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May 4, 2011

Justice Stevens urges Congress to authorize suits against prosecutors for misconduct

As explained in this WSJ Law Blog post, retired SCOTUS Justice Stevens gave a speech earlier this week urging Congress to authorize suits against prosecutors for misconduct.  Here are the details:

Retired Justice John Paul Stevens said Supreme Court decisions have given local prosecutors impunity for violating constitutional rights, and urged Congress to respond by authorizing victims of misconduct to sue.

In a speech Monday night to the Equal Justice Initiative, which advocates for indigent defendants, Justice Stevens criticized the court’s March decision overturning a jury’s $14 million award to an innocent man who spent 14 years on death row after prosecutors concealed evidence that could have cleared him. (Click here to see the full text of Stevens’ speech.)...

Stevens said Monday that the nature of the American criminal justice system — where most local prosecutors are elected — “creates a problem of imbalanced incentives that ought to be addressed at the state and national level.”  Because district attorneys often run on tough-on-crime platforms, the pressures to ensure convictions far outweigh the rewards for respecting rights of the accused, Stevens said.

That could be fixed, he said, by making district attorneys liable when their subordinates commit outrageous violations of constitutional rights.  Private-sector employees already are liable for their employees’ misconduct, under a legal doctrine called respondeat superior.

The doctrine “provides a powerful continuing incentive for employers to make sure that their employees are adequately trained,” Stevens said, something “especially important where electoral incentives encourage abuse.”  More important, he said, “it would produce a just result in cases like Thompson’s in which there is no dispute about the fact that he was harmed by conduct that flagrantly violated his constitutional rights.”

May 4, 2011 at 10:32 PM | Permalink

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A retired member of the hierarchy of criminal cult enterprise probably has the gnawing feeling that, if torts are a substitute for violence, then immunity gives full philosophical, intellectual, and policy justification for violence against his criminal organization.

All immunities should end by Amendment. 1) They are based on the psychotic delusion, the Sovereign speaks with the voice of God; 2) they are unauthorized, stealthy industrial policy growing the immune enterprise, and shrinking the liable enterprise. So worthless government make work jobs are exploding, productive jobs are disappearing, thanks to the self-dealing, rent seeking cult criminal; 3) they prevent improvement in the methodso of the enterprise by removing all incentives for change, with criminal prosecution being one of the worst activity conducted onour shore. These immune incompetents fail to answer 90% of serious crimes. When they have someone, there is a high chance they have the wrong guy. Then they misclassify criminals in their plea bargains. 90% false negative rate, 20% false positive rates. Unknown misclassification rate, but likely ubiquitous. This rate of utter failure represents utter disregard for the safety of the public, and failure of government's Job One and Job Last.

Posted by: Supremacy Claus | May 4, 2011 11:12:34 PM

I like Prof. Berman.

Stevens, a member of the hierarchy of the CCE, vermin really, proposes a law, he posts it.

An actual owner of the law has been demanding an Amendment ending all governmental immunities for months or years with cogent policy arguments instead of dumbass emotional appeals? Nothing.

The lawyer dumbass (Stevens, that is) doesn't seem to understand. An Amendment, not a law, is needed to reverse the Younger doctrine, the Dombrowsky doctrine, immunizing bad faith and harassment, the deliberate misinterpretation of the language of the Eleventh Amendment in many decisions, Sections 1983, 1988, and the certain reversal of any law by the self-dealing, pro-lawyer rent seeking, biased Supreme Court, as violating separation of powers.

Posted by: Supremacy Claus | May 4, 2011 11:29:20 PM

For anyone who has not read it, John Thompson eloquently wrote about his case and the prosecutors in this New York Times piece:

http://www.nytimes.com/2011/04/10/opinion/10thompson.html?_r=1

His essay begins: "I spent 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine. Because of that, prosecutors are free to do the same thing to someone else today."


Posted by: anonymous | May 4, 2011 11:29:47 PM

Isolated, yet egregious, cases of prosecutorial misconduct do not necessarily warrant civil liability. The reality is that, depending on the proposal the potential for civil liability on prosecutors will invite substantial amounts of frivolous litigation at substantial cost and may not actually sufficiently discourage acts of misconduct. That substantial cost will take away from public safety budgets for prosecution and indigent defense If it does not sufficiently deter misconduct then you will still have injustices due to misconduct, less money for prosecution and indigent defense, less public safety as a result but a happy civil tort bar litigating allegations of misconduct.

Just as not every high profile crime requires a new law (something our politicians need to learn), not every injustice requires the tort system to become involved.

How about criminally prosecuting prosecutors who intentionally withhold exculpatory evidence (especially in a death penalty case) and reducing incentives to win the big case.

