Friday, November 06, 2009

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:
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.


Anonymous said...

Excellent summary. And probably an accurate WAG.

I wish prosecutors were half as good at interpreting the law and court opinions as you are. We'd have fewer DAs arguing these ridiculous positions, including that it's OK to convict a man who is actually innocent because he's had his day in court.


Anonymous said...

So in effect, based on this possible Supreme Court ruling; a police officer and a prosecutor could work in harmony to prosecute someone for no other reason than; in their opinion the person is guilty and so in order to get the jury to side with their position; fabricate away, with immunity.

Big government is scary, and the Obama way is becoming so incredibly scary so quickly that if this is ruled upon in favor of the crooked cops and prosecutors a whole new can of worms exists for anyone with opposing view points of his Presidency for any reason.

Welcome to Chicago Politics.

David C said...

The Obama's administration involvement really surprised me when I first read about it. But then I think back to Guatanamo Bay, and the administration couldn't even get Congress to allow them to close it. Or his remarks about indefinite confinement without trial for some detainees that raised barely an eyebrow because conservatives were getting so worked up over the possibility of Obama conferring any rights to enemy combatants. When I really think about it, this isn't all that surprising.

Anonymous said...

"So in effect, based on this possible Supreme Court ruling; a police officer and a prosecutor could work in harmony to prosecute someone for no other reason than; in their opinion the person is guilty and so in order to get the jury to side with their position; fabricate away, with immunity."

This has been standard procedure in Smith County for years.

Anonymous said...

Welcome back to Crawford Politics.

Fixed that for you.


Anonymous said...

Off topic but as usual I don't know where else to bring it up. Have you seen the CNN article (I first heard about it on NPR about 2 weeks ago) about Chicago prosecutors wanting to subpoena the records of journalism students at Northwestern who have worked on the Medill Innocence project? Apparently, they don't like the prosecutors office being shown up for false convictions.

Hook Em Horns said...

Really starting to question OBama.

Kelley Ryberg said...

I'm sure no one is surprised by this, we've seen the Obama Solicitor General take quite a few policy positions identical to the Bush Administration's.

It's funny the teabaggers call Obama ultra liberal and socialist while ignoring things like this. There's more moderate in Obama than most people want to admit.

Anonymous said...

Judging by his appointments; his desire to undermine nearly everything we know as a free society; his government take over of practically anything and everything he chooses; his willingness to print trillions of worthless dollars (backed by nothing) so that our economy can sink even deeper; his flamboyant behavior of campaigning the entire first year in office while doing little of anything else except providing lip service and playing golf. This is no surprise whatsoever, what’s surprising is that the members of his own party are just now starting to ask what the hell is going on?

I had faith in him; I now only have disgust, and have to wonder myself what the hell was I thinking. The only positive thing he has accomplished is ordering the Fed’s to lay off the Marijuana.

I’m sick to death of receiving automated phone calls three times a week telling me how my President is changing America, and what I can do to help, what the hell is that all about? I don’t ever remember getting a solicitation, not one, [ever], trying to support a President’s agenda; is his plan so weak in conception that he has to spend millions of dollars to try and build support for it?

What a sad joke this has become, and now we have to wonder if they are going to pass laws making it legal for cops and prosecutors to fabricate evidence, what next?

His actions are shameful and if he doesn’t snap out of his “wow I’m the President crap,” and start acting Presidential instead of just acting, then he should quit and see if anyone is interested in bringing some old Reagan movies back, maybe he could get the leading part.

Anonymous said...

This is not a Democrat or Republican issue, so get off your high horses!

This is an issue of someone being convicted on the words of a DA who only wants to win a case and not the facts. This issue should be approved, some DAs only want to win and do not consider the consequences of what their selfish winning attitudes take on a person's life, if truly innocent, and the lives of children, parents and siblings. Therefore, they should be santioned or whatever if they willingly use unproven information.

So get off the polictical shout box and just go with the facts, prosecutors should be held to the truth and not to the won another case.

Cassandra said...

