The Infallible Prosecutor

Should prosecutors who manufacture evidence be susceptible to lawsuits?

Radley Balko | September 28, 2009

A prosecutor manufactures evidence in order to win a conviction. After the convicted serves 25 years in prison, exculpatory evidence pointing to another perpetrator surfaces. The convicted is released. Should he be able to sue the prosecutor who concocted the false evidence used to convict him?

Believe it or not, it's still an open question. In November, the Supreme Court will hear arguments on Pottawattamie v. McGhee in order to resolve it. The facts of the case aren't in dispute. In 1978, a retired Iowa police captain was killed by a shotgun blast while working as a private security guard. Prosecutors Joseph Hrvol and David Richter then worked with local police to manufacture evidence against the two chief suspects, Terry Harrington and Curtis McGhee, Jr. The two men were convicted of the murder in separate trials, and each was sentenced to life without parole.

The Iowa Supreme Court set aside both convictions in 2003, citing exculpatory evidence pointing to another suspect that was withheld from defense counsel in both trials. Both men were eventually released from prison. Seeking damages for losing 25 years of their lives, they brought a civil rights suit against the police, prosecutors, and county that convicted them. Hrvol and Richter maintain that under the Supreme Court's decision in the 1976 case Imbler v. Pacthman, they have absolute immunity against such a suit.

In Imbler, the Supreme Court determined that a prosecutor who knowingly uses false testimony and withholds exculpatory evidence is immune from damages, even in cases where his misdeeds result in a wrongful conviction. The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring. In another case involving a falsely convicted man attempting to bring a lawsuit, the Court extended absolute immunity to include district attorneys who poorly supervise their subordinates.

Hrvol and Richter contend that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years. Their motivation for making this argument is obvious; they'd rather not pay for their misconduct. But they're supported in amicus briefs filed by the U.S. Solicitor General, the National District Attorneys Association, and the attorneys general of 27 states and the District of Columbia. Notably, Cook County, Illinois, home to a number of wrongful convictions, also filed its own brief in support of the prosecutors.

The Court has put one small dent in the absolute immunity shield enjoyed by prosecutors. In the 1993 case Buckley v. Fitzsimmons, it ruled that prosecutors who act as investigators in a case are subject to the more limited qualified immunity afforded to police officers with respect to the actions they take as investigators. Qualified immunity is still a high hurdle; it doesn't exactly open prosecutors up to a barrage of lawsuits. A claimant must show that a state actor violated his "clearly established statutory or constitutional rights," as those rights are understood by a "reasonable person" (as distinguished from a legal professional). Under Buckley, prosecutors who violate the clear constitutional rights of a defendant while serving an investigatory role can be sued, but once they assume the role of a prosecutor, they're immune.

In Buckley, the defendant was incarcerated for three years while the state attorney concocted forensic evidence against him. But by the time he was tried, a new state attorney had been elected. The first jury was unable to reach a verdict. Buckley was eventually released and all charges against him were dropped. He then filed suit against multiple parties. It was his suit against the state attorney that made it to the U.S. Supreme Court. Hrvol, Richter, and the government entities supporting them split hairs to distinguish their case from Buckley: In Buckley, they point out, the prosecutor who tried the case wasn't the same person who manufactured the evidence. Since Hrvol and Richter were a full-service operation—manufacturing evidence and trying the case—they argue that they should be immune from a lawsuit. They say that the rights of Ghee and Harrington were violated when they were convicted based on the false evidence, not when the evidence was actually manufactured. Under that interpretation, Hrvol and Richter were acting as prosectors when the civil rights violations occurred, so they have absolute immunity.

It's a stunner of an argument. If the Supreme Court buys it, it would mean that prosecutors who invent evidence to convict innocent people would only be susceptible to a lawsuit if a prosecutor other than themslves ends up using that evidence in court. If they argue the evidence, they can't be touched. Among other things, these rules create a double standard: Prosecutors acting as police investigators would enjoy more protection than actual police investigators. In fact, the argument removes prosecutors from virtually all civil accountability or liability.