Posted by: David | May 5, 2011 12:33:00 AM

Justice Stevens urges Congress to authorize suits against prosecutors for misconduct

Posted by: bestmishu | May 5, 2011 5:29:43 AM

"... the potential for civil liability on prosecutors will invite substantial amounts of frivolous litigation at substantial cost and may not actually sufficiently discourage acts of misconduct. That substantial cost will take away from public safety budgets for prosecution and indigent defense If it does not sufficiently deter misconduct then you will still have injustices due to misconduct, less money for prosecution and indigent defense, less public safety as a result but a happy civil tort bar litigating allegations of misconduct."

In simple declarative sentences, please, explain any justification for these arguments that do not apply to a welder, corporate executive, doctor, drug company, manufacturer of dynamite and chemical weapons (where strict liability applies). Why shouldn't the liability of the prosecutor be strict liability? As it reads, your argument, and that of the Supreme Court in its several decisions, read as an ipse dixit, tyranny validated solely at the point of a gun

I believe there should be liability, within professional standards of due care, not just for misconduct, but for discretion, i.e. failure to prosecute, and subsequent foreseeable damage to individuals.

The value of the activity is measured most accurately by its money budget. So it is not a very valuable activity, the public has voted by its money allocation, compared to corporate budgets, or even academic lawyer salaries.

Posted by: Supremacy Claus | May 5, 2011 6:10:00 AM

David --

I largely agree, for the same reasons I agree that the exclusionary rule should be abandoned. The punishment for misconduct should fall on the person who commits it. To diffuse responsibility elsewhere is both unjust and inefficient. It's unjust for obvous reasons, and it's inefficient because it dilutes the incentives to behave better in the future while imposing costs on a non-responsible party (in the case of the exclusionary rule, on the public and the essential truth-finging function of trials).

Posted by: Bill Otis | May 5, 2011 10:59:32 AM

Odd that this wise proposal comes from a former member of the entity that single-handedly curtailed or eliminated over the past two or three decades virtually every meaningful sanction and disincentive that previously existed to keep cops and prosecutors honest.

Posted by: John K | May 5, 2011 11:01:13 AM

"I largely agree, for the same reasons I agree that the exclusionary rule should be abandoned."

O' Yeah, let's just abandon every rule designed to protect a constitutional right, and follow the premise so eloquently stated by the government in Pottawattamie County v. McGhee that "there is no freestanding constitutional right not to be framed." While we are at it let's also continue to allow prosecutors complete immunity from liability for anything that they do to secure a conviction including everything from fabrication of evidence to intimidation to outright lying (see the Mark Shelnutt case in Columbus Ga.) That'll show 'em who is running the show.

"the potential for civil liability on prosecutors will invite substantial amounts of frivolous litigation at substantial cost and may not actually sufficiently discourage acts of misconduct."

Well, it's for sure that there is nothing that discourages misconduct now. Seems like a pretty good case could be made that if the immunity from liability was removed and those who continue to indulge in acts of prosecutorial misconduct are held personally liable, not the government entity they represent, the prosecutor him/herself personally, then there would be very few cases frivolous or otherwise to worry about.

Both of the quoted comments sound like a couple of prosecutors who just don't want to be bound by the rules of propriety and professional standards that govern everyone else.

Posted by: Thomas | May 5, 2011 11:48:39 AM

Bill, if there were no exclusionary rule, what “punishment” do you think would be sufficient to discourage the police from violating the Fourth Amendment repeatedly?

You refer to “efficiency,” but the exclusionary rule is one of the most efficient rules ever devised. The Fourth Amendment is hardly ever violated these days, because police know if they do so, the evidence is unusable, period. I can’t think of a more powerful incentive for a rule to be followed.

When you were a prosecutor, in what percentage of cases did the exclusionary rule prevent you from getting a conviction you would otherwise have obtained? I’ll bet it was very low. Police and prosecutors generally observe the Fourth Amendment, because the exclusionary rule gives them practically no reason for doing otherwise.

Posted by: Marc Shepherd | May 5, 2011 11:54:47 AM

i was just thinking the same thing thomas. That this is nothing but some joke law that would let the govt and court LOOK tlike it it's actualy doing someehing while in realty NOTHING would change.

as for you david sorry if a DA does something that if done by anyone not a DA would be a crime and result in prosecution...so should it WHEN THE DA does it!

as for the exclusionary rule being abandoned. hell man you got that wish DECADES ago! where have you been! the courts have allowed law enforcment to lie like rugs for years and still get it all in no matter how bad they are at it and how often they are caught!

Posted by: rodsmith | May 5, 2011 12:00:18 PM

Bill,

You are coming along. May you someday find first gear.

