Suing the DA

Should prosecutors be immune from civil lawsuits?

Radley Balko | April 24, 2008

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney's office that prosecuted the case routinely used the testimony of so-called "jailhouse snitches" prosecutors knew or should have known weren't reliable.

Goldstein's case is unusual because he's not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein's case to go forward, causing the U.S. Supreme Court to agree to hear it.

Goldstein's lawsuit stems from federal law 42 U.S.C. 1983, which states that "…[e]very person" who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages," and provides a means for those wronged by government officials to file suit in federal court.

But there are exceptions to Section 1983 suits. In the 1976 case Imbler v. Pachtman, the U.S. Supreme Court carved out a wide exception to the law to exempt prosecutors. The Court said common law tradition grants prosecutors have what's known as "absolute immunity" from civil rights suits, meaning that they can't be sued, provided they're acting in their capacity as prosecutors. Few people enjoy such protections in their own line of work (judges have absolute immunity as well).

But this complete shield from accountability is especially problematic when we're talking about prosecutors. It's a job that's already plagued by incentive problems. We tend to measure a prosecutor's performance based on how many people he's able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn't take. So we have people in a position where they have the enormous power to take away someone's freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds.

It's a recipe for abuse.

Generally speaking, it is smart public policy to shield prosecutors from lawsuits when it comes to determining in which cases they'll pursue charges. If we hamstring prosecutors into factoring potential lawsuits into determining whom to charge, we run the risk of bringing politics or the wealth and status of the accused into what should be a question of law, context, and propriety (any more than these things are already factor into such decisions, anyway).

But you could make a good case that absolute immunity takes this idea too far. Even police officers are given what's called "qualified immunity" from civil rights suits, which in 1983 the Supreme Court determined meant, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

That sets a hurdle for lawsuits against the police, but not a wall (some would argue that this hurdle is also too high). It might be time to consider applying that standard to prosecutors, too.

But the Goldstein case doesn't even seek to overturn the 1976 decision in Imbler. That would take an act of Congress—and again, perhaps that's something Congress should consider.

Instead, the suit targets Mr. Van de Kamp as the manager of the district attorney's office. It says that he's guilty of negligently overseeing his office, and allowing his subordinates to use unreliable, uncorroborated testimony from prison inmates.

Given the current makeup of the Supreme Court, I'd be pleasantly surprised if they allowed Goldstein's lawsuit to go forward. But they should.

More broadly, we need to reconsider the idea of absolute immunity for prosecutors.

There's plenty of evidence that this shield from accountability is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in reason magazine quite similar to the Goldstein case. In 2006, Church Point, Louisiana resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants.

Despite the fact that the family's home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses — who were offered time off from their own sentences in exchange for their testimony — claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

U.S. Attorney Donald Washington's office had been made aware of this network in a prior conspiracy case, yet his subordinates went on to ask some of the same witnesses to testify in the Colomb case. Even after the extent of the network was revealed in the Colomb trial, federal prosecutors attempted to use some of them again in yet another federal drug case.

Ann Colomb is now suing Washington's office. Whether her suit will be permitted to go forward may depend on what the Supreme Court does in the Goldstein case. As it stands, the family is broke from their criminal case. Though they were cleared of all charges, the government has yet to even apologize to them, much less compensate them for the five years they were under suspicion, of the four months they served in prison.

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed—if uncomfortable—sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.

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The Wine Commonsewer|4.24.08 @ 12:05PM|#

Interesting, as always.

I'm not certain how the mechanics should work, but I don't think anyone should have absolute immunity from the folly of their misdeeds. Not prosecutors. Not judges.

Naga Sadow|4.24.08 @ 12:09PM|#

24 years? Goddamn! Murder these days gets you only five years after factoring in parole eligibility.

Michael Ejercito|4.24.08 @ 12:09PM|#

What about strict criminal liability for prosecutors?

If they convict someone who is innocent, they are automatically sentenced to serve the three times the sentence that the innocent person was sentenced to.

