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.