Supporters of extending absolute immunity argue that prosecutors are held accountable in other ways—by appellate courts, bar associations, and legal disciplinary boards. But an amicus brief filed by the Cato Institute, the American Civil Liberties Union, and the National Association of Criminal Defense Attorneys cites studies of wrongful convictions in California, New York, and Chicago, all of which found that though prosecutorial misconduct contributed to a sizable majority of cases that sent innocent people to prison in those states, the misbehaving prosecutors were almost never sanctioned.

If the Supreme Court rules for Hrvol and Richter, it would essentially overturn Buckley and give prosecutors complete immunity, even when they conspire to convict an innocent person from the earliest stages of an investigation. The vast majority of prosecutors would never engage in such reprehensible conduct, of course. But it's curious why professional district attorney organizations and government agencies want to protect the lowly few who would.

Radley Balko is a senior editor at Reason magazine.

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|9.28.09 @ 12:11PM|#

I'm surprised the Court has decided to hear the case, when it sound like there is already precedent in the favor of prosecutors? Since they're bothering to hear it, does one think McGhee could win?

|9.28.09 @ 12:13PM|#

Of course prosecutors should be able to be sued! By falsifying evidence, they are essentially lying to a judge and a jury, which no one is supposed to be able to do. It's stupid that prosecutors are even allowed to get away with this! Since when is dishonesty ever upheld? The law system sickens me for how contorted and unethical it is, no offense if your one of the honest ones, but you ought to try and help fix this.

Mark A. Adams JD/MBA|11.5.09 @ 2:31PM|#

If you're one of the honest ones who dares to take action to expose corruption and abuse of power, you will be eliminated. For one of many examples, see “Justice” in Florida’s Supreme Court!?! at http://blip.tv/file/1339250 and don’t miss the links below the video.

BakedPenguin|9.28.09 @ 12:18PM|#

...it's curious why professional district attorney organizations and government agencies want to protect the lowly few who would [engage in...reprehensible conduct].

See NEA; unqualified / incompetent / felonious teachers.

|9.28.09 @ 12:18PM|#

The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring.

Legal reasoning is such a hoot. In my logic class, I learned that logic is basically binary math. So 1 + 1 has to equal 2 (sorry, I duuno what 2 looks like in binary). Legal reasoning has no such constraints. If a judge says 1 + 1 = 3, who the fuck are you to question his "reasoning?"

|9.28.09 @ 12:25PM|#

I don't think the good guys are gonna win this one. The dual standard for accountability (one for the law enforcement establisment, one for mere citizens) is too well entrenched in our society.

Immunity is one thing; professional ethics are another. I'm all for these jokers being prosecuted, but even if they aren't, they should be disbarred.

Warty|9.28.09 @ 12:31PM|#

Troy, there are only 10 kinds of people in this world.

|9.28.09 @ 12:33PM|#

Warty,

Only in your binary universe.

|9.28.09 @ 12:35PM|#

should the prosecutor be susceptible to a lawsuit?

I was thinking more along the lines of "bullet in the neck".

------

the possibility of such suits would affect their judgment in determining what cases to bring.

Is that, like, bad?

T|9.28.09 @ 12:37PM|#

Legal reasoning is such a hoot. In my logic class, I learned that logic is basically binary math. So 1 + 1 has to equal 2 (sorry, I duuno what 2 looks like in binary). Legal reasoning has no such constraints. If a judge says 1 + 1 = 3, who the fuck are you to question his "reasoning?"

This conversation recurs repeatedly in my house. I am but a simple engineer, used to logic and reason. I try to apply that to the law, and my wife (a non-practicing lawyer) looks at me like I'm stupid and says "It doesn't work that way."

CaptainSmartass|9.28.09 @ 12:40PM|#

The vast majority of prosecutors would never engage in such reprehensible conduct, of course. But it's curious why professional district attorney organizations and government agencies want to protect the lowly few who would.

Um, because it isn't a "lowly few" who do this kind of thing in the first place? Maybe the DA organizations understand that if prosecutors lost their immunity that most of them would face civil suits within a short matter of time.