Elemenope|4.24.08 @ 12:09PM|#

No, they should not have immunity.

They should walk as if they are on eggshells when wielding powers that can deprive citizens of property and liberty (and in many states, even life). Their actions should be heavily scrutinized, and their misdeeds open to castigation by the normal civil means.

PC|4.24.08 @ 12:09PM|#

Funny (and sad) how in occupations where the stakes are highest, that negligence is tolerated the most.

Imagine if the same attitude were applied to medicine, how safe would you feel undergoing surgery?

Michael Ejercito|4.24.08 @ 12:12PM|#

Strict liability should apply. Nothing less than strict liability will work.

Chuck|4.24.08 @ 12:22PM|#

Imagine if the same attitude were applied to medicine, how safe would you feel undergoing surgery?

It will be, just as soon as we get our nationalized health care enacted.

|4.24.08 @ 12:25PM|#

Strict liability has the downside that it would promote nonprosecution of many cases. Most don't have home-run evidence, after all.

What we need is some personal accountability and not what we have today: "I can do anything, anything at all, because I am Prosecutor Man!" For example, a prosecutor who can be shown to have sat on exculpatory evidence should be criminally charged and disbarred. Period. I don't mind them trying to convict people, but prosecutors should be held accountable for not playing by the rules, which, after all, exist to protect us from government overreach in the first place.

|4.24.08 @ 12:28PM|#

If I have said it once, I have said it a thousand times - our vaunted legal system makes a mockery of rights because it ignores, or perhaps, condones abuse that is obvious to anyone who resides in reality. for example, If the article is correct, what sanctions were applied to the individuals who knew that cons were getting information to make their lying more credible? What's the fancy legal word - suborning perjury?

Episiarch|4.24.08 @ 12:33PM|#

Prosecutors are lawyers. Judges are lawyers. Lawmakers are mostly lawyers.

You do the math. The math works just as well for Internal Affairs and cops.

|4.24.08 @ 12:37PM|#

Episiarch,

Worse yet, regulation of lawyers is largely conducted by state bars (and/or state supreme courts)--all lawyers. There was an attempt to move the regulation to the legislature in Florida (which is not all lawyers), but it failed.

Naga Sadow|4.24.08 @ 12:43PM|#

Reminds me of Shakespeare. Kill all the lawyers!

|4.24.08 @ 12:43PM|#

Prosecutorial immunity should definitely be qualified. Qualified immunity isn't a perfect standard, but it does hold public officials accountable for their more egregious and intentional misconduct. Prosecuting based on skimpy evidence alone wouldn't meet this standard, but withholding or manufacturing evidence certainly would. Relying on the testimony of obviously unreliable jailhouse snitches? That might be a gray area.

Steve Verdon|4.24.08 @ 12:45PM|#

Cue Patterico's nitpicking post in...3...2...1...

|4.24.08 @ 12:49PM|#

IANAL but,

That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell.

I consider this all too common practice indistinguisable from bribing a witness in principle, and given the value that we place on freedom, even more heinous than financial inducements for perjury in reality.

Goldstein alleges that the district attorney's office that prosecuted the case routinely used the testimony of so-called "jailhouse snitches" prosecutors knew or should have known weren't reliable.

I've no problem here. If it is routinely done, then the DA was de facto encouraging the use of perjured testimony to prosecute the accused. Given the info I have available, the D.A. should not only be finacially liable, he should be prosecuted (for civil rights violations, if nothing else) as well.

But I'm a bleeding heart liberal in some ways.

Episiarch|4.24.08 @ 12:57PM|#

I consider this all too common practice indistinguisable from bribing a witness in principle, and given the value that we place on freedom, even more heinous than financial inducements for perjury in reality.

It's worse than that. The prosecutor is essentially handing the freedom of an innocent man to a liar, who is also a criminal (assuming he didn't get convicted in the same corrupt manner), in order to score a conviction.

So you have an innocent man imprisoned and an actual criminal goes free and is back on the streets.

Reprehensible. An almost complete inversion of justice.

