Is It Time To Do Away With Prosecutorial Immunity?

That prosecutors are immune from civil lawsuits, even when they deliberately engage in indefensible misconduct, has always struck me as a seriously misguided policy. Police officers who lie to prosecutors or withhold evidence to push a bad prosecution along can be personally sued, and rightfully so. But when prosecutors encourage witnesses to lie, withhold evidence they are constitutionally obligated to turn over, deceive judges and juries, and fabricate evidence, their victims ordinarily cannot recover a dime. Given the tremendous authority and responsibility bestowed on prosecutors as state actors, it is absurd that this class of civil servants who willfully and intentionally abuse their positions cannot be held accountable to the people they have harmed, while their colleagues in law enforcement are given no such shelter.

Chief Judge Alex Kozinksi

The reality of our criminal justice system is that many line prosecutors are under political or office pressure to obtain convictions. The focus on winning the case may cause people to lose sight of their duty to do justice, and the temptations that appear along way can be tough to turn down.  

A prime problem area involves Brady material. I have discussed this at length in posts on the blog page at Lumer & Neville (here, for example), but it is a critical area in terms of both criminal defense and civil rights, and worth revisiting. In sum, the term refers to the Supreme Court ruling in Brady v. Maryland that prosecutors were constitutionally required to promptly turn over any evidence in its possession that was favorable to the accused.  This rule was predicated on the importance of due process and the notion that the fairness of the criminal proceedings is more important than whether a conviction is obtained. Promptly turning over Brady material promptly is important because it provides some assurance that the guilty party had a full and fair opportunity to defend himself (and was found guilty because he was guilty).

Unfortunately, as Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, recently wrote, "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."  As Kozinski correctly observed, the lack of concern with constitutional mandates and protections by the prosecutor in the case before him "signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care." This is undeniably correct, as is Kozinski's observation that when courts forgive prosecutors for not turning over Brady material when there is other evidence of guilt (i.e., harmless error), they "send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way . . ."

This is not suggest that prosecutors as a whole play fast and loose with their evidence or are unconcerned with their constitutional obligations. There are plenty who are dedicated professionals who understand and respect that they are sworn to do justice, even when that means losing a case they desperately want to win. But there are plenty more who are sliding down that slippery slope; the downward descent that begins with pretending not to know that your arresting officer is lying about something important, or kidding yourself that a piece of harmful evidence isn't really exculpatory so you won't have to turn it over, and ends with people sitting in jail for crimes they did not commit.

It is important that we have faith in our prosecutors' honesty and honor. Holding those that lack these traits responsible for their deliberate malfeasance is a logical, necessary, and fair.

Coming soon, a discussion of some high profile acts of prosecutorial misconduct, and an upcoming challenge to absolute immunity.