Mike M.|9.28.09 @ 12:44PM|#

Hrvol and Richter contend that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect's innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.

If this nonsense is permitted to stand in the Supreme Court, they are effectively giving up any remaining pretense of America being a republic, a democracy, or any other kind of free society.

Absolute prosecutorial immunity to this extent is an abomination that belongs in a fascist dictatorship. I think there's a pretty good chance that the court will reject this appalling argument.

|9.28.09 @ 12:44PM|#

the possibility of such suits would affect their judgment in determining what cases to bring.

Is that, like, bad?

No shit. Since when is accountability affecting your judgment a bad thing? I thought that was the whole point.

|9.28.09 @ 12:50PM|#

In Imbler, the Supreme Court determined that a prosecutor who knowingly uses false testimony and withholds exculpatory evidence is immune from damages, even in cases where his misdeeds result in a wrongful conviction. The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring...

Gee, I would kinda think that was the idea

/sarcasm

|9.28.09 @ 12:52PM|#

Foiled by RC Dean again!

|9.28.09 @ 1:02PM|#

"""Since when is dishonesty ever upheld?"""

It's been upheld a few times. They are allowed to deceive you to obtain information for example. Once you give them a free pass on deception, they will find new and creative ways to use it.

robc|9.28.09 @ 1:04PM|#

Civil suits?

Im trying to figure out why he isnt facing criminal charges?

I figured triple damages is about just. So 75 years seems about right.

|9.28.09 @ 1:05PM|#

They have almost alway argued that having to think twice is a bad thing, and anything that would detour them from bringing charges against someone is bad.

EscapedWestOfTheBigMuddy|9.28.09 @ 1:06PM|#

[Prosecutors Joseph Hrvol and David Richter] say that the rights of Ghee and Harrington were violated when they were convicted based on the false evidence, not when the evidence was actually manufactured.

That's rich.

As if the defendant doesn't have the right to a truthful prosecution.

There are no circumstance when it is OK for a prosecutor to knowing use false testimony
or fake evidence. Jeezus, people, this amounts to lying to the court.

I am actually favor of a fairly stiff and high hurdle before allowing defendants to bring any kind of action against prosecutors, and a higher one still for winning such suits. In particular, I don't think that winning a false conviction as such should be actionable against the prosecutor personally. But there are limits, and engaging in a criminal conspiracy to kidnap an innocent defendant goes way, way past them.

If there was a conspiracy to manufacture or tamper with evidence, then the prosecutors should be disbarred, held in contempt, and liable for a civil suit that will leave them shirtless.

|9.28.09 @ 1:07PM|#

Well, I tell you what. If I spent 25 years in jail for a murder i didn't commit, and could get no satisfaction from the courts. The Mother F@#$%^s that manufactured evidence would find themselves and their families the victim's of violent retribution. What do I have to lose? My life is ruined and I am already "Institutionalized" by the quarter century I spent inside because of those scum. Maybe if Street Justice was handed out to these criminal scum the so-called courts would change their tune on "immunity". They my have immunity from the courts, but not from me.

Spartacus|9.28.09 @ 1:08PM|#

the possibility of such suits would affect their judgment in determining what cases to bring.

This is, of course, reprehensible. It is far better to let their judgment be affected by publicity and political ambition.

|9.28.09 @ 1:12PM|#

If the prosecutors win this one, I'm going to see if I can get a full-time gig sitting in the witness chair, crying, "She turned me into a newt!"

EscapedWestOfTheBigMuddy|9.28.09 @ 1:15PM|#

P Brooks,

With socialized medicine you won't have to pay anything to get better, so it's all good.

|9.28.09 @ 1:16PM|#

I was thinking more along the lines of "bullet in the neck".

Which part of the neck?