Posted by: Anonomonopoeia | May 5, 2011 12:04:35 PM

I always thought that one of the major rationales for immunity was: "even if a relatively small percentage of these claims have merit, and in a perfect world ought to be eligible for civil redress, it is obvious that the very large majority of these claims are going to be baseless (or frivolous and malicious), and the system just can't handle having 50 or 100 bad claims for every good one, e.g., because it's going to be very difficult to get good and competent people to want to be prosecutors and police if, even when they've done their jobs properly, are still going to have to go through the civil-litigation wringer (where the standard of proof at trial doesn't have a thumb on the scale in the defense's favor as it does in criminal cases) before they can (hopefully--if the jury gets it right) vindicates them, so that the relatively small number of people with half-decent claims have their day in court." In other words, a system in which the baby (a potentially meritorious claim) has to be thrown out a small amount of the time, may not be optimal but is preferable to one in which the system drowns in the bathwater (all of the bad claims) that aren't thrown out.

Posted by: guest | May 5, 2011 1:25:41 PM

Justice Stevens' comments are available here:

http://online.wsj.com/public/resources/documents/stevens.pdf

He discusses Connick v. Thompson and explains that immunity for prosecutors is currently the rule only because of what Judge Posner described as "historical misunderstandings." He notes the dangerous perverse incentives that the rule creates. Prosecutors are elected on the basis of their aggressiveness, and if their offices simultaneously have full immunity, there is literally no limit on misconduct. Prosecutorial misconduct is in this sense systematically incentivized (and to be completely expected) as a result of the Supreme Court's historical error, which it perpetuated in Connick v. Thompson.

Posted by: James | May 5, 2011 1:43:31 PM

"a system in which the baby (a potentially meritorious claim) has to be thrown out a small amount of the time, may not be optimal but is preferable to one in which the system drowns in the bathwater"

Perhaps so.........unless you just happen to be the baby that is thrown out.

Posted by: Thomas | May 5, 2011 3:10:57 PM

Over at the "Grits For Breakfast" blog, http://gritsforbreakfast.blogspot.com/, there is this recent post.

"Eliminate 'judge-made' immunity for prosecutor misconduct"

Good timing Grits.

Posted by: Thomas | May 5, 2011 3:35:35 PM

@Thomas:

"Perhaps so.........unless you just happen to be the baby that is thrown out."

No one is arguing that blocking even potentially meritorious claims is an optimal solution. Any defense, be it immunity or even a statute of limitations, is by definition going to cause at least some potentially meritorious claims to be dismissed.

But do you disagree with the premises that, without immunity, (1) the large majority of the cases would be baseless (with many frivolous or malicious); (2) few of the cases would appropriately be dismissed at the motion-to-dismiss stage, meaning that most would go at least to the point at which police/prosecutors would have to go through depositions/discovery and many or most of those cases would go to trial; and (3) the prospect of being routinely dragged through the civil litigation process would be a significant deterrent to honest and competent individuals' willingness to serve as police/prosecutors?

Posted by: guest | May 5, 2011 3:53:21 PM

Marc --

"Bill, if there were no exclusionary rule, what 'punishment' do you think would be sufficient to discourage the police from violating the Fourth Amendment repeatedly?"

Your question seems to rest on the assumption that that the natural tendency of the police is to violate the law of search and seizure. That is not my experience. Such violations are often alleged but seldom shown. Police tend to be rule-oriented. Some people (John K comes to mind) see a rogue or a Nazi in every uniform, but that is just not so. The rote attribution of bad faith to the police is a product of ideology, not fact.

To answer your question directly: The better sanction would be to fine the misbehaving officer, and require that he pay it personally rather than be reimbursed. The amount of the fine would be pegged to the seriousness of the breach and the amount the court determines is needed to create effective deterrence.

A cop has a professional stake, but not a personal one, in getting the evidence admitted; it's no skin off his back if it gets excluded, and he will just be regarded down at the station house as the victim of an ill-tempered judge. Meanwhile, exclusion creates a cost to the core truth-finding function of a trial. It turns out to be the jury that pays the price.

A cop will have a pocketbook stake in a fine he has to pay. I guarantee you this will get his attention; generally, cops don't make that much.

"You refer to 'efficiency,' but the exclusionary rule is one of the most efficient rules ever devised."

If one believes, as I do, that the primary purpose of a trial is to establish the facts -- thus to separate guilty defendants from innocent ones -- then the exclusionary rule is one of the LEAST effecient mechanisms in the law, because only the guilty benefit by it. Innocent people get no advantage from suppression; to the contrary, the more facts get put on display, the better off they are.

"When you were a prosecutor, in what percentage of cases did the exclusionary rule prevent you from getting a conviction you would otherwise have obtained? I’ll bet it was very low."

You would bet right.

"Police and prosecutors generally observe the Fourth Amendment, because the exclusionary rule gives them practically no reason for doing otherwise."

