Thursday, May 05, 2011

Eliminate 'judge-made' immunity for prosecutor misconduct

On Monday, the Texas House Judiciary and Civil Jurisprudence Committee heard CSHB 2641 by Rep. Lon Burnam which would establish liability for prosecutors in cases involving extreme misconduct, giving them "qualified immunity" (the same as police officers) instead of the "absolute immunity" they enjoy now in performance of their prosecutorial functions.

Though late in the session, the hearing was well-timed since retired Supreme Court Justice John Paul Stevens that very evening gave a speech (pdf) on the same topic, according to the Wall Street Journal Law Blog, arguing for elimination of the "federal judge-made rule" granting prosecutors "absolute immunity." Stevens declared that "this judge-made rule misconstrued the intent of the Congress that enacted section 1983 and is based on a misunderstanding of relevant history." He even quoted an opinion from Judge Richard Posner who concluded that the rule is "based on what scholars agree are historical misunderstandings (which are not uncommon when judges play historian)." Notably, though he was actually a Republican appointee, Stevens was widely considered a "liberal" jurist on the Supreme Court, while Posner enjoys the reputation of an arch-conservative. Both, though, agree this "judge-made rule" has no basis in either history or statute.

Stevens also cited an upcoming paper in the Texas Journal on Civil Liberties and Civil Rights, "Congress Needs to Repair the Court’s Damage to § 1983," by Ivan Bodensteiner, who identified "seven major areas—individual immunity, governmental entity immunity, supervisory liability, color of law, limitations on punitive damages, enforcement of statutory rights, and preclusion—in which the Court‘s interpretation of §1983 has narrowed ... [in ways that] are not supported by either the language of §1983 or public policy considerations." Bodensteiner argues for Congress to amend Section 1983 to eliminate both absolute and qualified immunity in most instances, suggesting specific statutory revisions to that effect.

Which is where Rep. Burnam's bill comes in, providing a state-level remedy to federal judicial activism. Since it's unlikely Congress will anytime soon take up this cause, CSHB 2641 creates a new Sec. 1983-style civil rights statute for Texas that limits immunity for prosecutors. His legislation wouldn't go so far as to abolish all immunity, making his proposal seem moderate by Stevens and Bodensteiner's standards, but would limit prosecutors to "qualified immunity," which is the same as that presently enjoyed by police officers.

At the hearing Monday, a bevy of prosecutors put in cards to indicate opposition, though none of them wanted to stand up and tell the committee in oral testimony why they deserve more protection than cops when doing their jobs. (See the video of the hearing here, beginning at the 25:00 mark.) I testified on behalf of the Innocence Project of Texas and a rep from the Texas Defender Service discussed the need for the change in the context of the Anthony Graves case, where extreme prosecutorial misconduct caused the federal 5th Circuit to overturn Graves' death sentence. Though it's late for the bill to make it through regular channels, it's still possible it could be tacked onto other legislation as an amendment.

Whether or not the Texas Lege addresses the subject in the 82nd session, it's clear the issue isn't going away as long as some prosecutors cheat to win. And between Rep. Burnam's legislation and Justice Stevens' speech on Monday, it seems like a lot more folks are considering legislative solutions to this judge-created problem than at any time in recent memory.

See related Grits posts:


Anonymous said...

Woo Hoo! More money for plaintiffs lawyers!

quash said...

Can't happen soon enough.
@8:47: What do you propose as an alternative way to prevent intentional fraud on the courts for which there is currently no remedy?

Anonymous said...

Woo Hoo? Wrongful convictions rob innocent people of their lives.

There are prosecutors who don't give a rip about real justice and have no problem lying in court or in court documents to get a conviction or extract a plea. I bet Williamson County let their opposition to this bill be known.

Mary said...

I sat in court while a relative was sentenced by a judge that the prosecutor thought was too lenient. I could not believe the absolute lies that the prosecutor told. I was shocked as this was my first experience with the court system and had no idea these things really went on. I had heard about it before, but thought maybe it was "sour grapes" until I saw it for myself. There is no justice as long as this is allowed.

Thomas R. Griffith said...

Hey Grits, as a follow up or add on to this Post regarding an historic event, would you consider including a link to State Rep. Contact Info. so readers may voice their support directly to the State Reps.?

Maybe you could forward to them the results of the GFB 'Poll Question of the Day" along with a list of Comments *in favor of CSHB 2641 or *against CSHB 2641? Regardless of if you find time or not, please keep us updated on this. Thanks.

