Absolute prosecutorial immunity?

For framing two innocent men for murder? I hope not.

When prosecutors deliberately frame two innocent men for murder and get them sentenced to life in prison without parole, are they covered by absolute immunity?   All I can say is, I hope not.

Here are the facts, per Nina Totenberg.

The principal witness was 16-year-old Kevin Hughes, who had a criminal record, and after being arrested in a stolen car, first fingered twoother men, one of whom turned out to have been in jail on the night of the crime.

After his first stories didn’t pan out, Hughes implicated Harrington and McGhee, but his eyewitness account was riddled with errors.

He initially got the site of the shooting wrong and the weapon. He said the murder was committed with a handgun, then said a 20-gauge shotgun and finally a 12-gauge shotgun.

He also failed a polygraph test. According to lawyers for Harrington and McGhee, the Council Bluffs police and prosecutors knew all this and more. But they went ahead and indicted the two men, winning convictions before an all-white jury.

That may not be an accurate or complete statement of the case. But the claim of the lawyers for the prosecutors is that even those facts wouldn’t constitute a cause of action, because prosecutors have absolute immunity for their conduct at trial and their massive cheating at the investigative stage inflicted no independent injury:  it was the conviction, not the accusation, that did the damage.  No, seriously.

I can understand requiring lawsuits against prosecutors (and judges) to be run through some sort of screening first so they can’t be used to harass.  But (speaking as a non-lawyer) the whole idea of absolute immunity for anyone makes me sick to my stomach.   I don’t really want these guys sued:  I’d rather see them put on trial for, among other things, subornation of perjury.  But of course the victims spent so much time behind bars before being freed that the statute of limitations has long since run.

I can understand why the Justice Department weighed in on the prosecutors’ side; that’s pretty much a reflex action.  But it’s a reflex I’d like to see the new leadership at DoJ start to suppress.

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

11 thoughts on “Absolute prosecutorial immunity?”

  1. "But the claim of the lawyers for the prosecutors is that even those facts wouldn’t constitute a cause of action, because prosecutors have absolute immunity for their conduct at trial and their massive cheating at the investigative stage inflicted no independent injury: it was the conviction, not the accusation, that did the damage. No, seriously."

    In the great movie Collateral, screenwriter Stuart Beattie has the hit man say sardonically "No, I didn't kill him. I just shot him. The bullet and the fall killed him."

    Life imitates art yet again.

  2. I'm going to have to agree with Prof. Kleiman here. We are living in an age of the imperial prosecutor, and these guys, including the government agencies that can bring quasi-criminal civil proceedings, seriously need their ears pinned back.

    While I don't practice in criminal law, I have never been impressed with the quality of judges or government lawyers. While there are occasional bright lights (usually those from patrician backgrounds), they're usually overwhelmingly mediocre or worse. I can't believe the quality of our justice system was actually something we used to brag about during the Cold War. When I got to see it up close, I couldn't imagine that this system is anything to brag about.

    As far as crime control is concerned, many if not most of the worst crimes are solved immediately. Prosecutors have nothing but a counterproductive role in identifying criminals — if they're pushing it to get a conviction, there's too much likelihood they're wrong. Even so, most of the worst criminals will be caught; if not this time, then the next. I am a hardcore incapacitationist — all we need to do is find the bad guys and isolate them from society, which isn't a very difficult proposition. (The most prolific criminals are the people with high testosterone and poor impulse control (low IQs)). Retribution in individual cases (which is what leads prosecutors to push particular cases) isn't so important from a crime control perspective, for the reason that so few crimes are actually prosecuted. For example, I don't have the figures offhand, but I remember reading that muggers commit astronomical numbers of muggings before they receive signficant prison terms. Why should we only be concerned with retribution in the one case that criminals are caught for? Most of the worst criminals have committed an impressive portfolio of crimes before they start getting serious prison sentences. I believe this incapacitationist logic is the unacknowledged basis of the "broken windows" theory that has been so successful in New York — put 100 19 year old turnstile jumpers in jail for thirty days, and you've probably prevented more than a few robberies, burglaries or larcenies.

    I have great hopes for Prof. Kleiman, who has obviously thought a lot about crime control. Where I disagree is in the possibility of rehabilitation — he believes that treating criminals as an animal trainer would through quick and sharp punishment of even criminals with the worst outlook might incentivize 19 and 20 year old active criminals to change their behaviors, but I am skeptical. Criminal careers end by aging out – i.e., better impulse control due to the decrease of testosterone. Best just to put the worst on ice until they are 40 years old or so, which may be the de facto function of the stiff drug sentences everyone agrees are too long. Maybe the best system would have indeterminate sentencing that was not solely dependent on reported behavior in prison, but included biometrics — i.e. hormone levels or brain functioning.

    The upshot of this is that we do not need particularly brilliant or creative prosecutors, as most criminals are caught red-handed at one time or another. Therefore, we don't need to offer immunity, just as we don't to policemen who may occasionally use excessive force or commit similar infractions.

  3. I'm reading a book far too late into the night because it has so captured me, and it's very highly appropriate for anyone appalled by the argument quoted above:

    THE SUPREME COURT ON TRIAL: How the American Justice System Sacrifices Innocent Defendants

    by George C. Thomas III (U Mich Press, 2008; KF9685.T48 2008)

    A really, truly well-written, outstanding/depressing book.

