The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct. Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels. For example, early this month, the Northern California Innocence Project at Santa Clara University School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.There's no law granting immunity to prosecutors from lawsuits, it's a doctrine generated via judicial activism without any statutory basis. Indeed, I've never understood why courts give prosecutors "absolute" immunity when police officers only have "qualified" immunity. Many incidents that get police sued stem from split-second decisions - shootings, questionable searches, etc. - while prosecutors have much more time to deliberate over their judgments. Why should a prosecutor who withholds exculpatory evidence for months or years have less liability than a police officer who had to make a decision in the blink of an eye?
Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.
The disturbing result, Chemerinsky argues, is that "the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system." You could say the same thing about Texas courts, and the state bar, and just about everybody else whose job it should be to hold prosecutors accountable for misconduct.
MORE: From Paul Kennedy.
See related Grits posts:
- Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
- A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
- Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
- Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
- Prosecutorial hubris, entitlement, on display in recent cases
- Improving prosecutorial accountability
- What sanctions for prosecutors who cheat to win?
Because when you start imposing civil liability or sanctions on prosecutors, it's not a big stretch to advocate the same liability and sanctions on judges.
ReplyDeleteProsecutors need to be held accountable for misconduct. Period. Judges need to be held accountable for misconduct. Period. If the SCOTUS is not going to do it, no one is and what we have is a system heavily weighted in favor of malicious prosecution and judges who frequently act as a agent of the D.A.'s office (which, by the way, is how we do things in Texas).
ReplyDeleteHow is "prosecutorial misconduct" defined? Intentional acts? Recklessness? Negligence? Vicarious liability for the misconduct of others--e.g., the police? Imputed liability for the acts of subordinates? Just wondering where those advocating more limitations on prosecutorial immunity want to draw the lines.
ReplyDelete12:47, let's start with willful Brady violations and go from there.
ReplyDelete12:47 - That's an easy question with an obvious answer. You draw the line the same way you with poliice officers and other public officials - qualified immunity. With qualified immunity an official is only liable if they violate a clearly established consititutional right and do so with deliberate indifference. If that's good enough for police officers who must make split second life or death decisions it is certainly good enough for prosecutors who have time to deliberate their misconduct, don't ya think?
ReplyDeleteWe've discussed this issue before. There is more than ample evidence that this is a serious and pervasive problem that significantly undermines the integrity of the criminal justice system. Unfortunately, SCOTUS appears to be burying their heads in the sand on this issue.
The doctrine of absolute prosecutorial immunity is built on the false assumption that thats the way it was at common law. The only immunity prosecutors had at common law (I believe prior to 1871) was immunity for things they actually said in court. At common law prosecutors could be sued for malicious prosecution. We need to return to that standard. Qualified immunity is more than adequate to protect prosecutors from harassment by frivolous suits.
Due process is fundamental to our system. Absolute prosecutorial immunity frequently allows prosecutors to deny due process to defendants. They do so with impunity. If we truly believe in ideals like due process we cannot allow this to continue. To do so is an admission that the values our system is supposed to be based on are just meaningless words.
If courts refuse to do something about the problem, legislatures should step up and do it. Unfortunately, few legislators have the fortitude to take on the prosecutor's associations.
Chemerinsky is a preeminent constitutional law scholar. Heck, he taught the constitutional law bar prep class I took. I agree with Chemerinsky almost completely. I dispute one small but significant point in his article - the last sentence. He says that the SCOTUS is sending a message that it doesn't realize there's a serious problem. No, that's not the message. Love 'em or hate 'em, the justices are brilliant legal minds. It's not that they "don't realize." It's that they don't care.
ReplyDeleteMy take on liability for prosecutorial misconduct is this: if the government is going to have the power to prosecute and imprison it's citizens (and non-citizens) for violations of the law, it's a small price to pay to make that same government in some way accountable for egregious violations of constitutional rights. When an entity is accountable for it's actions it is more discriminating and careful in how it acts. It's just that simple.
ReplyDeleteMost of the prosecutors I know - especially the really good ones who take pride in doing their job very well - wouldn't mind accountability because it would cleanse their ranks of the dead weight and those that would abuse their power. No one hates a dirty prosecutor more than a straight one. Same goes for the police and the defense bar.