As noted, police obey the Fourth Amendment because they are tempermentally inclined to follow the rules and because that's their training. But for however that may be, why keep one means of enforcement (a means that is not in the text of the Constitution, and was invented more than a century after the Founding) when we could adopt a system where the personal incentives for compliance are sharper than they are now and the social costs of non-compliance are ameliorated?

P.S. You might find interesting this July 2008 Adam Liptak article in the NYT, pointing out that the USA has the most rigid exclusionary rule in the world, and the European practice is a good deal more refined: http://www.nytimes.com/2008/07/19/us/19exclude.html.

Posted by: Bill Otis | May 5, 2011 4:47:51 PM

"But do you disagree with the premises that, without immunity, (1) the large majority of the cases would be baseless (with many frivolous or malicious)"

On what do you base this question? Is there some basis in fact or is it just your "what if" opinion? Since there is no immunity, thus very few challenges to the perpetrators of prosecutorial misconduct, there would seem to be no basis in fact that cases seeking redress would be "frivolous or malicious".

(2) "few of the cases would appropriately be dismissed at the motion-to-dismiss stage, meaning that most would go at least to the point at which police/prosecutors would have to go through depositions/discovery and many or most of those cases would go to trial"

Same question as in (1), fact or "what if". But, if the shoe fits...........

(3) the prospect of being routinely dragged through the civil litigation process would be a significant deterrent to honest and competent individuals' willingness to serve as police/prosecutors?

Nope, if they are honest they should and in all probability would have no fear of being held to the same standards to which every other professional person on the planet has to answer. Willingness to serve as police/prosecutors would no more be effected by a requirement not to lie, cheat and steal than would the willingness to serve as a defense attorney. A position BTW that has no immunity yet you see very little outcry about the "rampant" defense misconduct in this country. Wonder why that is?????

Posted by: Thomas | May 5, 2011 6:19:00 PM

Before Connick there was the seminal 1976 case of Imbler v. Pachtman, which no one has even mentioned. Imbler was written by that notorious dope and fascist thug, Lewis Powell, with Potter Stewart and Harry Blackmun going along in full. (There were no dissents). There was a three-Justice concurrence (White, with Brennan and Marshall), which agreed with the outcome but thought the majority's lanugage was overbroad.

Imbler is available at: http://supreme.justia.com/us/424/409/.

Posted by: Bill Otis | May 5, 2011 8:34:10 PM

Thomas: Prosecutors do not have "complete immunity from liability for anything that they do to secure a conviction including everything from fabrication of evidence to intimidation to outright lying." Each and every one can be criminally prosecuted for such conduct and just as the Feds go after local cops they can go after prosecutors too.

To say that there "is nothing that discourages misconduct now" is absurd. Morality and ethics are strong motivators for the vast majority of prosecutors. You act as if all prosecutors are predisposed to misconduct. For the extremely few who are predisposed to misconduct there is criminal prosecution, disbarment, reputational harm and loss of employment as incentives to follow the law. In my county, the prosecutors who got fired for improper conduct (not related to prosecutorial misconduct but calling into question their integrity), are defense attorneys now. Just an observation.

While I am a prosecutor, your comment that I sound "like [a] prosecutor[] who just do[es]n't want to be bound by the rules of propriety and professional standards that govern everyone else" shows you know very little about me and ignores the point I was making. Civil liability is not some gospel from heaven, it is one of many ways to compensate for harm and incentivize behavior. There are other ways and some of them in the aggregate may be better. Justice Stevens thinks it is civil liability, I do not for the reasons in my first post.

"Since there is no immunity, thus very few challenges to the perpetrators of prosecutorial misconduct, there would seem to be no basis in fact that cases seeking redress would be 'frivolous or malicious'".

This ignores the many, many claims of prosecutorial misconduct on appeal by lawyers for convicted defendants. The vast majority are found not to be misconduct and frankly these days, such an allegation is thrown out for court consideration only slightly less frequently that ineffective assistance of counsel, also mostly found to be baseless.

rodsmith: there is no immunity from criminal prosecution for prosecutors committing crimes so each and every time a prosecutor frames an innocent person or knowingly fabricates evidence they can [and should] be prosecuted.

Posted by: David | May 5, 2011 10:24:02 PM

David --

Another distinction that gets missed is that what counts as misconduct for (a) prosecutors vs. (b) defense counsel are polar opposites.

The law requires prosecutors to DIVULGE evidence adverse to their case, but requires (or at the very minimum strongly encourages) defense counsel to CONCEAL it. Thus disingenuousness is condemned in prosecutors while it is accepted, if not welcomed, in their adversaries.

We're all aware of the historical pedigree of the reasons for this as the state of play, but disingenuousness is disingenuousness no matter who's doing it.

