“No right not to be framed”

Should prosecutors who frame innocent people be immune from civil liability?

In a case argued before the Supreme Court, two prosecutors who helped police successfully frame two young black men for murder, as a result of which the men spent twenty five years each in prison, sought to bar a lawsuit against them by their victims on the grounds that their actions as prosecutors enjoyed absolute immunity. Twenty-seven state Attorneys General and the U.S. Department of Justice supported that claim. Apparently if prosecutors are liable for concocting and presenting false evidence in court, that will have a chilling effect on their exercise of their official functions.

One possible legal view, it turns out, is that prosecutors enjoy an absolute immunity for their actions in the courtroom, but only a “qualified immunity” for their actions pre-trial. Under that qualified immunity, they can be sued only if their actions violate a fundamental right. But the lawyer for the prosecutors argued that there was no independent right “not to be framed,” and Deputy Solicitor General of the United States backed him up.

When people ask me why I never went to law school, I usually answer, “Because I know the difference between right and wrong, and want to keep it that way.” How can the lawyer who made that claim, or that lawyer’s superiors, live with themselves? Answer? They were trained in law school not to feel guilty for doing such things, under the labels “Adversary system” and “Zealous advocacy.” Ycccch!

Apparently the justices made it clear that they weren’t having any, thanks, and the county settled the for $12 million. Unfortunately, that means that the relevant legal question hasn’t been formally answered. And the doctrine that a prosecutor who presents in court evidence he knows to be faked and testimony he knows to be perjured in order to convict a man he knows to be innocent is absolutely immune from liability for having done so wasn’t even challenged. The theory of the case was that the prosecutors were liable for helping police prepare the fraudulent case, rather than for presenting it in court. Their lawyers argued – apparently with a straight face – that, since the mere preparation of phony evidence can’t harm anyone unless it’s presented in court, the victims weren’t damaged by the pre-indictment actions, while the post-indictment actions were absolutely immune from scrutiny.

None of the news stories mentions any attempt either to put the prosecutors behind bars themselves – I think twenty-five years each would be about the right sentence – or even to disbar them. A fraud on the court leading to a wrongful conviction ought to be a serious crime with no statute of limitations.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

12 thoughts on ““No right not to be framed””

  1. Amen, brother, amen.

    I have long argued that death penalty proponents should be willing to have judges and prosecutors do without prosecutorial and judicial immunities in all capital prosecutions … after all, they tell us, the system works great at finding truth and protecting people from malicious/racist/lazy prosecutions — so they should have nothing to fear from doing without any immunity from civil (or even criminal) penalties in cases where the cost of error or misconduct might cause the defendant to get a needle in the arm.

  2. According to Robert van Gulik's notes to his entertainting detective stories set in Imperial China starring Judge Dee, Chinese magistrates had a free hand in their tribunals, including the power to torture suspects and witneses – but had no perrsonal immunity for their actions. So if they got it wrong, they could lose thei heads. Much the same held for provincial governore in Rome, at least under the Republic; and I dare say for satraps in the Achaemenid empire and magistrates in the France of Louis XIV. Total immunity for judges must be a fairly recent innovation; still more for prosecutors.

  3. I know that the Talmud discusses cases when a judge can be held liable for an erroneous ruling. I’m not even going to try to summarize the rules because I’m sure I’d get it wrong, but there is at least some concept of limited immunity for judges back in the fifth century.

  4. The party line in law school is that absolute immunity is necessary in order for the system to work, as it prevents judges and prosecutors from having to defend (and this is probably actually true) frivolous suits for actually doing their jobs. On the other hand, this goal could probably just as easily be met through qualified immunity with a high initial burden on the would-be plaintiff.

  5. You don't have to go to law school to unlearn the difference between right and wrong, you just have to need a paycheck.

  6. I'll echo yoyo. Given all we know about our brains' ability to rationalize, and given the pressure on even honest police and prosecutors to bring successful cases, there have to be SOME consequences to be feared for dishonesty, in order to maintain some kind of balance. We can't just rely on a guilty conscience to do the job.