Russ 2000|4.24.08 @ 1:37PM|#

So you have an innocent man imprisoned and an actual criminal goes free and is back on the streets.

Yep, the worst of both worlds.

With strict liability, many guilty never get prosecuted. But that beats having any innocent imprisoned.

With the current system, we jail as many as we can and will let a few guilty go if it pumps up the overall numbers. If that's the preferred outcome, then honesty and regulation of rules/standards become arvitrary tools to be used as they suit the purpose rather than principles that must be adhered to.

The shame of it all is that liberty used to be near the top of preferred outcomes, now it's so far down on the list of preferred outcomes that its basically not on the list anymore.

|4.24.08 @ 1:42PM|#

our vaunted legal system makes a mockery of rights because it ignores, or perhaps, condones abuse that is obvious to anyone who resides in reality

We're all ears as to suggestions.

T|4.24.08 @ 2:09PM|#

I'm in the camp that favors strict liability. If you convict a guy using false testimony or doctored evidence and it can be shown you knew about it or reasonably should have known, off to jail for you. Then we can let the civil lawsuits commence.

I'll use the engineering field as an example. Once someone, as a PE, stamps and signs off on anything they are making the legally binding statement that the work was done under their supervision and that everything is correct. They are taking personal responsibility for the work, up to and including jail time and civil suits if anything goes wrong. Why we can't hold prosecutors to the same standards is beyond me.

TrappedEastOfTheBigMuddy|4.24.08 @ 2:12PM|#

Absolute immunity is a crock.

But I'd argue against some of the stronger suggestions made in the comments---strict liability for one.

We want---well, at least I want---to have a working criminal justice system after we apply the fix. So we can't swing the incentives over so far that prosecutors decline to go after most crimes, nor can we allow defendants (convicted or freed) so broad a scope to attack the prosecutors that their counter moves constitute an effective denial of service attack on the criminal justice system.

Presumably this means a fairly high hurdle to pass before you can even force the prosecutor's office to respond to you charges. Something along the lines of all such charges being automatically treated to a motion for summary judgement like consideration before the prosecutors office even has to file paper.

I'd suggest that a finding of actual innocence post-conviction should pass that hurdle automatically, and perhaps also a not-guilty finding after being help without bail for a substantial period.

TallDave|4.24.08 @ 2:12PM|#

Two words: THANK GOD!!

This is exactly the kind of reform we need.

Why we can't hold prosecutors to the same standards is beyond me.

Power politics, pure and simple.

Jennifer|4.24.08 @ 2:13PM|#

I don't know how to word this, but prosecutors should be liable for deliberate errors, but not honest mistakes. For example: if I'm falsely convicted based on eyewitness testimony (and it turns out the real criminal does, in fact, look a lot like me, and I had no good alibi for where I was when the crime occurred), the prosecutor likely shouldn't be held liable for this honest mistake (though I should still get a shitload of money from the government to compensate me for my lost freedom).

But a false conviction based on bribing jailhouse snitches, suppressing or doctoring evidence, ignoring evidence of alternate scenarios. . . throw the book at the SOBs.

|4.24.08 @ 2:24PM|#

One problem with this line of thinking is that it doesn't really do justice to the fact that our system of justice is adversarial. If a DA has a witness (even a "jailhouse snitch") willing to testify against someone they believe is guilty, it's their duty to have that witness testify. They know that certain witnesses have credibility problems; that doesn't mean they can't or shouldn't put them on the stand. At least in California, there are jury instructions that inform jurors that it's their duty to weigh the credibility of the witnesses. Why should prosecutors be liable in this case; why not defense attorneys; why not jurors?
There are laws against suborning perjury, they should be enforced vigorously, there are laws against failing to disclose exculpatory evidence, those should be enforced vigorously. I don't want to live in a state where prosecutors so fear the tort bar that they pass on any case that has problems.
It's hard enough to get talented lawyers to take up a relatively low-paying job as it is.