Anonymous said...

"There are prosecutors who don't give a rip about real justice and have no problem lying in court or in court documents to get a conviction or extract a plea. I bet Williamson County let their opposition to this bill be known."

I bet Smith County did too. If they can't cheat they won't know what to do.

Thomas R. Griffith said...

As a member of the public at large, a taxpaying citizen of voting age, I fully support CSHB 2641 in its current state. Any attempt to water it down any further would be an insult and recorded in history as such. Thank you for standing up for Texas and Texans as a whole, we will remember the names of those that don't at the polls. Thanks.

Gritsforbreakfast said...

TRG et. al., you can find out who represents you and get their contact information here.

Anonymous said...

I bet Gregg County put up a fight also but if the DA'S office does not get you then you are sure to die in the county jail for reasons unknown.

Anonymous said...

Who do you suppose will ultimately pay for the insurance coverage sold to counties and prosecutors to defend and indemnify against such claims? Surely no inmate would ever file a frivolous suit claiming he was wrongfully convicted? Ahh, what the hell, the government budgets are fat and happy; and we have ample tax dollars to spend! Let the litigation commence!

Anonymous said...

Okay 7:14, let me ask you....if you become one of those wrongly convicted as a result of prosecutorial misconduct and spend decades in prison, as many have, how much would it be worth to you to do something about the problem?

This sky is going to fall because of frivolous lawsuits is nothing but a bunch of circle the wagons bullshit being put forth by sleazy, dishonest, power hungry, little tyrants. Police, state officials, mayors, city managers, etc. are covered by qualified immunity but somehow still manage to do their jobs and the taxpayers aren't bankrupted as a result.

7:14, if you have a reasonable, logical objection to make to this legislation, make it. If all you have is this sky is going to fall bullshit, quit wasting out time.

Anonymous said...

Furthermore, 7:14 - I assume you are either an honest or dishonest prosecutor. Let's assume your honest. It's because you and your colleauges have failed to do anything about the beahavior of your sleazier colleagues that makes this type of legislation necessary. It is beyond question that this is a serious and pervasive problem that undermines the credibility of the criminal justice system. So. tell me, why haven't you and other honest prosecutors done something about it. Apparently, you feel that proseuctors should be above the law.

If you think this legislation is a bad idea, lets hear you propose another solution to the problem. Or, maybe my assumption is wrong and you oppose this legislation because you are one of the ones engating in this despicable behavior.

Anonymous said...

5/06/2011 07:14:00 PM Sounds like the WAA WAA WAA of an unhappy district attorney; worrying about the cost of malpractice insurance rather than serving the public and defending truth and justice.

Who do you think is paying for prosecuting innocent people and for their incarceration and/or executions?

I remember a time when I believed that judges, district attorneys, prosecutors, police officers were honest and out to protect and serve the citizens. I was so very naive. Now, I don't believe a damned thing any of them say.

Anonymous said...


You have correctly identified the problem:
district attorneys
and, police officers

None of these deserve our respect.

PAPA said...

"THEY" take an "oath" to become an officer of the court!(What does this say, they are NOT for you, they are for the COURT) The Judge takes an "oath" to uphold The Constitution! Lieing, hiding evidence, producing false witnesses, bribery, filing falsified documentation is not of the CONSTITUTION and any such officer of the Court including the JUDGE, JURORS, WITNESSES, etc. that tolerate this prosecutorial misconduct must go to prison for prejury with fines of excessive amounts will stop a bunch of this corruption when the fines bankrupt those being paid from the Tax Payers Tax Dollars...shut them down, disbar the prosecutors, impeach the Judges that allow this. No Judge has a lifetime appointment if "WE THE PEOPLE" stand up and say "NO MORE", we are not taking this anymore. Calling "WE THE PEOPLE" to let your voices, shouts, outcries be heard loud and clear, write your Legislators, Congress, STOP the is easy with the internet, Texas online gets you to the members of Texas Legislators who are in charge, if they will not hear you, then VOTE them out, you are their BOSS, FIRE Them, send them home to remember the day they did not hear and uphold the wishes of "WE THE PEOPLE"

Gritsforbreakfast said...