Spartacus|9.28.09 @ 1:17PM|#

One more thing: If I were the presiding judge at that trial, and I found out a prosecutor did this in my courtroom, he would be in jail longer for my string of contempt charges than he would be for simple perjury.

|9.28.09 @ 1:18PM|#

""""Supporters of extending absolute immunity argue that prosecutors are held accountable in other ways-by appellate courts, bar associations, and legal disciplinary boards. But an amicus brief filed by the Cato Institute, the American Civil Liberties Union, and the National Association of Criminal Defense Attorneys cites studies of wrongful convictions in California, New York, and Chicago, all of which found that though prosecutorial misconduct contributed to a sizable majority of cases that sent innocent people to prison in those states, the misbehaving prosecutors were almost never sanctioned."""

Scaila might say it's not SCOTUS's job to do their job.

"""As if the defendant doesn't have the right to a truthful prosecution."""

Sadly, that's correct and upheld by SCOTUS. You have a right to a trial, and a speedy trial. Just not one based in truth.

Your $3 Walmart credit card ca|9.28.09 @ 1:19PM|#

Troy | September 28, 2009, 12:18pm | #

Legal reasoning is such a hoot. In my logic class, I learned that logic is basically binary math. So 1 + 1 has to equal 2

1+1=11, you fucking carbon-based moron!

EscapedWestOfTheBigMuddy|9.28.09 @ 1:19PM|#

Tim Mayhugh,

Personally I'm surprised we don't hear of more of that kind of thing. But I suspect that if you (1) didn't do it and (2) were naive enough to think you'd get actual justice from the courts, then you might well be the kind of person who is either (a) genuinely nice, civilized, and good or (b) mortally afraid of punishment and thus deter-able. Either way, the bad guy goes unpunished.

EscapedWestOfTheBigMuddy|9.28.09 @ 1:23PM|#

As long as I am ranting: where the hell is the uproar that this slime balls failed to put away the actual crook?!?

I mean, the person or persons who actually killed the man, spent 25 years not being punished for the deed.

Isn't this important, too?

|9.28.09 @ 1:31PM|#

I doubt a $3 walmart calculator can do binary.

In binary, 1 + 1 does not equal 2. It equals 10.

But I'm being nerdy.
The bullies heard that, I gotta run.

|9.28.09 @ 1:33PM|#

Which part of the neck?

The carotid artery; this would result in a spectacularly gory, horrific demise, while allowing an opportunity for a brief period of introspection prior to the final "lights out".

Douglas Gray|9.28.09 @ 1:37PM|#

Just sued!! Forget it, the prosecutor should go to prison and serve an amount of time equal to the victim!!

kinnath|9.28.09 @ 1:42PM|#

Which part of the neck?

A lifetime as a quadraplegic would be fitting.

|9.28.09 @ 1:53PM|#

Some day I'd like to have a 11 way.

Pendulum|9.28.09 @ 2:02PM|#

I think absolute immunity wins in the Supreme Court, 7-2, with Stevens and Ginsburg dissenting.

The Chief will write a meticulous, well crafted opinion, where he examines every nook and cranny of the text, history, and structure of the clause under evaluation, before racing to his policy conclusion and talking about the importance of law enforcement in protecting the social interests of safety and order.

|9.28.09 @ 2:03PM|#

Troy, there are only 10 kinds of people in this world.

That is my favorite geek t-shirt of all time.

Michael Ejercito|9.28.09 @ 2:33PM|#

I have heard and read that injustice creates terrorism.

How would this sort of thing not create terrorism?

Maybe the DA organizations understand that if prosecutors lost their immunity that most of them would face civil suits within a short matter of time.

They should.

In fact, why not make it a strict liability crime, like some states do for the purchase of cold medicine?

Would you join Al Qaeda as well?

|9.28.09 @ 2:44PM|#

So Tim Mayhugh, what I hear you saying is:
"You think you're above the law. You're not above mine."

Spartacus, I agree, which is why you and I will most likely never become judges.

Lastly, J sub pretty much nailed it right on the head, that is the underlying issue.

Seriously, isn't what they did akin to perjury?

|9.28.09 @ 2:50PM|#

Also, you're allowed to say "Motherfuckers" here.

Michael Ejercito|9.28.09 @ 2:51PM|#

You think you're above the law. You're not above mine.

Indeed.

Some people reacted violently to the publication of cartoons of the prophet Mohammed. Should not wrongful conviction beget a violent response?