Jennifer|4.24.08 @ 2:39PM|#

One problem with this line of thinking is that it doesn't really do justice to the fact that our system of justice is adversarial. If a DA has a witness (even a "jailhouse snitch") willing to testify against someone they believe is guilty, it's their duty to have that witness testify. They know that certain witnesses have credibility problems; that doesn't mean they can't or shouldn't put them on the stand.

But our system of offering incentives to witnesses (i.e. "testify for the prosecution and we'll reduce your sentence") only enhances their credibility problems. It's one thing to say "it's the DA's duty to put this witness on the stand," but another thing entirely for DAs and prosecutors to have the ability to go about encouraging people to be a witness by offering them bribes.

There's a rule in journalism--legit journalism, not Dr. Phil crap--which says you don't pay your sources. Prosecutors have a hell of a lot more power than journalists do.

So I'm thinking: if I write a story and quote someone who turns out to be lying, well, maybe there was no way I could've known that, so mea culpa and I'll learn from my mistake. But if it turns out I offered money or anything of value to this lying source, I have no right to later say "it's not my fault." And a prosecutor or DA shouldn't have that right either.

|4.24.08 @ 2:48PM|#

~~I don't know how to word this,~~ I'm going to say what most people here are thinking in a clear and concise manner, but prosecutors should be liable for deliberate errors, but not honest mistakes.

Fixed.

|4.24.08 @ 2:50PM|#

Oh. I should have struck Jennifer's but.

|4.24.08 @ 2:59PM|#

In contracts, I often carve out "willful misconduct and gross negligence" from limitations of liability provisions. Maybe that's the standard we should use for exposing prosecutors to personal liability.

the innominate one|4.24.08 @ 3:05PM|#

only if you wanted to be slapped, vm. and not with a lawsuit, I suspect.

Jennifer|4.24.08 @ 3:07PM|#

There's also the HUGE problem in that it's currently legal for the prosecution to offer bribes to witnesses, but not the defense.

|4.24.08 @ 3:08PM|#

"the prosecutor likely shouldn't be held liable for this honest mistake"

Yes they should. If I make a mistake driving my car and hit someone I'm liable. These are adults folks, no one made them become prosecutors. They hold a position of great power. Mistakes should have serious consequences- they certainly do for those who pay for their mistakes with portions of their lifetime.

Steve Verdon|4.24.08 @ 3:17PM|#

They know that certain witnesses have credibility problems; that doesn't mean they can't or shouldn't put them on the stand.

IANAL, but....

So let me get this straight, you are saying that even if the DA suspects that his wittness is lying, has an incentive to lie, and the DA has an oath to pursue justice he should still but this witness on the stand and that such a practice should be viewed as a good thing?

At least in California, there are jury instructions that inform jurors that it's their duty to weigh the credibility of the witnesses.

Are DAs and prosecutors not only ethically, but legally bound to disclose any and all "inducements" to get the "witness" to testify so that the jury can make such an evaluation? Absent that information, such jury instructions are just bullsh*t.

Why should prosecutors be liable in this case; why not defense attorneys; why not jurors?

Because they aren't the ones offering ~~bribes~~ incentives to the snitches to testify? I'm just guessing here.

There are laws against suborning perjury, they should be enforced vigorously, there are laws against failing to disclose exculpatory evidence, those should be enforced vigorously. I don't want to live in a state where prosecutors so fear the tort bar that they pass on any case that has problems.

The problem is you have that "fox/hen house" problem here as well. I'm afraid the idea of letting lawyers police themselves isn't going to help all that much.

Steve Verdon|4.24.08 @ 3:22PM|#

Yes they should. If I make a mistake driving my car and hit someone I'm liable. These are adults folks, no one made them become prosecutors. They hold a position of great power. Mistakes should have serious consequences- they certainly do for those who pay for their mistakes with portions of their lifetime.

I agree. The solution isn't to forgive "honest mistakes" but to demand better practices and procedures. If you have a position where you have tremendous influence over whether or not a person loses their freedom and maybe even their life, you goddamned make sure every 'i' is dotted and every 't' is crossed.