  7. The two prosecutors are now judges, as I understand it.

    I think many lawyers (like me) go through an initial period of what I would call formalism that unduly emphasizes the need for clear procedural mechanisms to make the system operable. For the most part you absolutely do need a strong attorney client privilege or the system cannot operate. And the same is true for deadlines, prosecutorial discretion and immunity, as well as the fact that there is no shame in defending someone you know to be guilty. None of these doctrines is celebrated as abstract moral principles, but without them you would have a lot less effective justice.

    Some lawyers never get over this, especially those who become prosecutors. But for me, I think eventually I got to a point where I decided that, whatever the constitution actually gurantees in the way of rights, the formal needs of the system have to give way where someone has proven that they are actually innocent, particularly where those claims are based on evidence that was not available or actually withheld at the time of the trial. I would extend this belief to withdrawing immunity in instances where prosecutors demonstrably engaged in fraud or fabrication of evidence to convict an innocent person. That is so beyond any good faith effort to carry out the scope of their authority that punishing them for it is unlikely to impede the efforts of other prosecutors.

    The problem with sticking with formalism to the bitter end is that you will undermine confidence that our system produces just results — and faith that our system produces fair results, overall — is the most important thing for making it work. Indeed, if we fail to punish such behavior, we make it more likely that guilty defendants will be able to raise doubts in juries that prosecutors frequently do not act in good faith.

  8. Given what we know about SLAPP on the civil side and Alberto Gonzales on the criminal side, it's hard to argue that prosecutors and police officer won't be hit with unfounded lawsuits and malicious prosecutions for doing their jobs. Of course, you could make the penalties for falsely filing such suit hard enough to hit the plaintiff's lawyers, but that's not going to happen either.

    I think, in a way, that this conundrum is one of the unintended results of "conservative" hatred for social safety nets and of the huge inequalities in our society. The effect on a prosecutor of actually being sanctioned for this kind of misbehavior would be to turn them from a member of the upper class to a member of the underclass. And that just can't be countenanced.

  9. Paul, nobody is talking about "sanctioning" prosecutors in this case through any vehicle other than a civil suit, for which their employer would bear the consequences. Indeed, proscutors are NOT exempt as individuals from criminal prosecution for obstruction of justice, of which the conduct in this case is surely a good example.

    As for the larger point — we can't let prosecutors become paupers — let me just say, criminality is not a function of who you are but what you do. If you commit actions that constitute the elements of a crime, you are a criminal, even if you are also a lawyer, doctor, accountant, etc. Every day prosecutors disabuse credentialed professionals of the notion that they should not have to suffer the consequences of their illegal actions because the loss of stature would be too hard for them to bear.

  10. Barabara: sorry for the misunderstanding. I was speaking in the annoyed third person. Of course it can be countenanced, but you can probably count on a few people's fingers the prosecutors who are actually willing to go after their own or after the police officers they collaborate with. (And the disparity in charging and sentencing between upperclass and underclass for pretty much any crime is well known…)

  11. Amplifying on Seth's comment: The Torah also specifies that the penalty for being a false witness is that you get hit with the same penalty as the person you falsely witnessed against. If making up evidence is false testimony, what is? So 25 years for these guys sounds right to me.

  12. Yoyo is making a pretty profound point. Most of us live in a society in which we are agents for some kind of principal to whom we are accountable. This isn't just lawyers: it is everybody who is an employee, every corporate official, every elected official subject to reelection, and maybe every elected official period. Within the scope of your agency, you are accountable to your principal, not yourself. Agency is a mask: a necessary social role. Within the scope of your agency, you must check your persona at the door. A good lawyer must cheerfully make appalling arguments; a good store clerk must cheerfully deal with the nastiest customers. It is the same principle.

    Mark–as a tenured academic–is one of the few exceptions to this rule. Arguably, judges are another. Trustafarians are a third. Students may be a fourth. Mark didn't escape agency by escaping law school; he escaped it by getting tenure.

Comments are closed.