Are we,as a society, less willing to stand up for ourselves than those Muslims who were willing to kill and burn over cartoons?

jk|9.28.09 @ 2:53PM|#

Just another example of an illegitimate government creating laws that allow its representatives to do things that would put mere citizens in prison.

jk|9.28.09 @ 2:56PM|#

>>Seriously, isn't what they did akin to perjury?

That's exactly what it is. Except that the prosecutor is a representative of the government.
In a free republic laws apply equally to individuals and the government.

We do not live in a free republic.

Prosecutor Dredd|9.28.09 @ 3:01PM|#

I am the law.

|9.28.09 @ 3:04PM|#

Urkobold Dredd, I think you meant "Uhhh ehm da luh."

Prosecutor Dredd|9.28.09 @ 3:06PM|#

It's true, I lack Stallone's years of voice training.

GW|9.28.09 @ 3:11PM|#

This story is from Russia right?
RIGHT?

Mike DeSoto|9.28.09 @ 3:12PM|#

"In Imbler, the Supreme Court determined that a prosecutor who knowingly uses false testimony and withholds exculpatory evidence is immune from damages, even in cases where his misdeeds result in a wrongful conviction. The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring."

I would certainly hope so! Is there any other field of life in which deliberate malpractice is protected like this?

Rich Vail|9.28.09 @ 3:12PM|#

Methinks that the right honourable William Shakespeare, Esq. had it right in Henry VI, Part 2 | Act IV, Scene 2

CADE
I thank you, good people: there shall be no money;
all shall eat and drink on my score; and I will
apparel them all in one livery, that they may agree
like brothers and worship me their lord.

DICK
The first thing we do, let's kill all the lawyers.

CADE
Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o'er, should undo a man? Some say the bee stings:
but I say, 'tis the bee's wax; for I did but seal
once to a thing, and I was never mine own man
since. How now! who's there?

Michael Ejercito|9.28.09 @ 3:13PM|#

That's exactly what it is. Except that the prosecutor is a representative of the government.
In a free republic laws apply equally to individuals and the government.

We do not live in a free republic.

Then we need to take the law into our own hands.

Mike DeSoto|9.28.09 @ 3:13PM|#

I think absolute immunity wins in the Supreme Court, 7-2, with Stevens and Ginsburg dissenting.

I think you're a clown.

Michael Ejercito|9.28.09 @ 3:15PM|#

I would certainly hope so! Is there any other field of life in which deliberate malpractice is protected like this?

What is to stop the wronged party from engaging in vigilante justice?

|9.28.09 @ 3:15PM|#

That quote proves that Shakespeare was an attorney and, thus, Francis Bacon, because he has the bad guys say the bit about killing the lawyers.

Mike DeSoto|9.28.09 @ 3:32PM|#

The Imbler ruling was made in 1976 by the Burger Court, perhaps the most activist left-wing court this country has ever seen. I expect the Roberts court to rule differently.

Javert|9.28.09 @ 3:33PM|#

Rational thought says you can't outlaw bad intentions by evil people.

Mike T|9.28.09 @ 3:40PM|#

This is why outsourcing is bad, mmmkay?

1+1=11, you fucking carbon-based moron!

01+01 = 10, you Chinese-made $3 POS...

Mike T|9.28.09 @ 3:42PM|#

It will be interesting to see who sides with the prosecutors on this one. The SCOTUS has to know that if they side with the prosecutors on this one, that that will be the ultimate blow to the legitimacy of the courts. Everything the courts do will be backed by force in the eyes of the informed members of the public; no one will be able to credibly believe that they have moral legitimacy.

|9.28.09 @ 3:51PM|#

Rational thought says you can't outlaw bad intentions by evil people.

It also indicates that when evil people act on their bad intentions, they should be hunted down and punished with sufficient severity to discourage further wrongdoing.

Federal Dog|9.28.09 @ 4:07PM|#

"before racing to his policy conclusion and talking about the importance of law enforcement in protecting the social interests of safety and order."