It really is the same problem with no-knock raids, IMO: sloppy work. Sloppy work leads to mistakes. In the area of no-knock raids and prosecuting someone for a serious crime sloppy work needs to be discouraged, not encouraged.

|4.24.08 @ 3:36PM|#

Because they aren't the ones offering bribes incentives to the snitches to testify? I'm just guessing here.

Dammit, it's so much worse than that. They are, in effect, threatening people with years in prison if they do not testify on the prosection's behalf. It is de facto witness intimidation, and that is ill-fucking-legal*.

* IANAL, but I didn't just fall off the turnip truck either.

T|4.24.08 @ 3:38PM|#

If you have a position where you have tremendous influence over whether or not a person loses their freedom and maybe even their life, you goddamned make sure every 'i' is dotted and every 't' is crossed.

Exactly. If you're going to try to take somebody's life from them, either by imprisonment or execution, it is incumbent on you to make sure you did everything correctly and honestly. Anything less makes you a danger to the public you claim to serve.

|4.24.08 @ 3:45PM|#

Errr, correct me if I'm wrong. If you are driving a car while working for the government and hit somebody accidentally, absent gross negligence, you are NOT liable for damages. The government is. It is the same with the D.A. Absent malice, negligence etc. an honest mistake does not make him liable. The state is liable for damages caused by incorrect judicial decisions.

Russ 2000|4.24.08 @ 3:49PM|#

Absent that information, such jury instructions are just bullsh*t.

Another way to phrase it is "Absent that information, all state prosecutions AS A RULE contain reasonable doubt.

Ben|4.24.08 @ 3:50PM|#

No one should have immunity for intentional wrongdoing. Not judges, not prosecutors, not legislators, not presidents, not police, and not the common person.

Look at the constitutional problems we have -- one reason we have them is that while the constitution says that congress "shall make no law abridging freedom of speech", one of the first things they did was make precisely those kinds of laws. They continue to do so today. And why is this? It is because the constitution has no teeth -- there is no punishment for making laws that abridge freedom of speech.

Similarly with ex post facto laws; the constitution forbids it - twice - in no uncertain terms. Legislators go ahead and create them anyway, and in some cases, such laws have gone all the way to the supreme court and allowed to continue on the books.

Cops break down doors without warrants, though there is no exception for them in the constitution; the feds utilize a ludicrous misinterpretation of the commerce clause to inflict themselves on intrastate commerce (and anything that can in the most tenuous fashion imaginable be linked to intrastate commerce), and no one will ever be punished for that, either; laws restricting the citizen's freedom to keep and bear arms proliferate like flies on dung, despite the ironclad prohibition against such laws in the constitution.

If we were to start over, and I had any say, one of the first things that would happen in the crafting of a new constitution would be to add the teeth it is missing.

If we want to do something that is, on its face, unconstitutional, then we should attempt amendment. If that process does not complete successfully, then that's the end of it. Making laws *anyway* is the act of a despotic and out of control government. If we want to do something illegal, then the law needs to be changed or that's the end of it. "Immunity" is a weak point that should never be designed into any system. Responsibility for our actions is part of what guides us. Remove that responsibility and severe problems arise. We can see numerous historical and contemporary examples of these from the prison system to the presidency and every level of society in between.

That's my two cents, anyway. Not that it matters. We live in an corrupt society with an inherently broken decision making process (by which I mean that democracy, without further vetting, directly results in a system where any two uninformed individuals can outvote an expert, in a social and educational environment that is guaranteed to produce far fewer experts than uninformed individuals.)

Invisible Finger|4.24.08 @ 3:54PM|#

If we were to start over, and I had any say, one of the first things that would happen in the crafting of a new constitution would be to add the teeth it is missing.

The only tooth that could be added is justifiable assassination.

|4.24.08 @ 4:11PM|#

The entire law enforcement apparatus in this country, from the police themselves to the DA's offices, is all too often characterized by a thuggish disregard for the rights of suspects and defendants and a frequent disregard for justice. Arrest and conviction are all too often the only goals, without regard for the guilt or innocence of a defendant.