Posted by: Bill Otis | May 5, 2011 10:37:39 PM

@ Thomas:

"On what do you base this question? Is there some basis in fact or is it just your "what if" opinion? Since there is no immunity, thus very few challenges to the perpetrators of prosecutorial misconduct, there would seem to be no basis in fact that cases seeking redress would be "frivolous or malicious".

Seriously? Many such suits are filed even now, even though it's largely an exercise in futility, because the cases are dismissed or resolved at the summary judgment stage on the basis of immunity.

I didn't think anyone would quarrel with the proposition that, if the immunity doctrines ceased to exist and filing these types of suits ceased to be largely an exercise in futility, the number of suits would naturally increase.

"Nope, if they are honest they should and in all probability would have no fear of being held to the same standards to which every other professional person on the planet has to answer."

Do you disagree that, unlike "every other professional person on the planet," prosecutors would naturally have a large built-in class of plaintiffs who would be only too happy to sue them (and that the costs of suit are asymmetrical)?
Surely you recognize that guilty-and-in-prison offenders -- who often (not always but often) prefer to blame others for their situation -- are (a) in a position to have a big axe to grind, (b) have lots of time to nurture their sense of grievance and sue (again, I'm just talking for now about those whose suits would be baseless), (c) have not that much to lose, and (d) are in a position to impose asymmetric costs on adversaries by suing them? It's not the same for civil practitioners, doctors, dentists, accountants, etc., who may be sued for malpractice.

"Willingness to serve as police/prosecutors would no more be effected by a requirement not to lie, cheat and steal than would the willingness to serve as a defense attorney. Yes, but the whole problem is that the
A position BTW that has no immunity yet you see very little outcry about the "rampant" defense misconduct in this country. Wonder why that is?????"

I'm not sure I agree or even understand. First of all, most (although not all) of the entire postconviction collateral review process in state and federal courts consists of the airing of accusations that defense counsel performed so incompetently or disloyally as to violate the client's constitutional right to counsel. Second, there is unquestionably misconduct by some defense counsel in this country; how much outcry about it you "see" may be a function of where and how hard you're looking (or not looking). Part of the reason, although not all of it, stems from the fact that there is an appeals process for convictions, but acquittals (however obtained) cannot be appealed or challenged. Another part of the reason is that the conduct of prosecutors is held to a higher standard and greater scrutiny than that of defense counsel (and people assume that defense counsel may find themselves in "gray areas" that prosecutors are expected to steer well clear of). Second, all that having been said, if barriers to suing one's own criminal defense counsel for malpractice were lifted, defense counsel (and I'm not speaking of the ones who in fact performed incompetently) would be absolutely bombarded with lawsuits from disgruntled former clients.

Posted by: guest | May 5, 2011 10:39:39 PM

david you want to come out of that dream world your in. You must have missed the recent hearing in front of the u.s. suspreme court where one of our great justice department lawyers had the gaul to tell the court that there "was no right NOT to be framed"

plus people might not be so pissed if EVEN ONCE a prosecutor was actualy punished for some of the crimes they comitt and not REWARDED with a promotion!

and no i dont' consider nefong's ONE DAY in jail a punishment. that was a joke. The duke boys spent more time in jail getting bonded out then he did AFTER his so-called conviction!

Posted by: rodsmith | May 6, 2011 12:15:54 AM


In response to those who mention criminal liability: actually, as Prof. Margaret Johns states in her 2005 article on prosecutorial immunity, any real accountability for prosecutors, or liability whatsoever for such misconduct and ensuing egregious harm, is extremely rare:


“…just as the adversary process fails to prevent or correct prosecutorial misconduct, disciplinary proceedings are also inadequate to address the problem because they are rarely instituted against prosecutors. Specifically, the report by the Center for Public Integrity found that since 1970 there were more than 2000 cases of prosecutorial misconduct requiring appellate correction for harmful error. But there were only forty-four instances in which disciplinary action was taken and only two disbarments. Another study apparently found that from 1886 to 2000 there were only 100 cases of disciplinary proceedings against prosecutors, less than one per year across the entire country. And although the Chicago Tribune study found 381 reversed convictions resulting from prosecutorial misconduct in suppressing exculpatory evidence and introducing false evidence, it found not a single instance in which the prosecutor received a public sanction.

And finally, while in theory prosecutors could be criminally prosecuted for their misconduct, in fact they almost never are.127 Specifically, 18 U.S.C. § 242 provides criminal liability for government officials who violate constitutional protections.128 But since § 242 was adopted in 1866,129 research discloses only one conviction of a prosecutor under this statute.130 Indeed, although the Supreme Court cited § 242 as a basis for criminally prosecuting prosecutors who engage in misconduct, the Court cited no case in which this has actually happened.

In short, prosecutorial misconduct is alarmingly common, and there is no corrective mechanism, no accountability, no effective deterrent, and—because of prosecutorial immunities—often no civil remedy."