Both of which are fatally compromised by allowing murderers to kill with impunity when prosecutors can score an easy conviction by fabricating evidence against innocent men.

|9.28.09 @ 4:18PM|#

Hey man, I am not saying that I am above the law. After I kill those evil Mother Fucker's and their families for putting me in a cage for 25 years, WRONGFULLY!!! I will happily submit myself to the bar once again. I have respect for the law, however I respect Natural Law more. If you wrong me this grievously and the law of man will not give me justice. The law of man leave me no other recourse that to seek my own JUSTICE in natural law. Since those cocksuckers had no respect for the law of man or nature they are deserving of no respect or protection from either.

|9.28.09 @ 4:20PM|#

The simple fact is if asshole's like this had to face the music along with their familie's because the law of man protected them. They might rethink being such dicks in the first place and do their jobs. Their job is SUPPOSED to be to seek justice, not get convictions by any means necessary.

Spartacus|9.28.09 @ 4:23PM|#

Kool--

I judge all the time, I am only lacking in the powers to enforce my judgments. Which is probably a good thing.

|9.28.09 @ 4:39PM|#

prosecutors must held accountable for such misconduct, as liabilities, they are not above the "law" and any form of government which covers as protect such misconduct are as well lawlessness/ I have personally seen of 2-cases where misconduct and whereas later it had been overturn due such misconduct and the aftermath and families destruction it brings, is not good, therefore, these prosecutors who do such MUST be prosecuted as well held liable.

|9.28.09 @ 4:50PM|#

"Should he be able to sue the prosecutor who concocted the false evidence used to convict him?"

I think the questions should be 'Should he be able to SHOOT the prosecutor who concocted the false evidence used to convict him?'

And would a jury convict him?

Zeb|9.28.09 @ 4:55PM|#

In my fantasy legal system, the death penalty is reserved for agents of the government like this who abuse their power.

|9.28.09 @ 4:57PM|#

"""This story is from Russia right?
RIGHT?"""

It makes me miss the cold war.

"""Their job is SUPPOSED to be to seek justice, not get convictions by any means necessary."""

The irony is that any means necessary is so they can show the public how well their fighting crime largely due the fact that voting public is very, very pro-law enforcement.

|9.28.09 @ 4:58PM|#

and anti-crime

|9.28.09 @ 5:31PM|#

Tim, I was paraphasing your OP.
I agree with it.
It was the prosecuters who are above the law.
/quicky iPhone post

SteveBrooklineMA|9.28.09 @ 5:49PM|#

McGhee is still legally guilty of this murder. He entered an Alford plea to second degree murder in exchange for time served.

If the civil suit is allowed to continue, what is to stop criminals from filing nuisance suits against prosecutors as retribution? Isn't that the downside here? That prosecutors will shy away from legitimate prosecution for fear of retribution in civil court?

|9.28.09 @ 6:14PM|#

There's a difference between "immune to prosecution" and "immune to being sued".

A prosecutor who manufactures evidence should be get nailed and be held criminally (and professionally) liable.

A prosecutor shouldn't be sued by the individuals who were prosecuted/persecuted by the prosecutor for the financial enrichment of that individual.
.
.
.
We don't/can't pay prosecutors enough for them to be able to afford legal representation for every lawsuit which could potentially be filed. Any activist group could offer free legal representation to individuals over and over again until a prosecutor is broke from the legal fees and is forced to quit his job.

Would we want the people who are prosecutors to be only those who are acceptable to the most radical and unethical fringe groups operating in their locale?

Mike DeSoto|9.28.09 @ 7:01PM|#

"Isn't that the downside here? That prosecutors will shy away from legitimate prosecution for fear of retribution in civil court?"

I don't think that requires us to accept prosecutors who fabricate evidence to get convictions. In fact I know it doesn't. Do we allow policemen to frame suspects in this manner? No. So why allow prosecutors to do so?

Federal Dog|9.28.09 @ 7:19PM|#

"He entered an Alford plea to second degree murder in exchange for time served."

What were the prosecutors threatening if he refused to admit to sufficient facts?