I no longer support the death penalty, not because I consider it a barbaric, cruel, or unusual punishment for certain types of crimes.
I now oppose it, largely because of the disturbing number of DNA-related aquittals, which leads me to believe that a relatively large percentage of those executed were innocent. And those saved were only those for whom some form of DNA evidence was preserved or even involved in the original crime, a very small minority of those convicted.

Prosecutors and police should be subject to the most rigorous prosecution and punishment where there is clear evidence of knowingly using tainted testimony, exculpatory evidence suppression or destruction of any sort of facts or evidence that might weaken the prosecution's case.

These criminal enforcement personnel are violating the most sacred sort of public trust.

Sue them? Like hell! Put them in the worst sort of maximum security prison and let them mix with the general population.

In a fascist state prosecutors are immune. Since the US has become a fascist state, prosecutors will continue to receive immunity. The checks and balances within the government have been corrupted. We continue to lose our rights and the government officials responsible with upholding the Constitution have failed miserably. The small centralized government has ballooned and is ready to burst!

The WoD has corrupted the entire justice system. It is the "NEW SLAVERY". In a free society, there must be a prison system to affirm that freedom exists. Instead of the system of justice the founders envisioned, we now have a criminal justice cartel of law enforcement, prosecutors & private penal institutions. They object at any attempt reign in their power. Look no further than the major fight over medical marijuana. No one with a conscience would deny the sick and dying a treatment that works. But when it comes to money, our government and judicial system only protects itself and not citizens.

The Democratic Republican|4.24.08 @ 4:14PM|#

On a related note (related to the case Radley blogged earlier this week about the use of evidence from wrongful arrests), I just read this @ cnn from the Navy lawyer appointed to represent Khalid Mohammed at his tribunal hearing:

"No civilian court, he says, would accept confessions obtained after a defendant was mistreated. But the CIA admits Mohammed was waterboarded, a controversial interrogation technique that involves simulated drowning"

|4.24.08 @ 4:22PM|#

"""The shame of it all is that liberty used to be near the top of preferred outcomes, now it's so far down on the list of preferred outcomes that its basically not on the list anymore."""

Sadly, I agree.

""" Why should prosecutors be liable in this case; why not defense attorneys; why not jurors?"""

Both attorneys maybe. But the jury just makes a decision based on what is presented. They are not pro-active in presenting false or bad evidence to themselves.

|4.24.08 @ 4:28PM|#

""""Sue them? Like hell! Put them in the worst sort of maximum security prison and let them mix with the general population.""""

But first you would have to prove beyond a resonable doubt that they "knowingly using tainted testimony, exculpatory evidence suppression or destruction of any sort of facts or evidence that might weaken the prosecution's case."

The knowingly part makes it tough to get a purjury conviction. I would expect the same. With a civil suit the burden of proof is lower.

|4.24.08 @ 4:32PM|#

Make that a prejury conviction.

Steve Verdon|4.24.08 @ 4:42PM|#

Dammit, it's so much worse than that. They are, in effect, threatening people with years in prison if they do not testify on the prosection's behalf. It is de facto witness intimidation, and that is ill-fucking-legal*.

Is it though? Far be it for me to defend prosecutors, but in this limited context we are talking about jail house snitches, who were presumably convicted and are indeed guilty of said crimes.* Instead, it is a might fine looking carrot the prosecutor is dangling in front of person in a bad situation.

*Okay, some might be wrongfully convicted doing whatever they can to get out, but I'm not sure it is technically intimidation.

|4.24.08 @ 4:44PM|#

A prejury conviction? That seems wrong to me. What's the point of a jury if you can get a conviction before the jury is involved?

|4.24.08 @ 4:45PM|#

[Evil laughter]

Z|4.24.08 @ 4:51PM|#

Prosecuters and police need more accountability.

