Supreme Court is unwilling to rectify this problem, then the men and women doing business as and calling themselves a Congress can revise The Civil Rights Act of 1871, or “Section 1983,” as it is commonly known, to specify that judges and prosecutors who deprive people of constitutional or statutory rights are liable to those people just like the rest of us are when we injure someone through negligence or intentional misconduct. It is time to abolish a rule that stands as an affront, not only to the letter of federal law, but to our aspirations towards a just legal order.

  3. Hagiography for police and prosecutors saturates our media and pop culture. Have you never watched Law & Order?

  4. Re: "What about when a conviction is upheld because the prosecution was fair and no rights were violated. In truth, the majority of criminal cases (pleas and trials) are upheld on appeal."

    true, but not because "most are not determined to be wrongful convictions." Convictions are held up on appeal because our justice system values efficiency over accuracy. misleading the public into thinking defendants have adequate remedies in post-conviction court is disingenuous.

  5. With the economy the way it is, police / prosecutorial / judicial malfeasance is at an all time high. Defense lawyers are a part of the prison lobby, as well; after all, if there weren't many people to charge, they wouldn't be having clients.

    At the grass-roots level, police are rewarded with overtime court pay (this needs to go), and raises in both rank and salary. Prosecutors and judges are rewarded with special interest group money and political favors for their election campaigns.

    The corruption is all over the United States, but in Michigan it's so bad it would make Chicago politicians look like St. Peter and St. Paul. Just like the cop in Utah falsifying DUI arrests, cops can just say anybody's swerving, and make up their own breath test results --

    So yes, while corruption is more widespread than reported, there might be an honorable cop, prosecutor, and judge here and there, but they're definitely in the acute minority.

    1. Thanks for the comments, however, I have to disagree. Most lawyers, cops, and judges I know are trying to do the right thing every day. The ones who violate the laws are in the minority.

    2. Please explain how someone who operates violence and threats of violence can be honorable? A cop's only job is to FORCE compliance with the rules / say-so of faceless politician and judges and prosecutors work for and represent the very system (i.e., state) bringing the charges against an individual... what honor is there in representing the complaining party? Besides, cops, judges and prosecutors commit numerous crimes against their victims the moment they come into contact with them... these people are the real criminals. They lie, cheat, steal and murder to get what they want. Just saying...

    3. I believe there is plenty of honor in justly prosecuting the guilty and exonerating the innocent, which are the main jobs of a prosecutor.