Why does the fact that he succumbed to the threats make a difference to your understanding of prosecutorial misconduct in this case?

Kevin Carson|9.28.09 @ 7:46PM|#

Lawsuits, hell. Manufacturing evidence should be subject to criminal prosecution, with a mandatory sentence (without parole) equal to the number of years stolen from the convicted person's life. And while I don't normally think prison violence or rape is an appropriate subject for humor, I'm perfectly OK with the idea of a crooked prosecutor (yes, Nancy Grace, I mean you) being kept in the general population of a maximum security prison without any special protections. Preferably with the words "crooked prosecutor" tattooed on their foreheads.

Michael Ejercito|9.28.09 @ 8:17PM|#

It will be interesting to see who sides with the prosecutors on this one.

The Obama administration's Justice Department, for one.

The Solicitor General's office cited a quote that "it had been thought in the end that better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation"

Because the constant dread of retaliatory killing is much better than the constant dread of a lawsuit, right ?

Michael Ejercito|9.28.09 @ 8:22PM|#

I think the questions should be 'Should he be able to SHOOT the prosecutor who concocted the false evidence used to convict him?'

And would a jury convict him?

Would a judge or jury in Saudi Arabia convict someone who killed an infidel in reaction to seeing a cartoon depicting the Prophet Mohammed?

If the civil suit is allowed to continue, what is to stop criminals from filing nuisance suits against prosecutors as retribution? Isn't that the downside here? That prosecutors will shy away from legitimate prosecution for fear of retribution in civil court?

It is better than the fear of retribution by killing.

After all, people are willing to kill other people because of the publication of cartoons by the Prophet Mohammed. How much more should wrongful convictions provoke a violent retribution?

|9.28.09 @ 8:48PM|#

By what authority other than negligence by the people is any judicial representative immune from criminal prosecution for falsifying evidence or withholding exonerating or exculpatory evidence . It's bad enough when this is done by our administration and congress, by the right to a speedy and honest trial os the foundation of the legal process.
If the only recourse is violence in the name of liberty, so be it.

|9.28.09 @ 8:54PM|#

"When insolence outrunneth the law, men customarily arm themselves to chastise the offense upon the body of the offender, for the proverb saith, No courtesy sans valour."

Not blunt enough for ya? Does prosecutorial immunity extend to stopping a good old-fashioned tarring and feathering? I am aware that a restraining order does not prevent husbands from killing their wives or girlfriends; is this another instance of the same phemonenon? Inquiring minds and all that, ya know? If there is no legal avenue to redress a commonly-occurring offense against common sense, reason, and decency, then an illegal avenue will be taken. Human nature.

|9.28.09 @ 9:01PM|#

The greatest and most continuing threat to individual liberty in the U.S. remains:

PROSECUTORIAL ABUSE

R. Richard Schweitzer

Michael Ejercito|9.28.09 @ 9:10PM|#

Not blunt enough for ya? Does prosecutorial immunity extend to stopping a good old-fashioned tarring and feathering? I am aware that a restraining order does not prevent husbands from killing their wives or girlfriends; is this another instance of the same phemonenon? Inquiring minds and all that, ya know? If there is no legal avenue to redress a commonly-occurring offense against common sense, reason, and decency, then an illegal avenue will be taken. Human nature.

I can only hope so.

If violence was sufficient to put an end to publications of cartoons ofn the Prophet Mohammed , then violence will be sufficient to deter wrongful convictions.

anonymous|9.29.09 @ 12:22AM|#

"If violence was sufficient to put an end to publications of cartoons ofn the Prophet Mohammed , then violence will be sufficient to deter wrongful convictions."

Except that cartoons are a wrong against everyone in the population of people that get pissed off about cartoons, whereas false imprisonments are crimes against a population of one. And that one is fairly old and worn down psychologically when they can actually do something about it.

Now, if they somehow break out of jail while they still have some fire and hatred, and somehow have access to old priest's stash of cash, drugs, and high powered weaponry, then maybe they will get some payback. Hey, actually, that would be a kickass movie premise.