"While no one hates a dirty prosecutor more than a straight one," I'd still have to question the severity of the problem. How many California cases were looked at to find that 100-something cases? If they looked at 200 random ones, and found misconduct in half of them, then wow, this is a WAY serious issue that deserves knocking the legs out from under the justice system by making prosecutors personally liable for misconduct. ('Cause you don't get it. Want better prosecutors? You'll need to pay for them. Want only the folks truly committed to justice PLUS the folks who can't get any other real-paying law job? Well, that's what you're paying for and that's what you get. Make the truly committed ones personally liable, and they will leave the profession. You don't pay enough for them to defend themselves from lawsuits at every turn.) But if they looked at 10,000 random California cases, and found that 100...well, I went to law school not "math" school, but I'd say, maybe a serious problem to those it directly impacts, sure, but not worth adding the costs to the system of 1) paying prosecutors enough so that they can afford to defend themselves from those lawsuits, frivolous or not, that will be FILED, or 2) losing all your committed prosecutors who aren't stupid enough to subject themselves to constant jail mail lawsuit harassment for what you pay. Like everything else in society, it's a balancing. You want it different? You're gonna pay for it one way or another.
ReplyDeleteWow! Some great thoughts here. I second Grits point, lets start with Brady violations but lets not stop there. Anonymous summed it up along my way of thinking: qualified immunity. With qualified immunity an official is only liable if they violate a clearly established constitutional right and do so with deliberate indifference. If that's good enough for police officers who must make split second life or death decisions it is certainly good enough for prosecutors who have time to deliberate their misconduct. And yes, I do think!
ReplyDeleteDue process is so often lacking in these cases and to the poster who questions how big a problem this is? I wonder if you have been inside a courtroom in Texas. I have and yes, it is a problem.
Anon @ 12:47:00 PM asks, "Just wondering where those advocating more limitations on prosecutorial immunity want to draw the lines."
ReplyDeleteI'll tell you where to draw the line. At the point where a "shady" AUSA (see WSJ post July 20, 2009 "Georgia On LB’s Mind: Lying Prosecutor") can stand up and admit that he lied in order to fabricate evidence and receive not one sanction as in the case against Attorney Mark Shelnutt in Columbus Ga.
He also tried covering up his misdeeds: Shelnutt's team noted that the AUSA filed several ex parte sealed motions with U.S. District Judge Clay D. Land that never appeared on the public docket. Two of the documents filed ex parte sought to hide one drug defendant's cooperation with federal prosecutors and another defendant's change of plea until after Shelnutt's trial. Shady, indeed; and perhaps unethical. On all 36 counts, Shelnutt was found not guilty. The US Attorney's office for the middle district of Ga. had to recuse itself from the case. U.S. District Court Judge Clay Land imposed no other sanctions even though he said very early that he had “concerns” about the government’s case.
How about drawing a line where, in defense of their actions, government attorneys', in the case of "Pottawattamie County v. McGhee" said "there is no freestanding constitutional right not to be framed". Perhaps there is nothing in the constitution that specifically says that you can't be framed but is there not a moral obligation not to do so? In this case Terry Harrington and Curtis McGhee spent 26 years in Iowa prisons for a murder they didn't commit before their convictions were overturned in 2003. The men showed on appeal that prosecutors knowingly presented false evidence to secure their convictions.
ANON @ 03:03:00 PM said, "You don't pay enough for them to defend themselves from lawsuits at every turn." Maybe not but they are paid enough to do their job the right way and that does not include fabricating evidence or other malfeasance to pad their conviction rate. Anon further says "but I'd say, maybe a serious problem to those it directly impacts, sure, but not worth adding the costs to the system". Yeah, right. Not a serious problem if you or a family member does not happen to be one of those directly affected. What a boneheaded statement.
If you think that prosecutorial misconduct is a rare occurrence, let me challenge you to set up a "Google" alert and name it "Prosecutorial Misconduct". Sit back and watch the results for a few months or, as I have, for over two years. Then come back and tell us that there is not a problem.
But if they looked at 10,000 random California cases, and found that 100...
ReplyDeleteIf you are one of those 100 its significant to you. If even one prosecutor deliberately breaks the rules there ought to be consequences.
03:03, I assume you're a prosecutor. Let's apply your logic...I'm sure there are criminal laws on the books that only a small percentage of people actually violate. So, if there aren't just a lot of people breaking a particular law, let's get rid of it. Why are we spending money prosecuting people for crimes that aren't serious problems. I bet that way we could clear a lot of statutes off the books. Of course a prosecutor might say, "what about the victims?" I ask you, when it comse to innocent people spending decades of their lives in prison: "What about the victims?" Its funny how prosecutors are always concerned about victims except for the victims of prosecutorial and police misconduct. "What about the victims?"
