A "perverse" position on prosecutors fabricating evidence ... by the Obama Administration

Wednesday the US Supreme Court held oral arguments on an important case regarding prosecutorial misconduct, where prosecutors sought absolute immunity when they fabricate evidence to frame a defendant if the information is used at trial.

In looking at the transcript (pdf) from Pottawatamie County v. McGhee, it was a bit of a shock to read Neal Katyal, the attorney representing the Obama Administration, tell the court that if a prosecutor knows a police officer fabricated evidence and puts it on at trial, there is not a Fifth Amendment due process violation (p. 20) !! That's change we can believe in, baby! Yikes!!

Having earlier previewed the case on Grits, I wanted to point readers to some of the initial coverage in its aftermath and offer some initial thoughts:

• NY Times: Justices, in aftermath of two murder cases, hear claims of a process gone wrong
• Christian Science Monitor: Supreme Court appears split on tackling rogue prosecutors
• SCOTUSBlog: Rethinking prosecutorial immunity?
• Time magazine: When is it legal to frame a man for murder?
• NPR: High court ways prosecutors' immunity
• Dahlia Lithwick, Slate: The Framers on the framers
• Durham in Wonderland: Pottawatamie County and Nifong
  
• Section 1983 Blog: Pottawattamie County v. McGhee Oral Argument Transcript
  
• Preaching to the Choir: Supreme Court Bizarro World
  
• John Terzano, Huffington Post: Prosecutors must be held accountable for misconduct
• AP: Court worried about stifling prosecutors

Here's a link to the transcript (pdf) from Wednesday's oral arguments and a link to the SCOTUSWiki page.

The Obama Administration's postion before the court was to reject the idea that US citizens have "a free-standing due process right not to be framed," according to Katyal. Justice Stevens dismissed that declaring, "There is no free-standing right. There is just a right not to convict a person with made-up evidence," adding:

of course a prosecutor insofar as he's involved in the prosecutorial stage is absolutely immune. But if he's involved in the investigatorial stage of that event, well, then he's not immune absolutely. That's a policy decision. That has nothing to do with free-standing rights.

Katyal insisted to the court that while a policeman or even a prosecutor who fabricated evidence in the investigative stage of a case only had qualified immunity, if the same prosecutor put the fabricated evidence on at trial, they would confer upon themselves absolute immunity for the act - an outcome Stevens referred to as "perverse." Yes, that's right, one of the liberals on the US Supreme Court - the Justice President Obama is most likely to replace next, in fact - called the Obama Administration's doctrine of prosecutorial exceptionalism "perverse." Chew on that for a moment, Democrats.

I also thought it was interesting that Justices seemed fairly dismissive of the effectiveness of other sanctions against prosecutors. Sotomayor referenced "numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage."

Finally, to the handicapping. From the Christian Science Monitor to the Section 1983 Blog, most folks predict the vote will be close. Just from reading the transcript, I'm not sure I agree. I'd predict near-certain defeat for the prosecutors and the Obama Administration - the question is, what will defeat look like? Several comments from key justices left me with that impression.

Notably, at one point Justice Breyer asked McGhee's attorney, "what is the most safe rule that will allow you to win your case?" The answer to that question IMO will probably end up being the court's decision. Breyer also seemed to reject the prosecutors' cagey technical arguments why they couldn't be liable for pretrial behavior: "I don't see a conceptual problem," he said, "Maybe there are practical problems, but I don't see a conceptual one."

Justice Kennedy is usually the swing vote on the court and oft-considered the body's bellwether. He was the first justice to ask a question of Pottawatamie County's attorney. In its entirety, his question was, "Your -- your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons. ... I mean, we were just spinning our wheels in that case?" He later summarized the prosecutors position as "the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition." That doesn't sound to me like a man who is inclined to side with the target of such jabs (though of course all such prognostications at this point are mere speculative tea-leaf reading - hey, this is a blog).

Based on what was said at oral argument, I think they could and likely will easily find a (probably narrow, incrementalist) answer to Breyer's question that sides with McGhee and pulls in Breyer, Ginsburg, Stevens, Sotomayor and Kennedy, at which point I wouldn't be surprised to see Scalia and perhaps even Chief Justice Roberts hop on board, just so they'll have some influence over the opinion and avoid a bad vote. Even though justices seemed sympathetic to the practical concerns raised by prosecutors, they all seemed reluctant to grant an official green-light for prosecutors to frame innocent people. If I were a betting man, I'd wager they don't want to put their official imprimatur on such a "perverse" position, even if inexplicably the Obama Administration is willing to do so.