Posted by: anonymous | May 6, 2011 2:19:33 AM

If Bill Otis thinks we should abolish the exclusionary rule because it's not used in Europe, I'm sure he'd accept the same argument for the death penalty ... right?

Posted by: Gritsforbreakfast | May 6, 2011 8:18:48 AM

"If Bill Otis thinks we should abolish the exclusionary rule because it's not used in Europe, I'm sure he'd accept the same argument for the death penalty ... right?"

And if Grits thinks we should aboligh the death penalty because it's not used in Europe, I'm sure he'd accept the same argument for the exclusionary rule....right?

This kind of argument is, of course, so much silliness. At no point did I say that we should abolish the exclusionary rule BECAUSE it's not used in Europe. (For that matter, I didn't say it's not used in Europe. I said that its use is "more refined" in Europe, which it is. But as usual, Grits just re-writes what the opposition says to suit the characterization he prefers). I pointed out the European experience as a matter of historical fact -- which is not contested -- not as an argument.

I did, however, make an argument in the preceding 11 paragraphs about why the exclusionary rule should be replaced (that its social costs are too high and that there's a more targeted and effective alternative). To that argument, not a single word of rebuttal has been attempted.

Posted by: Bill Otis | May 6, 2011 9:04:55 AM

guest --

First class analysis. I also continue to recommend Justice Powell's opinion for the Court in Imbler v. Pachtman, 424 U.S. 409 (1976), available here, http://scholar.google.com/scholar_case?case=5758861728040203406&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

I note again that there was no dissent to the Powell opinion; and that it commanded the full support of Justice Harry "no-tinkering-with-the-machinery-of-death" Blackmun; and that its result -- affirming the doctrine of absolute immunity -- was specifically concurred in by Justices White, Brennan and Marshall, although they thought the Court's language was too broad. The first two sentences of the concurrence state:

"I concur in the judgment of the Court and in much of its reasoning. I agree with the Court that the gravamen of the complaint in this case is that the prosecutor knowingly used perjured testimony; and that a prosecutor is absolutely immune from suit for money damages under 42 U. S. C. § 1983 for presentation of testimony later determined to have been false, where the presentation of such testimony is alleged to have been unconstitutional solely because the prosecutor did not believe it or should not have believed it to be true."

Posted by: Bill Otis | May 6, 2011 9:27:00 AM

Thanks, David, for noting all the many terrible things that CAN happen to prosecutors who bend or break the rules. Now, please, tell us how often any of those things actually happen.

OK, Nifong is one. Now what else have you got?

BTW: Few more-ridiculous things have been written on this blog than guest's assertion the criminal courts system tilt in favor of defense counsel. Those foolish enough to buy such a grimly hilarious notion owe it to themselves to consider the alternate view offered here:

http://www.injusticebusters.com/05/Las_Vegas_prosecutors.shtml

Posted by: John K | May 7, 2011 3:04:50 PM

John K.: Tell me how many times a prosecutor has actually framed an innocent person where it could be proven BRD. I suspect the reason you do not hear about it, is because it is extremely, extremely rare. When it does happen, give me that case I will prosecute.

In the last five years, the California State Bar has disciplined several prosecutors for lesser conduct. They do not make the national papers, but they have still been sanctioned, including suspension.

Additionally, the California State Bar agreed to take up a review of every case identified by the Northern California Innocent Project in their study of prosecutorial misconduct in California. While I doubt most of those cases will result in discipline, that may be more a function of NCIPs misleading description of the court of appeal opinions and claiming misconduct than an abdication of its discipline function.

Posted by: David | May 7, 2011 5:55:32 PM

Bill: What are the policy justifications for prosecutorial immunity from civil liability for deviations from professional standards of due care that result in damages?

From your citation: "To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. 424*424 There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement." Pearson v. Reed, 6 Cal. App. 2d 277, 287, 44 P. 2d 592, 597 (1935)."

Why the prosecutor, and not the welder? The welder is a productive member of society. The prosecutor is in utter failure, a worthless government worker, causing massive criminality to prevail in the nation.

Posted by: Supremacy Claus | May 8, 2011 1:47:01 AM

SC --

"Why the prosecutor, and not the welder?"

Because, among other reasons, welders are in private contractual relationships with their customers where they can work out in inadvance how disputes will be settled. There is no such relationship between criminal and prosecutor. The criminal wants nothing from the prosecutor other than to disable him. That's his best outcome.

Without immunity, the prosecutor would have to answer 100 or 200 or 5000 trifling, vexatious lawsuits filed by even the most obviously guilty and menacing of defendants. One can scarcely think of a better way to tie down the prosecutor's office so that it would never be able to put away the guilty (and thus be even less effective than what you criticize it for being now).