But, many of the suggestions on this board would lead to a completely dysfunctional justice system where real criminals would never be held accountable.

yeeesh! I'm a wild-eyed radical and y'all are forcing me to be the voice of reason. stop it!

|4.24.08 @ 4:58PM|#

Z, your idea for better accountability is?

|4.24.08 @ 6:50PM|#

Great article as usual Mr. Balko.

|4.24.08 @ 6:54PM|#

Should defense attorneys be held liable if they use questionable tactics to get their client acquitted when they know he is guilty? Should both prosecutors and defense attorneys be subject to the same accountability standards?
Just something to think about.

|4.24.08 @ 8:02PM|#

Steve Verdon - These are jailhouse snitches. As I read it, the snitch is awaiting prosecution just like the defendent, which explains why they are sharing living quarters. The prosecutor has broad discretion on what charges to file, what plea bargain to offer, etc. In that case, it IS witness intimidation.

Of course if the snitch has already been convicted and sentenced, than it's merely bribery. Somehow it still make me want to gargle.

|4.24.08 @ 8:14PM|#

Should defense attorneys be held liable if they use questionable tactics to get their client acquitted when they know he is guilty?

Questionable? No. Illegal? They should be prosecuted and disbarred.

Should both prosecutors and defense attorneys be subject to the same accountability standards?

Defense attys don't send people to jail. Only prosecutors do that. If the boat you're piloting is that incompetent defense attys should be disbarred, I'm onboard. The defense attorney has a legal and moral obligation to provide a cxompetent defense. If he doesn't, fuck him.

The problem, as others have pointed out, is the lawyers club does not want to hold lawyers club members accountable for their actions. Can you imagine if used auto fraud could only be judged by other car salesman? That is the situation with lawyers and state bar associations today.

|4.24.08 @ 11:10PM|#

Episiarch wrote: "Prosecutors are lawyers. Judges are lawyers. Lawmakers are mostly lawyers.

You do the math. The math works just as well for Internal Affairs and cops."

Actually, Internal Affairs cops often feel that bad cops make THEM look bad, and are more likely to go overboard than to give the bad cops a free pass.

Michael Ejercito|4.25.08 @ 12:13AM|#

But our system of offering incentives to witnesses (i.e. "testify for the prosecution and we'll reduce your sentence") only enhances their credibility problems. It's one thing to say "it's the DA's duty to put this witness on the stand," but another thing entirely for DAs and prosecutors to have the ability to go about encouraging people to be a witness by offering them bribes.

All criminal defendants have the right to remain silent.

What motivation would criminals have to testify against their partners, effectively declaring their guilt before a court?

Michael Ejercito|4.25.08 @ 12:15AM|#

But first you would have to prove beyond a resonable doubt that they "knowingly using tainted testimony, exculpatory evidence suppression or destruction of any sort of facts or evidence that might weaken the prosecution's case."

Why not apply strict liability?

That would get rid of the need to show intent.

Ann Colomb Defense Fund|4.25.08 @ 4:08AM|#

Does it exist? If so, I'll donate.

|4.26.08 @ 2:21PM|#

The Nifong frame of lacrosse players in Durham is a recent example of prosecutorial abuse. This case deserves additional investigation by the national press. The local press is hopeless.

|4.26.08 @ 2:47PM|#

I have often wondered how immunity of any kind, judicial or legislative, passes muster under the Equal Protection clause. One of the main purposes of the Constitution was to clearly limit the power of gov't.

|4.26.08 @ 3:37PM|#

Should prosecutors be immune to civil suits? The short answer is, "Hell, YES!". As a practical matter the courts would be completely clogged with frivolous lawsuits filed by angry felons, their relatives, and anyone who thought the DA was "mean" to them on cross-examination.

What about the special case when the prosecutor is shown to have broken the law to obtain a conviction? I just have to say it's not worth opening the floodgates, no matter how egrecious his conduct. There are other remedies: report him to the Bar Association's Ethics Committee to get his law license pulled. Or have him arrested if the statute of limitations hasn't expired. But there's so much potential for abuse in the civil courts that I'm just totally against it.

|4.26.08 @ 5:00PM|#

I'm guessing there aren't lots of prosecutors that hang around here, so what the hell, I'll weigh in.