Michael Ejercito|9.29.09 @ 3:06AM|#

Except that cartoons are a wrong against everyone in the population of people that get pissed off about cartoons, whereas false imprisonments are crimes against a population of one. And that one is fairly old and worn down psychologically when they can actually do something about it.

Maybe we should emulate the tactics and the mindset of those people who reacted violently towards the cartoons. After all, we now know that it works.

Think about it. By the use of violence against perpetrators of injustice, we can eliminate injustice from the world.

|9.29.09 @ 3:42AM|#

Had a thought to extend my earlier post that criminal prosecution is much preferrable to suing rogue prosecutors.

Manufacturing evidence isn't something that can happen in a vacuum. Evidence can't just magically appear in court. Someone has to discover it, take custody of it, etc. which implies more than one person since the prosecutor usually isn't also the various policemen, investigators, lab techs, etc. in a case.

People who are part of an ongoing organization which is committing crimes...doesn't that mean racketeering as in RICO?

Treat "possible rogue prosecutors" like they treat "possible drug dealers": confiscate all their assets (cars, house, financial accounts), sell everything at auction, the government pockets the proceeds of the sale. Then the government decides whether or not they're going to prosecute the "possible rogue prosecutor".

If the government decides not to prosecute him, well, no harm done, right? After all, that's exactly what happens to normal citizens who aren't government employees. And its been upheld in court that seizing and selling all of someone's possessions before and/or without prosecution isn't a "punishment" which is by definition supposed to happen in our legal system only after a successful prosecution.

Using RICO against them would not only be justice but somewhat a poetic justice.

Ever wonder how long the abuses of RICO would continue if it were used, when applicable, against those who run our justice system?

|9.29.09 @ 9:56AM|#

Prosecutors who manufacture evidence should be susceptible to the death penalty.

|9.29.09 @ 10:26AM|#

I'd say that, as manufacturing false evidence is not part of a prosecutor's legitimate role and duties, a prosecutor who does this is not acting in his or her role as a prosecutor when he or she does this, but simply as a private citizen. Accordingly, manufacturing false evidence in an effort to convict a person who might not have been convicted in its absence should be considered conspiracy to commit kidnapping or attempted kidnapping - the crime that anyone else would be charged with who tried to arrange to lock someone in a cage for years. This ruse having succeeded, it would be the full crime of kidnapping.

This makes more sense to me than the alternate account, that a prosecutor who frames an innocent person is doing his or her job.

Surely you would even need to change the law to do this. A judge would simply be applying the kidnapping laws evenhandedly. It is kidnapping.

|9.29.09 @ 10:52AM|#

Since they care about convictions, hit them there. Remove any conviction where false evidence was used.

Pamela Kulig|9.29.09 @ 10:53AM|#

Growing up I was always told cheating wasn't ok and in fact cheaters were frowned upon. I guess I missed the part about as-long-as-there is-"good reason". Must have been home with a head cold. So, let me understand, if the ends justify the means, absolutely, cheat! And to think the Supreme Court has okayed that even a little is depressing.

Mr. Rogers, where are you?

|9.29.09 @ 11:25AM|#

Since they care about convictions, hit them there. Remove any conviction where false evidence was used.

TrickyVic: That will only affect - years down the road - some convictions where it's eventually demonstrated that the evidence was bogus. We cannot guarantee that this will happen reliably.

What will deter prosecutors in advance from using seemingly advantageous tactics to "succeed" in cases in general will be fear of personal consequences.

Michael Ejercito|9.29.09 @ 12:09PM|#

What will deter prosecutors in advance from using seemingly advantageous tactics to "succeed" in cases in general will be fear of personal consequences.

A few high profile killings, caught on film, would be a good place to start.

The death penalty takes too long.

Better a retaliatory killing.

Federal Dog|9.29.09 @ 4:32PM|#

"I'd say that, as manufacturing false evidence is not part of a prosecutor's legitimate role and duties, a prosecutor who does this is not acting in his or her role as a prosecutor when he or she does this"

Quite the contrary. He aids and abets the actual offender, who gets away scott free only because the prosecutor helps him do so?

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