  4. To be clear, McGhee & Harrington don't dispute that the prosecutors who apparently framed them (David E. Richter & Joseph J. Hvrol) have absolute immunity for their conduct at trial. The Supreme Court settled that issue in Imbler v. Pachtman (1976), a year before the murder at issue. (It's another story that the relevant statute, the Klan Act of 1871 – which came up here last week in connection w/ Joe Arpaio –, on its face confers absolute immunity on nobody. It's yet another puzzle, to me anyway, why policy-balancing arguments should justify absolute, rather than qualified, immunity.) The Court employs a functional test: it attaches immunity not to the prosecutor's person or office, but to the exercise of her judicial function. John Paul Stevens for the majority in Buckley v. Fitzsimmons (1993):

    <<… as the function test of Imbler recognizes, the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor. Qualified immunity "'represents the norm'" for executive officers, Malley v. Briggs, 475 U. S. [1986], at 340, quoting Harlow v. Fitzgerald, 457 U. S. [1982], at 807, so when a prosecutor "functions as an administrator rather than as an officer of the court" he is entitled only to qualified immunity. Imbler, 424 U. S., at 431, n. 33. There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is “neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” Hampton v. Chicago, 484 F. 2d 602, 608 (CA7 1973) (internal quotation marks omitted), cert. denied, 415 U.S. 917 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he “has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.” 484 F. 2d, at 608-609.>>

    If I understand, one novelty of Pottawattamie Co. v . McGhee is that the petitioners (Richter & Hrvol) read Imbler in a way that blows up its distinction of functions. A denial of rights is the result of a sequence of events, 1, 2, 3, …, N. The last element in the sequence, N, is the proximate cause – in this case, a rigged trial. Everyone acknowledges that no liability can attach to the prosecutors' bad acts at trial. But they draw the further conclusion that this entails that they're also off the hook for 1, 2, 3, … , N-1. First, again, they wanna blow up the distinction between judicial & investigative functions: they’d subsume 1, 2, 3, … , N-1 under the rubric of N. Second, they wanna claim that 1, 2, 3, … , N-1, the distal causes, aren’t really causes at all. Or, because the injury they cause is brought about through a causal sequence the last step of which is absolutely immunized, they too are absolutely immunized. This offends against intuition. Among other things, it'd grant prosecutors absolute immunity for the self-same acts for which cops – to whom the function of framing hapless innocents more often falls – can uncontroversially be held liable.

  5. "But of course the victims spent so much time behind bars before being freed that the statute of limitations has long since run."

    Not a lawyer, just watched a lot of L&O…but, could it be argued that their behavior constituted a conspiracy to suborn perjury and that the conspiracy continued well after the actual act of the initial perjury? Possibly Obstruction of Justice under similar circumstances (or possibly in place of the perjury).

    And never mind the bar complaints, and now EVERY case they ever prosecuted now has grounds for an appeal (many BS appeals, but…)

  6. I have copyrighted the word 'yes'. Please send all payments for use of this word to me via Barak Obama 1400 Penn Ave. Washingmyhair, DC. Also, I have copyrighted the name 'Michele Obama'. I will be contacting her shortly.

  7. I heard the NPR story and was astounded. Not being a lawyer, I'm not familiar with all the statutes, but this seems extremely problematic. As related by Totenberg, Sotomayor's questions (basically about curbing prosecutorial misconduct), seemed right on. Given their track record, I'm not confident the Roberts Court will rule wisely nor according to precedent. I'll have to hunt down more pieces on this one, but it does remind me of the Second Circuit's recent, horrible ruling on Maher Arar. The message sure seems to be that those in power cannot be held accountable, even when they break the law, even though they are sworn to uphold and defend it.

  8. I am pleased to note that the Supreme Court of Canada held in the opposite direction in the Nelles case in 1989. (Nelles v Ontario, [1989] 2 Supreme Court Reports 170 (http://www.canlii.org/en/ca/scc/doc/1989/1989canlii77/1989canlii77.html) Before that case, prosecutors had had absolute immunity. The court held that actual malice invalidated that protection. It did suggest that liability would be rare, and it has been.

    Tomorrow, Nov 6/09, the Court will release its decision in Miazga, and will decide (one hopes) whether mere negligence can constitute 'malice' and thus found liability. A lot of prosecutors are hoping it won't.

    There are a lot of nuisance suits against prosecutors, almost all failures, but it at least serves as harassment. Defendants even threaten prosecutors during trial with lawsuits. Nonetheless the principle of Nelles is clearly right.

    Fortunately for us, most prosecutors are very able and dedicated, too – maybe they're generally better paid than their American counterparts. I am not a criminal lawyer, but I know a number of prosecutors. Obviously there are good ones and others, but Horseball's characterization of US prosecutors would ring no bells even among the defense bar here.

  9. I was trying to remember what case this reminded me of, and rereading the NPR version's "no freestanding right not to be framed" reminded me: Rizzo v. Goode. There, Rehnquist wrote an opinion that said (among other things): If there is a right not to have the police select you, based on race, to pick up and beat with truncheons, it's not the federal government's job to enforce it.

    What's unfortunate here is that the case is apparently (thanks to the way our legal system is stacked) only viewable as a tort against the men who were wrongly imprisoned, whereas it's also wrongdoing against the entire polity and more specifically a fraud against the administration that employed the prosecutors and police.

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