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Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.
Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.
No matter the outcome of this particular case, it is yet another example of why it is so important for states to enact reforms to ensure that prosecutors who abuse their powers are held accountable for their actions. The Justice Project’s policy review, Improving Prosecutorial Accountability outlines suggested reforms such as the establishment of prosecutorial review boards to sanction prosecutors who abuse their power within the criminal justice system. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions, which threatens our public safety and the integrity of our criminal justice system.
Implementation of disciplinary measures that create a culture of accountability will result in a more fair and accurate justice system. Such measures will also encourage prosecutors to better fulfill their multiple and critical roles of convicting the guilty, protecting the innocent and guarding the rights of the accused. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the egregious acts of prosecutorial misconduct that threaten our criminal justice system will only continue.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.
8 Comments
Thanks for this post; after watching totally unconstitutional methods used in the prosecution of the case of the U.S. against the Holy Land Foundation, I was appalled to see that our Rule of Law administrators forget the law when they feel protected from it within a system that winks when laws interfere with their biases.
Nice post, thanks for sharing it here. It would be a sad thing if lawyers only get held accountable for egregious behaviour in a Qualcomm/Broadcom setting (involving patent infringements) and not for soliciting abuse of innocent people and laundering coerced statements through the judicial system.
Thank you, John: excellent article.
I agree that professional sanctions are vital. But I also hope that the law suits are allowed to go through.
Sovereign immunity is one of the most abused aspects of American law, in this non-lawyer’s opinion. Immunity should be granted in only the narrowest circumstances and never when wilful misconduct is involved. When prosecutors step outside the law, they should face the full legal range of criminal and civil penalties.
I think that fear of lawsuit would provide a healthy check on reckless behavior. Disbarment is a bit abstract and probably easier for the psyche to ignore. Losing your house and cars is concrete enough to focus the attention.
Here’s some background information on this case, which was argued this morning starting at 10 am.
McGhee’s civil suit in federal court against the prosecutor and the Pottawatomie County DA’s office for violating his civil rights (42 USC 1983) was dismissed by the trial court on the ground that a prosecutor has absolute immunity from civil suit for any harm they cause, if they are performing their job at the time they commit the act that causes the harm. As John Terzano pointed out, the prosecutorial misconduct in this case was intentional and the defendant was innocent.
The purpose for this draconian rule has been explained as a necessary legal protection for a prosecutor so that his or her decision-making process will not be compromised by a fear of being sued. An underlying but seldom mentioned set of assumptions is:
(1) all prosecutors are honest, dedicated, and hard-working public servants;
(2) all defendants in criminal cases are guilty;
(3) all criminal-defense lawyers are devious characters ready, willing, and able to game the system to get their guilty clients off;
(4) unanimously convincing a jury by proof beyond a reasonable doubt is difficult in an easy case and close to impossible in a difficult case, especially against a good defense lawyer, and sometimes in the heat of battle a prosecutor seeking justice might overreach and cross the not-always-clear boundary that separates the permissible from the impermissible without intending to do so;
(5) an exception to the absolute immunity rule that would permit a defendant to sue a prosecutor, if he or she can produce enough evidence, which if assumed to be true, could convince a reasonable Monday-morning quarterback by a preponderance of the evidence (i.e., that it’s more likely so than not so) that the prosecutor intentionally crossed that boundary, is a dangerous exception to make because the fear of being sued would unduly chill a prosecutor’s zeal to win the toughest cases that must be won to keep law-abiding citizens safe; and
(6) Therefore, even though a rule barring all civil suits against prosecutors might occasionally deny a remedy to an innocent defendant harmed by a prosecutor’s intentional misconduct to secure a conviction, on balance this is a necessary and fair result. I call this the collateral-damage-is-a-regrettable-but-necessary-small-price-to-pay-for-justice principle.