And there's the practical side as well. People who sue welders have to bear their own costs and invest their own time, so they have an incentive to avoid frivolous claims. People who sue prosecutors are almost all in forma pauperus (indigent) and have their costs paid for them, either by the taxpayers or by pro bono groups and firms. Mostly they're just sitting there in prison either watching TV or going to some rehab program in which they have no interest. So we have a huge class of plaintiffs with time on their hands, no costs to bear and nothing to lose by trying. Plus they gain "street cred" with their fellow inmates by being a "tough guy" with the DA.

There are occasional instances where the doctrine of immunity seems unfair. But there are occasional instances where every legal doctrine ever created seems unfair. The overall advantages and disadvantages of having it are such that the judgment in Imber was unanimous. Even Brennan and Marshall explicitly approved of absolute immunity and "much of the reasoning" supporting it.

Finally, thank you for actually addressing the merits of Imbler, something those on this board who view themselves as superior to you have refused to do.

Posted by: Bill Otis | May 8, 2011 9:41:34 AM

Mr Bill: "The criminal wants nothing from the prosecutor other than to disable him. That's his best outcome."

Right. That is why over 95% of all convictions are the result of guilty pleas. They didn't get your memo.

The fact of the matter is that almost every defendant does not mind a fair sentence provided the government doesn't try to cheat.

Posted by: George | May 8, 2011 6:52:02 PM

George --

"That is why over 95% of all convictions are the result of guilty pleas. They didn't get your memo."

Nope. The reason there are so many guilty pleas is that the defendant did it, he knows the government can prove it, he'd rather not have it all laid out in gory detail before the judge, and the prosecutor will give away part of the case to save the work and uncertainty of trial.

"The fact of the matter is that almost every defendant does not mind a fair sentence provided the government doesn't try to cheat."

You must have been dealing with a different batch of defendants from the ones that appeared in the Eastern District of Virginia. To them, a "fair" sentence was zilch. And their version of government "cheating" was calling witnesses.

Posted by: Bill Otis | May 8, 2011 9:26:42 PM

The reason there are so many guilty pleas is that the vast majority of defendants do not have the money to pay an attorney.

Posted by: anon2 | May 9, 2011 1:06:53 AM

anon2 --

"The reason there are so many guilty pleas is that the vast majority of defendants do not have the money to pay an attorney."

Flat-out false.

First, for felonies, attorneys, often PD's, are provided without charge to those who can't afford them. This has been the rule for decades. You missed it?

Second, forget the line that PD's are no good. They're plenty good. I know; I squared off with them for many years. It's true that they're overworked, but so are the prosecutors.

Third, as I noted in giving an answer you don't even attempt to refute, the reason there are so many guilty pleas is that the defendant did it, he knows the government can prove it, he'd rather not have it all laid out in gory detail before the judge, and the prosecutor will give away part of the case to save the work and uncertainty of trial.

The doggedness with which the extremist defense bar clings to the myth that people wind up as defendants strictly out of police/prosecutor malice -- and not because they are provably, factually guilty -- is just mind blowing. Have any of you actually been down to the courthouse and seen what goes on there? Is there an army of innocents being paraded through as defendants?

Guys, please, give it a rest.


Posted by: Bill Otis | May 9, 2011 9:50:23 AM

@ John K:

"BTW: Few more-ridiculous things have been written on this blog than guest's assertion the criminal courts system tilt in favor of defense counsel."

I take it that you recognize that things like the burden of proof and discovery obligations in criminal cases are asymmetrical by design but don't accept that the effect is meaningful. Do you really doubt that defendants are acquitted by juries that, although they would have found with little difficultly that the defendant was probably guilty, can't bring themselves to say that they're convinced beyond a reasonable doubt? And, of course, in civil litigation, a defendant's failure or inability to provide a satisfactory explanation for things within his or her ability to explain would be considered a damning failure, and often a basis for losing the case at the summary judgment stage; in criminal cases it is forbidden to argue or suggest that the defendant's remaining silent is inconsistent with his being innocent. (Consider also speedy trial rules, which are intended to hold prosecutors' feet to the fire to bring cases to trial reasonably promptly -- even when actually being brought to trial promptly is the last thing in the world the defense wants.)

My point, of course, isn't to criticize the system for these built-in asymmetries; and I recognize that one can argue that they're necessary to compensate for the disadvantage of simply being the person the government has arrested, charged, and placed in the dock. But I don't see how it's "ridiculous" to acknowledge that these asymmetries exist.

Posted by: guest | May 9, 2011 12:51:55 PM

David, I don't recall accusing prosecutors of framing innocents. They do, however, foster and drive a system that makes it difficult, if not impossible, for innocents and the wrongly accused to get a fair shake.

Consider these three former prosecutors: Carol Pearce McCarthy, Kenneth Wadas, Patrick Quinn.

