The Supreme Court will soon hear oral arguments in Pottawattamie County v. McGhee. In McGhee, the issue is this: Should prosecutors who fabricate evidence, leading to a wrongful conviction, be absolutely immune from suit? Absolute immunity from suit means that a wrongfully convicted person may not sue - at all or under any circumstances.
Recently the Department of Justice filed an amicus brief (via Jonathan Adler) arguing that prosecutors who fabricate evidence should be entitled to absolute immunity. Let's examine DOJ's arguments:
If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involv ing a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors.
How many prosecutors ever face criminal prosecution for misconduct? The Department of Justice would clearly have this data. Other than Mike Nifong, has any prosecutor in recent memory been prosecuted for misconduct? What about "professional disciplinary proceedings"?
At least unethical prosecutors, according to DOJ, get disbarred or fired. That, too, is a false claim.
In a lengthy post, I showed that the Department of Justice does not punish prosecutorial misconduct. Unethical state prosecutors similarity escape punishment.
The California Commission on the Fair Administration of Justice compiled data on prosecutorial misconduct. They had to do a lot of leg work, though, as no District Attorneys' offices do not monitor prosecutorial misconduct. How can you punish misconduct if you don't keep track of it?
CCFAJ's report was revealing, and disappointing:
Research identified 347 of the prosecutors and 30 of them were found to have committed misconduct more than once. Two of them actually did it three times. So what happened to them? In only one case was there a sanction - the prosecutor was disciplined by the State Bar.
More here. Recognizing that prosecutorial misconduct was a problem, a California State Bar lawyer, Scott Drexel, tried punishing prosecutors. How did police and prosecutors respond? They successfully lobbied to have the lawyer fired:
Drexel also raised hackles in the law enforcement community by going after several well-known prosecutors for misconduct, including Santa Clara County prosecutor Benjamin Field. Accused of offenses including withholding exculpatory evidence, which Field's supporters were quick to point out involved cases more than a decade old, Field ended up having his license suspended for four years.
Instead of being given an award from ethical prosecutors, Drexel "raised hackles." Prosecutors, like every other organized guild, seeks self-protection and self-promotion. Prosecutors are not interested in uprooting unethical prosecutors from their offices.
The Department of Justice itself does not take prosecutorial misconduct seriously. State Bar Associations do not punish prosecutorial misconduct. Lawyers who fight misconduct lose their jobs.
Thus, the only remedy available to a wrongfully-convicted citizen is a civil rights lawsuit. The Department of Justice's assertions in its amicus brief ignore the reality of prosecutorial misconduct. Accordingly, its reasoning must be rejected, and absolute immunity must be denied.