Since the advent of DNA testing in the late 80s, we know that the wrongful conviction of innocent defendants happens far more often than we thought possible. We also know that prosecutorial misconduct is a significant factor that causes wrongful convictions. We can reasonably infer that prosecutorial misconduct resulting in wrongful convictions of innocent defendants is not limited to cases with biological evidence and this undermines the general assumption that intentional prosecutorial misconduct to convict an innocent defendant is a rare and acceptable result. The policy question is whether, in view of the shocking number of wrongful convictions of innocent defendants, the time has come to create an exception to the absolute immunity rule.
The Eighth Circuit reversed the district court’s order dismissing the plaintiff’s lawsuit and the US Supreme Court granted the prosecutor’s request to review the decision.
I’ve read the briefs submitted by both parties, but I wasn’t impressed by the familiar (to me) legal arguments because they didn’t adequately address the validity of the underlying assumptions and overarching policy considerations this case raises. I’ve presented them here because some of the justices will be thinking about them and might question the attorneys about them during oral argument. As policy considerations often drive supreme court decisions, I’ve presented them here for your edification and enjoyment. To complete the picture, you can go to the US Supreme Court website to read the briefs.
Here’s a link to a news report about the arguments today.
http://www.action3news.com/Global/story.asp?S=11442874
Thanks for the precis. This is pretty much what I thought was the rationale. The problem is that the argument is self-serving and can cut both ways. Take the “collateral-damage-is-a-regrettable-but-necessary-small-price-to-pay-for-justice principle” and “the toughest cases that must be won to keep law-abiding citizens safe” and consider them together. Sacrificing safety in a few of the toughest cases is “collateral damage” and, arguably, “a-regrettable-but-necessary-small-price-to-pay-for-justice”.
Sacrificing some safety for justice makes sense. Sacrificing justice for justice, as the prosecutorial establishment demands, makes rather less.
I wish that someone would also address Children’s Services. They can make accusations and have children taken without any accountability or even solid evidence that would stand up in court. Kids do not have proper representation and the System is overloaded to the point nobody cares, just get the paper work done and move on.
Meanwhile it leaves families in crises and affects the children for the rest of their lives. Child abuse happens, this is a given, but it is a concern when a social worker can go into someone’s home come to a “conclusion” with little or no evidence and that is all it takes to take a child. Furthermore, kids are being abused and even killed under the auspices of children’s Services. Nobody is held accountable and even the funding has little oversight.
I am in a delemma here as mostly wingnuts are taking up this issue, when in fact the lack of Constitutional rights with children’s Services truly IS a real issue. Child Protectives Services actually have more power to invade a home than the police do.
Believe me, I do not want to ally with wingnuts, but progressives are not even looking at what is happening. I am a liberal and having to ally with the Glen Becks of the world and to be honest, those people are scary. Plus these wingnuts are drawing in desperate families who are in grief and scared themselves creating more “tea partiers” who really should be allying with people who actually believe in Constitutioal Law. I think the wingnuts know the vulnerabilities of these families and are using their fear, anger and greif to draw them in.
As an activist for low income families, I see the taking of children all the time and I am terribly concerned. There is ethics collusion and special interests regularly happening within the courts, DSHS, their consultants and others. Little kids do not even merit an attorney, they only have volunteers whose say in court is give enormous power (CASA). In many case if not most cases, the CASA are merely rubber stamps for DSHS, they are more concerned about DHS legal liability than for the kid.
Extended families who have taken their relatives’ children in do not even have a say in court and authorities hide behind “confidentiality” to tell half truths, do shoddy investigative work, and then come to these faulty conclusions.
The issue of taking children from loving homes while disregarding Constitutional rights, is serious. It is not a “kook” thing here. right now the only voice that has any authority is a former prosecutor in Oregon and he is being hammered as a kook himself. He says the only true Constitutional legislators is Ron Paul and Dennis Kucinich. Guess who he alligned with in the last election? Ron Paul.
This ignoring the law is becoming terribly damaging to Americans and needs to be put in place. It is even down to affecting little kids with no voice, not even their own family’s voice is considered in the courts. It needs to be heard! Period!
My 2 cents
Cat In Seattle