ReplyDeleteYou can argue about the numbers but I"ve researched the issue. There have been other studies done and it is a serious and pervasive problem. It's probably impossible to quantify very precisely because unless a case makes it to the appellate level, the misconduct will likely not be documented. The numbers that have been put together indicate it is a widespread problem. You talk about the cost to the system....what about what it costs to incarecerate an innocent person? What about the costs of allowing real criminals to remain free to commit more crimes while prosecutors cheat to put the wrong person in jail? Give the issue some thought.
You know, maybe you're right...its really a shame that none of the police officers, mayors, council members, county commissioners, sheriffs, city managers, state officials, etc. can do their jobs because they are so overwhelmed with frivolous lawsuits. If that is what qualified immunity to prosecutors would do to them, that must be what other officials are experiencing, right? Last time I checked all of those people are still able to do their jobs and are not overwhelmed with frivolous lawsuits. The sky will not fall if prosecutors only have qualified immunity. Furthermore, I don't believe there is a shortage of people wanting to be police officers, mayors, council members, commissioners and state officials due to a fear of frivolous lawsuits. Your arguments are completely without merit.
Again, its about DUE PROCESS.
"Why should a prosecutor who withholds exculpatory evidence for months or years have less liability than a police officer who had to make a decision in the blink of an eye?"
ReplyDeleteWhy are we stopping with prosecutors? Every legal representative to include defense counsel should have the same standard. I'm willing to wager there is more unethical conduct in criminal defense than there is with prosecutors. But that doesn't go with the underdog theme. Crucify the police, shame the victim and blame the prosecutor. Thats the modern day rhetoric. Of course defense council wouldn't do anything unethical. Just look at the sanctions handed out by the state bar. Almost nonexistent. I suppose some would interpret this as vindication. "There's just no data to support the claim."
Ed, it's you exhibiting an "underlying theme" that seems to trump all facts. I don't quite know what you're referencing, or even whether you do, but defense counsel don't have judicial-created immunity. Unlike prosecutors, if they commit torts they can be sued six ways from Sunday. But hey, don't let reality get in the way of a good screed.
ReplyDeleteAnon @ 12:47:00 PM asks, "Just wondering where those advocating more limitations on prosecutorial immunity want to draw the lines."
ReplyDeleteI'll tell you where to draw the line. At the point where a "shady" AUSA (see WSJ post July 20, 2009 "Georgia On LB’s Mind: Lying Prosecutor") can stand up and admit that he lied in order to fabricate evidence and receive not one sanction as in the case against Attorney Mark Shelnutt in Columbus Ga.
He also tried covering up his misdeeds: Shelnutt's team noted that the AUSA filed several ex parte sealed motions with U.S. District Judge Clay D. Land that never appeared on the public docket. Two of the documents filed ex parte sought to hide one drug defendant's cooperation with federal prosecutors and another defendant's change of plea until after Shelnutt's trial. Shady, indeed; and perhaps unethical. On all 36 counts, Shelnutt was found not guilty. The US Attorney's office for the middle district of Ga. had to recuse itself from the case. U.S. District Court Judge Clay Land imposed no other sanctions even though he said very early that he had “concerns” about the government’s case.
How about drawing a line where, in defense of their actions, government attorneys', in the case of "Pottawattamie County v. McGhee" said "there is no freestanding constitutional right not to be framed". Perhaps there is nothing in the constitution that specifically says that you can't be framed but is there not a moral obligation not to do so? In this case Terry Harrington and Curtis McGhee spent 26 years in Iowa prisons for a murder they didn't commit before their convictions were overturned in 2003. The men showed on appeal that prosecutors knowingly presented false evidence to secure their convictions.
ANON @ 03:03:00 PM said, "You don't pay enough for them to defend themselves from lawsuits at every turn." Maybe not but they are paid enough to do their job the right way and that does not include fabricating evidence or other malfeasance to pad their conviction rate. Anon further says "but I'd say, maybe a serious problem to those it directly impacts, sure, but not worth adding the costs to the system". Yeah, right. Not a serious problem if you or a family member does not happen to be one of those directly affected. What a boneheaded statement.