Here's the Chicago Tribune story laying it out: http://www.truthinjustice.org/cookcounty.htm

You might have difficulty prosecuting them, though. They were all appointed to the bench after surviving exposure and reprimands of the sort I suppose you had in mind. Reports of the prosecutors' abominable misconduct were indeed published, but their identities were shielded and their misconduct had no ill effects on their rise to the bench.

Here's a glimpse of what's in the Trib's story:

"Here is what usually happens when a prosecutor cheats:

"Appellate courts uphold the conviction, admonishing the prosecutor not to do it again. When a court does overturn the conviction, it shields the prosecutor from embarrassment, omitting his or her name from the opinion or releasing its ruling in a way that few eyes ever see it.

"In their rulings, appellate justices sometimes urge lawyer disciplinary officials to punish prosecutors, but such prompting is hollow. Courts have referred numerous prosecutors to the Illinois agency that polices lawyers only to see investigative files get opened and closed with no punishment levied, the Tribune found.

"There is little threat of financial penalties from a civil lawsuit because courts have granted prosecutors immunity. Courts, though, have carved out narrow exceptions, and some defendants have won settlements.

"And only rarely are criminal charges filed. Few prosecutors nationally have been indicted, and they were acquitted or, at worst, convicted of a misdemeanor and fined. Three former DuPage County prosecutors face trial next week on charges of framing former Death Row inmate Rolando Cruz."

Posted by: John K | May 9, 2011 7:00:17 PM

guest, with their scary powers and the overwhelming, virtually unlimited resources at prosecutors' disposal, proving guilt BRD hardly seems like an unreasonable standard...not in a free society that truly values citizens and liberty.

No need for me to make the counter arguments to your asymmetry observations and your assertion speedy trial requirements work against prosecutors. Somebody else already did it better than I could:

http://www.justiceontrial.org/articles/speedy.htm

Posted by: John K | May 9, 2011 7:45:12 PM

@ JohnK:

"and the overwhelming, virtually unlimited resources at prosecutors' disposal"

Obviously, you have never worked as a prosecutor. (Indeed, I'd tend to doubt that you've worked as a public defender or in any other capacity where you'd be handling criminal cases on a regular basis.)

"proving guilt BRD hardly seems like an unreasonable standard...not in a free society that truly values citizens and liberty."

Are you arguing that the requirement of proving guilt BRD isn't asymmetrical? Or that the BRD threshold is too low? (And, if the latter, what standard would you propose?) I'm not arguing that BRD is undesirable, just that it's asymmetrical.

If you'd like to summarize the pertinent conclusions in the article you've pasted the link to, please do. But I'm not terribly interested in reading the article myself. I don't really have the time, and in any event the domain name alone tends to suggest that the site is by and for people who already have predictable conclusions ready before they do their analyses. It doesn't sound very interesting. If I'm wrong and you'd like to summarize the pertinent points, go for it.

Posted by: guest | May 9, 2011 10:42:38 PM

No prosecutor, regardless of how relatively meager the resources of the office might be, has to beg siblings, parents and grandparents to borrow on their homes to finance any particular prosecution.

Few defendants can match the time, energy and money expended on cops/agents, lab people and others who typically work weeks or months or years soliciting and sometimes coercing helpful testimony.

No defendant can legally solicit helpful testimony by, say, threatening potential witnesses with longer prison sentences if they don't help.

With speedy trial requirements, even if the money were there to pay for it defendants typically don't have months or years to build/refute cases.

Prosecutors can shrink the time frame further by concealing major elements of their case (thanks to the "ham-sandwich" factor of truly asymmetrical grand jury operations) until shortly before trials are to begin.

MSM typically take what the authorities give them as gospel. They routinely report coerced plea agreements by co-defendants as confessions (tainting jury pools against co-defendants who insist on trials). Only in the most news-worthy cases do they aggressively test the case prosecutors show them.

I could go on.

Posted by: John K | May 10, 2011 8:43:29 AM

@ John K: "No defendant can legally solicit helpful testimony by, say, threatening potential witnesses with longer prison sentences if they don't help."

Please explain what you mean by this: do you mean "decline to offer other participants in the crime a plea agreement on relatively advantageous terms" if they decline to cooperate?

"They routinely report coerced plea agreements by co-defendants as confessions (tainting jury pools against co-defendants who insist on trials). Only in the most news-worthy cases do they aggressively test the case prosecutors show them."

Do you believe that all plea agreements that are accepted (in part) because they offer the defendant the likelihood of a shorter sentence than the defendant might have expected had the defendant been convicted at trial "coerced?" Are you one of those who believes that no defendant should be allowed to plead guilty and that every defendant who is charged with a crime have to go to trial -- whether he wants to or not?

Posted by: guest | May 10, 2011 10:53:29 AM

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