In the real world just outside Libertarian heaven, you often have cases that cannot be proved without convincing one co-defendant to testify against the other. Do we not prosecute such cases?

Also in the real world, at least in my little jurisdiction, I've never seen any case that depended solely on a co-defendant's uncorroborated testimony. Indeed, in such a case, the jury would be instructed that such evidence is highly suspect, or words to that effect.

Also, strict liability? Holy cow! There ought to be some actual wrongdoing, don't you think? I gather the consensus here is that prosecutors have overwhelming power to arbitrarily convict the innocent, but really, it's harder than that to prove a case beyond a reasonable doubt. We have to prove murderers have some level of culpable mental state, for instance. Are prosecutors so damn bad that plaintiffs against us shouldn't even have to prove negligence, for crying out loud?

|4.26.08 @ 7:38PM|#

How about leaving everything as it is except for making the state Bar Association civilly responsible for its 'immune' members' misdeeds? I suspect getting landed with a huge settlement because a DA abused his position would have the Bar Association looking at his license real hard.

dre|4.27.08 @ 2:33AM|#

Has anyone ever heard of cross examination? Perhaps the defense might consider attacking the veracity of the [incarcerated] witness's testimony. Unless it was a bench trial, a jury necessarily gave substantial weight to the perjured testimony. Moreover, the testimony of one witness in a case such as this is hardly sufficient to establish guilt beyond a reasonable doubt.

Immunity to civil suits for prosecutors and judges is crucial for the effective administration of justice for two reasons. First, civil liability would have a chilling effect on prosecutors. Second, the chilling effect may make prosecutors risk adverse to the public's detriment.

My prediction is that the Supreme Court will reverse the 9th Circuit. Attorney misconduct is a disciplinary matter for the Bar. Moreover, District Attorneys are elected officials whose employment is contingent on the consent of the people.

|4.28.08 @ 9:44AM|#

I was a prosecutor for 7 years and never put a single person in jail. In every case I prosecuted, a Jury found the defendant either guilty (beyond a reasonable doubt) or not guilty, based upon the evidence. In each case, a Judge (not the prosecutor) sentenced the convicted defendant. That same Judge had the power to overturn the decision of the Jury if he/she felt as though the evidence was insufficient or if the verdict was contrary to the weight of the evidence. Not all cases are as glamorous as those on CSI. As a prosecutor, sometime you are stuck with the "his word against her word" case, where there is no physical evidence. Then what? The bottom line is that the Jury or the Judge makes a judgment on the credibility of the witness; as a prosecutor, I call the witness to the stand and ask the relevant questions. Unless a prosecutor intentionally solicits or suborns perjury, he/she should be immune from any civil liability arising from a prosecution.

|10.29.09 @ 6:45PM|#

Unable to find an Attorney in Kansas City, Missouri-backward State. I am located in Kansas City, Missouri. For 3 years we have had a nightmare with Michael Huffman, Jackson Cty.Prosecuting Attorney 816-881-3555, fax 816-881-4526, with a lawsuit by the MO State Revenue, he messed up. We were paying but he decided to ask for ALL the money up front and garnished,levied our salary and bank accounts at 100% leaving us with zero income, no health insurance and has repeated this for 3 years. He is treating us as criminals and at the rate of rich criminals. We are under financial hardship and I am unemployed. He yelled at us at the Courthouse after 3 years of his unanswered calls, letters and faxes, his superiors have allowed this to continue, video survelillance of the incidense should attest. After this he yelled he would seek jail-time and the maximum this after taking ALL our money. We waited and did not get anything from him so we sent in $200 of the $3000 owed. He just sent us a revised of a revised of a revised bill from $3400 now we owe $2200 without the $200 already sent in. Is anyone seeing this? He also sent us a Trial date of 12/1, and we need a Civil Rights Attorney right away. 8166828661.

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