If you think that prosecutorial misconduct is a rare occurrence, let me challenge you to set up a "Google" alert and name it "Prosecutorial Misconduct". Sit back and watch the results for a few months or, as I have, for over two years. Then come back and tell us that there is not a problem.
Prosecutors should be paid more. Of course it stands to reason that we would get better applicants. Same goes for paying appointed counsel. But saying that ending absolute immunity would result in prosecutors having to defend themselves from a deluge of lawsuits is just not right. As county employees, if they were sued the county would be the defendant and would pay the bill. Even if they had to foot the bill, it's called professional liability insurance. A lot of Defense lawyers have it (hell I do). Most civil lawyers do too. And let's be honest, with the nature of qualified immunity and the nature of the CCA, only the most egregious cases would go anywhere.
ReplyDeleteTo those prosecutors out there. I know you believe that when someone breaks the law they should be prosecuted, right? Isn't there a federal law that makes it a crime for a public official to intentionally violate someone's constitutional rights? So, why aren't you hard core, law and order prosecutors screaming for those prosecutors who engage in this "criminal" activity to be prosecuted? Come on guys, be true to your ideology. Prosecutors that cheat are criminals and that makes them no better than the actual criminals they prosecute.
ReplyDeleteIf you prosecutors want to keep your absolute immunity I have a suggestion. Demand the state bar start aggressively disciplining those prosecutors who engage in this "criminal" behavior. If you aren't willing to police your own, then it should be done through civil lawsuits.
Ed - that's the point, the rest of us do. Police have qualified immunity. I as a defense lawyer have no immunity. That's the way it should be. Prosecutors just shouldn't be untouchable. Not dinged everytime someone disagrees with them - but open to liability for serious violations of people's rights.
ReplyDeletefirst i think any immunity is a criminal fraud played on the citizens of this country. Since it's all derived from Soverign Immunity.
ReplyDeleteSorry we dont' have one!
We have employees again i'm sorry NO EMPLOYEE is going to get immunity FROM ME!
2nd as for what is considered a crime. That's easy!
If it's illegal for you and me to do. Guess what the cops and judges and DA's CANT' DO IT EITHER!
real simple!
Kudos to Grits, Horns and Mr, Howard, But Sorry guys Im chiming in with Rodsmith on this one!
ReplyDeleteProsecutorial misconduct has reached epidemic proportions and, like a disease, cuts across geographic and socio-economic boundaries to infect the criminal justice system.JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT 1–3 (Matthew Bender & Co. eds., 4th ed. 2008).
ReplyDeleteIn a study of the first seventy-four DNA exonerations, prosecutorial misconduct was identified as a significant factor in thirty-three of those cases. In those 33 cases the following categories of misconduct were identified as factors: Suppression of Exculpatory Evidence-37%; Knowing Use of False Testimony-25%; Coerced Witness-11%; Improper Closing Arguments-9%; False Statement to Jury-9%; Evidence Fabrication-5%; Other Misconduct-4%.In more than 15% of cases of wrongful conviction overturned by DNA testing an informant or jailhouse snitch testified against the defendant.” Understand the Causes: The Causes of Wrongful Convictions, THE INNOCENCE PROJECT, http://www.innocenceproject.org/understand/# (click on the link for an examination of cases based on other criteria).
ReplyDeleteA recent USA Today article examined the problem at the federal level. The authors documented 201 criminal cases in which judges determined that Justice Department prosecutors had violated laws or ethics rules. In each of these 201 cases, federal “judges threw out charges, overturned convictions, or rebuked prosecutors for misconduct.” In 2009, the Justice Department internally investigated sixty-one complaints made by judges about misconduct on the part of federal prosecutors. Despite all of these complaints, state bar records reveal that, in the past twelve years, only one federal prosecutor has been barred from practicing law. In its investigation, “USA Today found a pattern of ‘serious, glaring misconduct.’” The article quotes an expert on the issue who said, “It’s systemic now, and . . . the system is not able to control this type of behavior. There is no accountability.”
ReplyDeleteThe Center for Public Integrity found 2012 cases in which “individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences . . . .” “In 513 additional cases, appellate judges offered opinions—either dissents or concurrences—in which they found the prosecutorial misconduct serious enough to merit additional discussion . . . .” “In thousands more cases, judges labeled prosecutorial behavior inappropriate, but allowed the trial to continue or upheld convictions using the doctrine of ‘harmless error.’”