1:07/6:45, narrow your aim! I'd argue most of those in each of those professions deserve respect. In practice, when you get into the weeds on these topics, a small number of repeat offenders account for most misconduct just as repeaters account for most burglaries. In the recent California study identifying 700 cases of court-overturned prosecutor misconduct, two prosecutors had five each and others had multiple instances. Especially for police, where I've examined misconduct cases in more depth, usually 10% or so of the department causes 70-80% of the problems. I think that's true for all these professions, which doesn't make it any less important to rein in that 10%.

Audrey said...

I agree with you is a group of repeat offenders(by offenders I mean police, detectives, defense attorneys, prosecutors and judges) that continue to go unchecked. I believe most get into the business with the best of intent and somewhere become hardened or even criminal themselves. In my own case I had one defense attorney along the way, Mark Perez, actually apologize for how his colleagues had treated me and said they build up an attitude over the years and miss it when someone comes along who is truly innocent.

Nevertheless, these people have to be held accountable. Fraud on the courts cannot be acceptable. Innocent peoples lives cannot continue to be destroyed. To allow this is to say those people's lives have no value, which couldn't be further from the truth. These people who are falsely accused and wrongfully convicted are mothers, fathers, daughters, sons....they are tax-payers, volunteers of the community, voters, students, workers. All of this is stolen from them because some greedy ADA wants another chip on his or her belt or the DA wants re-elected. Or a detective or police officer is bucking for a promotion and a 5%raise. Or a defense attorney is behind in his or her mortgage or just too lazy or cynical to do the job. Or a judge wants to look tough on crime and get reelected.....or any combination thereof. How is that not a crime? Assassinating characters and destroying peoples lives, stealing innocent peoples' very existence in society? Yet these "professionals" are allowed to hold peoples' lives in their hands day-in day-out and never be accountable. What's with the double standard? Their behavior is criminal and must be stopped if the justice system is to ever regain its credibility. Remember the safeguards our founding fathers set out, such as the Constitution. Corruption must be confronted and there must be consequences in order for us to be safe as individuals and as an on-going nation.

Audrey said...

My own experience in being falsely accused and wrongly convicted includes: a contrived confession (the prosecutors said was not forensic testable, even though I begged the FBI get involved); withheld exculpatory evidence related to computer (also begging for FBI involvement on forensics); false testimonies of state witnesses (didn't match depositions of civil suit made two yrs earlier); verifiable lies of DPD detective in his testimony; Motion in Limine, filed 10 days before the trial, not allowing me to bring up prior bad acts of my false accusers, including the motives for the false accusations or the fact they committed insurance fraud. Those are just some of the list is long. My case is currently in the habeas process. Even if I get cleared or even better, exonerated, those involved in the malicious prosecution are protected under immunity and are allowed to continue to practice such deceptive measures....anything for a conviction. Any other job in the world - you'd be fired for lieing, misleading, violating ethical standards....why not here?

Thomas R. Griffith said...

Hey Grits, appreciate the link consideration.

Folks, if you want to see how some of your tax dollars were wasted 'all in the name of absolute immunity' slip on over to Audrey's blog 'With Unveiled Face". Her case is a perfect example of a Texas Railroad gone wild. There is no way that an entire group would venture into such an obvious endeavor without knowing they are 'all' immune. They did everything but sleep in court.

Audrey's claim of actual innocence is non-(Human)DNA related but very related to her computer's motherboard's DNA. It was the DA's INTAKE that brought charges without any incriminating evidence what-so-ever. It was the court (Judge) that allowed the ADA to destroy her computer, which contained proof of her innocence. It was her attorney/lawyer that bumbled from the beginning. What was left resulted in being gobbled up by 12 of the dumbest people they could find. When she went over there heads to: the Media, FBI, Governor, etc..., she was flat out ignored.

As of now, they think they've 'all' escaped any retribution for blatantly participating in the framing of Audrey but there names and actions will out live each and everyone of them. WUF & PNG are only a couple of places to find there names engraved. Let's see them apply absolute immunity at the dinner table when lil johnny says, "Dad, I Googled your name for Show-n-Tell and you've got some splaining to do..."

*So, please take time to be bold enough to locate your State Rep. and tell him/her it's time to derail the Texas Railroad. Thanks.

J.B. Simms said...

There has been much written about the misinterpretation of Section 1983 cases, but nothing seems to get done. Ret. Justice Stevens stated there is legislative history of Congress' rejection of a proposed amendment to the Section 1983 statute (Title 42).
I pointed out in my book that this activity is not misconduct; it is criminal.