How can this even be a question?

[nancylebov]

Supreme court considers whether it's legal for prosecutors to railroad people.

Prosecutors are normally immune from lawsuits involving work during trials. But the case heard Wednesday considers whether the immunity also includes prosecutorial work before the trial starts. A ruling is expected next year.

According to transcripts, Stephen Sanders, a lawyer representing Pottawattamie County officials, told the Supreme Court that lower courts should not fashion exceptions to prosecutorial immunity.

"If a prosecutor's absolute immunity in judicial proceedings means anything, it means that a prosecutor may not be sued because a trial has ended in a conviction," Sanders said. "Yet that is exactly what happened in this case."

Deputy Solicitor General Neal Katyal argued that if prosecutors have to worry at trial that every action they take will somehow open the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.

But Justice Sonia Sotomayor questioned him, saying, "A prosecutor is not going to flinch when he suspects evidence is perjured or fabricated?"

Anyone know whether there are states that have laws forbidding this level of misconduct?

Comments

[schemingreader.livejournal.com]

I heard this story on NPR yesterday. It is the most disgusting case of racial bias. Those men spent 25 years in prison--one of them had been scouted for college at Yale. Prosecutorial immunity! What bullshit. How can there be no recourse for someone who has been prosecuted by people who know them to be innocent of the crime?

[filkerdave.livejournal.com]

I was just thinking about the NPR story -- Nina Totenberg put it as the prosecutor's side saying, roughly, "there's no Constitutional right to not be framed for a crime"

[schemingreader.livejournal.com]

How the hell does that even fit with the concept of innocent until proven guilty? The problem here is that they're worried that if a prosecutor makes an error, they might be sued. This wasn't an error, it was criminal behavior--or if there isn't a statute to make such behavior criminal, there ought to be.

[filkerdave.livejournal.com]

Oh, I agree.

I think those prosecutors who knowingly did this should go to jail, and not be eligible for parole until they've served as long a sentence as each of those falsely convicted people served, in total.

[bradhicks.livejournal.com]

Here's my understanding of it. You won't like it; I don't like it. But here's the thinking:

1) Figuring out that the prosecution is withholding evidence and using perjured evidence is the defense attorney's job. The prosecutors' job is to obtain convictions; it's the job of the defense attorney to produce acquittals. Neither side is supposed to get sued for doing what the Constitution expects them to do.

(Never mind the fact that in, for example, my own home state the public defenders' office has approximately three times the recommended case load per attorney, and voters resolutely and flatly will not send congressmen to the state capital who have any interest in funding more public defenders. The overwhelming majority of the voters in this country have exactly zero empathy for people who've been accused of a crime.)

And 2) prosecutors aren't answerable to judges, they're answerable to voters. It's not the job of some judge to punish prosecutors for not doing their job the way he or she wants, it's the job of the voters to turn out the district attorney or attorney general who's doing the job wrong or poorly.

(But what if majority voters want prosecutors to oppress minorities? The Constitution is uncomfortably silent on that issue.)

[nancylebov.livejournal.com]

I've felt for a long time that there's something wrong (epistomologically? ethically?) with the idea that prosecuting and defending attorneys should just try as hard as they can to win (within very wide limits), but I've never been able to put a finger on it.

Maybe there should be a third "side" which is supposed to point out logical and factual errors without being biased towards any of the parties in a legal case. Judges don't seem to be terribly thorough at it.

[asakiyume.livejournal.com]

I've felt for a long time that there's something wrong (epistomologically? ethically?) with the idea that prosecuting and defending attorneys should just try as hard as they can to win (within very wide limits), but I've never been able to put a finger on it.

Same here. I understand that you want to support your side to the best degree possible, but hiding evidence and so on seems like cheating. If your client is manifestly guilty, or (since we're talking about prosecutors here) if the defendant is manifestly innocent, then trying to cheat and lie so that your side can win seems crazy wrong. ... I understand that in most cases it's not as easy as "manifestly guilty" or "manifestly innocent," but it seems like it ought to be an easy enough principle to follow.