In 1999, the Chicago Tribune found 381 cases, going back to 1963, where prosecutors obtained homicide convictions by hiding exculpatory evidence, presenting evidence they knew to be false, and allowing witnesses to lie. Later in 1999, the Tribune identified 326 reversals in death penalty cases that were attributed in whole or part to prosecutorial misconduct.
Even when misconduct is revealed, convictions are rarely reversed. In an analysis of 11,452 cases in which appellate court judges reviewed charges of prosecutorial misconduct, the Center for Public Integrity found that the appellate judges typically ruled the misconduct was routinely ruled to be harmless error or they did not address it. “The relative rarity of reversals makes these opinions useful from an empirical standpoint: Any prosecutor who has more than one reversal to her credit belongs to a select club.”
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 take and only two disbarments. Another study apparently found that from 1886 to 2000 there were only 100 cases of disciplinary proceeding 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 receive a public sanction.
ReplyDeleteWhile federal law does provide criminal liability for government officials who violate the constitutional rights of citizens, since 1886 there has only been one conviction of a prosecutor under this statute.
ReplyDeleteIn Burns v. Reed, the court made a compelling argument that qualified immunity is sufficient to protect prosecutors when giving advice to the police:
ReplyDelete"The Court of Appeals speculated that anything short of absolute immunity would discourage prosecutors from performing their “vital obligation” of giving legal advice to the police. 894 F.2d, at 956. But the qualified immunity standard is today more protective of officials than it was at the time that Imbler was decided. “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley, supra, 475 U.S., at 341, 106 S.Ct., at 1096; see also Mitchell, 472 U.S., at 524, 105 S.Ct., at 2814. Although the absence of absolute immunity for the act of giving legal advice may cause prosecutors to consider their advice more carefully, “ ‘[w]here an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate.’ ” Ibid. (quoting Harlow, 457 U.S., at 819, 102 S.Ct., at 2738). Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice. Cf. Butz, 438 U.S., at 505-506, 98 S.Ct., at 2910. Ironically, it would mean that the police, who do not ordinarily hold law degrees, would be required to know the clearly established law, but prosecutors would not." 500 U.S. 478 (1991)
“[O]f the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor.” The Veritas Initiative.
ReplyDeleteHey Grits.
ReplyDeleteThe top dogs have been shown to be "oblivious" and blatantly covering up for the rougest of the pack. The State Bar & CCA does the same for the baddest of their pack as well. The TBP&P does the same in the form of systematic denials of Full Pardons - for innocence applicants. Then there is the IAs Division covering for criminals in uniform and the WTF? forced rehiring if and when fired. We can and must continue to Blogaboutit when the topic arises or we can implement doing somethingaboutit. To hell with any more studies, I've had it.
As of today, let’s all agree to agree and make a stand. I aint afraid of no darn ghost, but one person physically standing up for an entire state or nation simply looks weak at best; it’ll take a group effort to confront and combat organized crime. Which is exactly what the public at large is paying for and getting in return when it allows; false arrests to result in wrongful convictions. Adding insult to injury, is when we the people allow those in the checks and balances positions to cover up wrongs by acting like it never happened or happened but for the good of mankind fearing the system would otherwise collapse.
Before it gets too darn hot, let’s consider a date to put aside for the public at large (including those former & currently charged with protecting and serving the public) to obtain a permit to assemble in mass in several locations.
Humans of walks of life with blank posters and taped mouths or yelling from the rooftops, it’s all the same just as long as we the people stop studying/talking it to death. Prosecutorial Misconduct is a curable disease if caught at an early stage (as it is happening). Any ideas people? Thanks.
Dear Law school not math school,
ReplyDeleteSo you figure a 1% failure rate is not worthy of corrective action. Obviously Criminal law and not product liability must be your forte.
What happens in the real world when say a manufacturer of gas water heaters were to put a product into the market in which a substandard heat exchanger leaked Carbon monoxide at a rate that caused injury or death in 1 out of 100 units sold?
Could you imagine driving on the highway if 1% of steel belted radials failed catastrophically at speeds above 50 MPH?
What ever happened to "Better 10 guilty go free, than 1 innocent imprisoned"? Am I too old fashioned? it seems like the entire Judicial process has become a sick game where the state knows the outcome before the crime gets committed (or allegation of said crime).
ReplyDeleteWhen we allow those that are supposed to protect libery piss all over it, that is a certain sign that we as a nation have forgotten the core values of our Republic and deserve whatever it is that we are not willing to stand up for. This can be applied to whatever action is necessary.