Well, actually, the prosecutor was technically correct - there was no Fifth Amendment due process violation - just an humongous Fourteenth Amendment due process violation (the difference being, the 5th applies to the Federal Government and the Fourteenth to the States). I guess these prosecutors really are unfamiliar with the constitution ... a first year law student should know better than this.

Anonymous said...

What the prosecutors seem to be missing in this is they can stay out of trouble and fulfill their oaths by simply disclosing everything to the defense, telling the truth, and let the jury sort it out. Its really that simple.

Hook Em Horns said...

No, its not a political issue anymore than Governor Perry shutting down the Willingham commission is. Excuse me while I go spank myself!

Anonymous said...

Obama just being clever. Just read his operating text, Rules for Radicals.

NoMoreNoloContendere said...

Hey everybody,
I'm surprised to see that this Post has only 14 comments so far. The following is wordy but it goes to show you that this topic goes back decades and still no remedy for professional corruption. This topic should have pulled in some "former and or career" prosecutors by now. I would love to hear: what the "King of Nolo Contendere” has to say.

The book, "The Griffith Files - 1984 & Beyond) depicts how the "King" got away with indicting people that didn't represent the original eyewitness description. To the readers dismay you'll see that after the victim viewed a Show-Up, HPD allowed him to change his descriptions but still not of those he just observed that supposedly used a .22 or .25 black revolver w/ two inch barrel. "Incident Report" shows HPD called "Intake" & charges were filed anyway.

Now enter the "King", on trial day he displayed a big black revolver w/ six-inch barrel in front of the jury. My paid attorney said it must be there to show what kind of gun was used right before he "tapped out" & plea bargained me away, due to being on probation.

The book points out that FOI acts allowed for the purchase of case files showing the "King" created "two" State's Exhibits docs. dated seven yrs. apart. The 1984 one lists a .38 cal. Rohm as # 2. The 1991 doc. list a "Judgment" as # 2 with # 2A being Photo of Gun. I know, a crap load of #2's. Would it be safe to say that since there are no other records of the firearm (chain of custody-where it came from & where it went to) & that no charges and or sentence was given for being in possession of a firearm while on probation, that he "himself" fabricated evidence?

Combine this with the list of names that knew it didn't belong but looked away and one asks does this make them "in on it"? Certified doc. on Harris County letterhead shows his pal the exhibit clerk saying she "personally" destroyed it in 95 & didn't need any stinkin documents to show how and where it was destroyed. I consider these people has the "263rd Gang from Hell” due to their obvious knowingly & willingly contribution.

The FBI, ATF, HC Sheriff, HPD and State Archives have replied they have no records and or clues. The "King was first asked about it in 1998 and again this year, responding with I don't remember. Well, that's not good enough. Names, dates and events are laid out in the book, so they'll have no opportunity to forget.

"PROJECT: Not Guilty" was created to allow the public at large to name names backed up with reports, mug-shots, case files, etc. The "King" and those that enjoy immunity today will hopefully have to explain to their families & friends why it was so important to fabricate. It's hoped that they never get a good nights sleep after they fabricate their answers.

Read the book, get in on the "project" or just (blogaboutit-overhe). Better off, let's all fire off some letters and make some calls to voice disgust in this matter. Thanks to Grits for getting the ball rolling.

Writer said...

I would suggest that prosecutors should be responsible for verifying information gathered during an investigation. This would be similar to company CEOs making sure that financial statements are true regardless whether they are directly responsible for "cooking the books" or if it is done by his underlings.

Somebody has to be responsible for verifying that information is true.

wenders said...

Its a friggen witch hunt just like with Clinton. What I can't believe is that people are falling for the unethical foolishness by the GOP.

Just think of the things they could be spending time on and implementing some real positive things with the economy. (not saying they would just maybe could) But nooooooooooooo, they focus on winning winning winning election. Truth be told, they just can't handle losinhg. Its like wer are dealingt wiith teenagers. GROW UP GOP. The whole ting sickens me. The old white manys\ club will become obsolute because it's us mutts that are the majority to the tode is shifting. cant take losing and that is so childess is almost loaughble but it most definatly no a joke, come on GOP pull it togeter stop acting to kids and get to work. Work o the ecomomy, Its like a long draging sop opera.