[madfilkentist]

We're talking about deliberate falsification here. This is not within admissible bounds, either for prosecution or defense. Defense attorneys can be sanctioned for falsification.

Using deception to send someone to jail is not a matter of popularity, to be decided by the voters; nor is there any reason perjuring prosecutors should be able to continue jailing the innocent until they come up for election. The matter has to be decided on the basis of evidence, in a court.

[nancylebov.livejournal.com]

It shouldn't be within admissible bounds, but apparently it is.

IIRC, it's precedent in the US that there's no constitutional right to a trial which makes any sense whatsoever, there's just a right to a trial which fulfills certain procedural requirements.

[filkerdave.livejournal.com]

I wonder if having a detention officer take things from the attorney's desk during sentencing (http://reason.com/blog/2009/11/03/welcome-to-marikafka-county-ar) counts?

[llennhoff.livejournal.com]

You seem to have bought into what some people call It sucks to be you jurisprudence. The defense and prosecuting attorney are supposed to work to win acquittals and convictions within the law. The allegation is that the prosecutors in this case went beyond the law.

Justice Scalia is particularly fond of this kind of jurisprudence, ruling in one case that being proven innocent was not valid grounds for an appeal. If you can prove you're innocent, the executive branch should grant clemency. If they don't, that isn't the court's problem.

[nancylebov.livejournal.com]

I'm not quite sure about what you're saying about my pov.

I agree that it would be nice if the executive would step in and correct outrageously bad juris(im)prudence.[1] However, I'd like to see law and procedure make it less necessary for King Richard to come swooping in to save us from bad King John.

[1] I assume that blatant injustice will cause various sorts of bad karma.

[llennhoff.livejournal.com]

I'm sorry, this was supposed to be a reply to bradhicks, not to you.

[llennhoff.livejournal.com]

It is a matter of tradeoffs. I think Justice Scalia is concerned that the courts not get clogged up with 100 cases of people claiming they have proof of innocence post-conviction, when only 1 of those cases is true. He believes it is correct to rely on the executive to perform its clemency function when appropriate. If for whatever reason the executive fails to pull its weight, the fault lies with the executive, not the court. I'm sure he thinks that the injustice of the trials delayed by the 99 false cases exceeds the injustice of the 1 innocent case where additionally the executive fails to do its job, i.e. the chance of this happening is not 1/100 but 1/100 times the failure rate of the executive.

I disagree with him. I think the percentage of fake suits will be lower than he expects, I think the rate of executive failure will be higher than he expects, and I rate the amount of injustice in a false conviction higher than he does.

[llennhoff.livejournal.com]

And Justice Scalia's original Actual innocence is no defense ruling.

[asakiyume.livejournal.com]

Your subject line was exactly my reaction when I heard the story preview. I thought, "What? What?! You mean there's some way to construe the law so that it's okay to do this? I mean, why is this even a question?"

[stevemb.livejournal.com]

From the New York Times account (http://www.nytimes.com/2009/11/05/us/05scotus.html):

...In the Iowa case, Curtis W. McGhee Jr. and Terry J. Harrington, having spent 25 years in prison, were freed after the Iowa Supreme Court's determination in 2003 that the main witness against them was "a liar and a perjurer."

The two men then sued Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, accusing them of coaching and coercing the witness into providing false testimony. For purposes of their appeal to the Supreme Court from a lower court ruling allowing the suit to go forward, the prosecutors accepted the truth of the accusations against them and argued instead that they were entitled to complete immunity from being sued....

...Neal K. Katyal, a deputy solicitor general, argued for the federal government in support of the state prosecutors. Mr. Katyal said that even in the case of police officers, they could be sued only if they had duped prosecutors into using fake evidence. There is no constitutional violation, he said, if the police and the prosecution are acting in concert, because the prosecutors' absolute immunity would apply to the police as well....

[redrose3125.livejournal.com]

Ya know, maybe if the prosecutors are immune, their employer isn't...