Will Prosecutors Soon Have to Answer for Their Misdeeds?

The most important story of 2010, so far, was reported yesterday, noting the weakening of a legal doctrine that has contributed to significant injustice in the United States.

Now we are left with these big questions: Will that legal notion, the doctrine of prosecutorial immunity, be overturned completely? And will it be joined by its ugly cousin, the doctrine of judicial immunity?

Our hope is that the answer to both of these questions proves to be a resounding yes. We personally have suffered from the evils created by judicial immunity. And our guess is that the Don Siegelman case and other Bush-era abuses never would have happened without the protections offered by prosecutorial immunity.

The U.S. Supreme Court dismissed an Iowa-based case, Pottawattamie County v. McGhee and Harrington, after the parties announced they had reached a settlement. The ABA Journal reports that the county agreed to pay $12 million to settle the case.

Here's how The Law Blog describes the issues in Pottawattamie County:

The case, Pottawattamie County v. McGhee and Harrington, was brought by Curtis McGhee Jr. and Terry Harrington, who had been found guilty in the 1977 murder of John Schweer, a retired police officer in Council Bluffs, Iowa. The two, who spent 25 years in prison before being freed in 2003, sued Iowa prosecutors for violating their civil rights by falsifying evidence used against them before arrest and at trial. They were released after being able to document the actions taken by prosecutors to doctor evidence and influence testimony to point the finger at them, even though there was another suspect.

The settlement means the U.S. Supreme Court will not take up the issue for now, and prosecutorial immunity remains in place. But The Los Angeles Times reports that the Iowa county probably was moved to settle because several justices seemed inclined to weaken the absolute immunity that prosecutors currently enjoy for their official actions. Reports the Times' David G. Savage:

In the past, the high court had said prosecutors could not be sued for doing their jobs, even if they sometimes convicted the wrong defendant. And in November, an Obama administration lawyer argued on behalf of Pottawattamie County, asserting that there is no constitutional "right not to be framed."

But several justices said they found that argument appalling. They signaled they were not prepared to shield prosecutors who knowingly fabricated a case against a suspect.

How did specific justices react during oral arguments? Reports Savage:

In the Supreme Court, a lawyer for the prosecutors agreed that police could be sued for fabricating evidence, but not prosecutors, even if they worked together.

Justice Anthony M. Kennedy said that was "a strange proposition."

Justice John Paul Stevens called it "perverse."

Facing a likely loss in the high court, the county moved to settle the case.

Will the U.S. Supreme Court soon hear another prosecutorial-immunity case, providing a new opportunity to remove the protection that wayward prosecutors currently enjoy? It seems likely that another case will step into the breach.

Here's a thought: If the convictions in the cases of Don Siegelman (Alabama) and Paul Minor (Mississippi) ever are fully overturned, as they should be under the law, the defendants probably would have ample grounds for lawsuits against prosecutors. Wouldn't that be interesting? (For an excellent update on the Minor case, see here.)

As for judicial immunity, that isn't on the table for now. If it ever is, the powerful judicial lobby surely will howl and scream at the thought of being held accountable for intentional violations of parties' civil rights.

And that's what this argument boils down to. As it stands now, prosecutors and judges can willingly and knowingly violate your due process rights and get away with it. Essentially, the 14th Amendment to the U.S. Constitution means nothing when it comes to judges and prosecutors.

How did we get to this point? Here is some background on judicial immunity from an earlier post at Legal Schnauzer:

Most Americans have no idea that a noxious concept such as judicial immunity even exists. And they know even less about the monumental effort judicial groups put up to make sure that state judges could cheat parties with impunity.

A 1984 U.S. Supreme Court case called Pulliam v. Allen put a major gash in the armor of judicial immunity. It allowed for prospective injunctive relief against state judges who clearly were ruling outside the law and violating rights to due process and equal protection. It even said that wayward judges could wind up paying the winning parties' attorney fees and costs. The late Harry Blackmun probably was best known as the author of Roe v. Wade, but he also was the author of Pulliam.

How much did Blackmun's fellow "jurists" hate Pulliam? You can get an idea by clicking here. The Federal Courts Improvement Act of 1996(FCIA) essentially overruled Pulliam and gave state judges a virtual license to cheat.

Most Americans have no idea what they lost with passage of the FCIA. It means that a corrupt state judge can violate your constitutional rights--and if your state appellate courts are corrupt (as they are in Alabama) and let him get away with it--you probably have no recourse. FCIA is almost certainly the single biggest reason so many state courts are riddled with corruption.

How did we ever provide a free pass for judges and prosecutors to intentionally act unlawfully? We didn't. The idea came from lawyers, in order to protect other lawyers.

Why did this happen? The fear, of course, is that the courts will be flooded with lawsuits from parties claiming that judges and prosecutors violated their civil rights. But there seems to be a growing sense that, at least in the case of prosecutors, some bright lines need to be drawn to punish egregious behavior.

Focusing on the Iowa case, here is some background from The U.S. Constitution Blog:

As we’ve discussed, the doctrine of absolute prosecutorial immunity is both difficult to apply and contrary to constitutional text and history; thus, the settlement and dismissal of this case means the Court will not have the opportunity, at least not this Term, to clarify its immunity jurisprudence – or, more important, to recognize the error of absolute immunity.

However, the parties’ decision to drop the case does leave in place the 8th Circuit’s decision in favor of Harrington and McGhee, which held that in this instance, the prosecutors did not have absolute immunity because the misconduct at issue occurred when the prosecutors were acting as investigators, rather than performing “prosecutorial functions.” The press release issued by Harrington’s counsel presents an eloquent depiction of the injustices wrought by flagrant prosecutorial misconduct and the need for the Supreme Court to modify its jurisprudence so that more prosecutors will be held to account for constitutional misconduct.

We would argue that similar checks need to be put on judges who engage in constitutional misconduct. The whole reason this blog exists is because my wife and I were repeatedly cheated by multiple Alabama state judges. And we are convinced that never would have happened without the protection judges enjoy because they are immune from most lawsuits.

Does the Iowa case mean immunity is crumbling, at least a little? We sure hope so. And in our view, it can't happen too soon.