Prosecutors Should Feel the Chill

Sometimes someone says something so crisp that one can only feel awe and jealousy. Justice Sotomayor put me and everyone else to shame during oral arguments in Pottawattamie County v. McGhee.

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During the oral arguments in Pottawattamie, Chief Justice Roberts and Justices Alito and Breyer kept niggling over the alleged “chilling effect” that allowing a lawsuit to proceed against unethical prosecutors, would have on ethical prosecutors. Do the innocent really become fearful when the guilty are brought to justice?

A Department of Justice lawyer brought up the chilling effect argument: And if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.

Justice Sotomayor showed the wisdom that everyone else is lacking. She replied: 

A prosecutor is not going to flinch when he suspects evidence is perjured or fabricated? Do you really want to send a message ... that they should not merely flinch but stop if they have reason to believe that evidence is fabricated? 

Oral arg. at 21. In other words, yes, prosecutors should feel the chill. If there is reason to suspect that evidence has been fabricated, a prosecutor must not admit that evidence.  We’ve been inside the system too long. We’ve forgotten that prosecutors are supposed to be more than just lawyers. They’re supposed to be administrators of justice.

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In most cases, lawyers take the Pontius Pilate approach to the reliability of evidence: “Let the jury decide.”  Truth is question for the jury to answer. Sure, few admit perjured evidence. If evidence is just merely fuzzy, though, a zealous advocate should seek to admit it.  Let the jury decide.

Prosecutors have been behaving as mere advocates. Yet prosecutors have a special place in the courtroom. A prosecutor is supposed to seek justice. Sending stinky evidence hoping a jury will sniff it out is inconsistent with that role.

A prosecutor who has doubts about the reliability of evidence should feel a chill. The prosecutor should say, “This feels unreliable. It’s not my role to merely advocate before a jury. Rather, I am to exercise my independent judgment. I am not supposed to seek convictions – but to seek justice. It is not just to submit evidence that seems false to a jury.”

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Some had wondered if Justice Sotomayor – a former prosecutor herself – would unduly favor prosecutors. In a sense, she has. She’s reminded prosecutors about their role in the criminal justice system.

If you think evidence is unreliable, you should feel the chill. In fact, you should feel a lot more than a chill. You should feel revulsion. Don’t admit that evidence. You cannot wash your hands by sending unreliable evidence to a jury.

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While Justice Sotomayor is not wise because she is a Latina, she is indeed wise. She gave all of us a primer on prosecutorial ethics. Were we listening?

Comments

[Patrick]

Cheers for Justice Sotomayor.

A dishonest lawyer is just another dishonest lawyer, but a dishonest prosecutor is a dishonest government.

[Joe]

Thank goodness for some straight common sense! Jury members are not experts in law or forensic science. It isn't their job to make sure the evidence is up to snuff. It's their job to look at the evidence they've been given and make a judgment from it.

[David]

Good comment. I have a few to add. Why is it that only prosecutors seem to be held to task for admitting false and perjured testimony? Shouldn't all lawyers; prosecutors, criminal defense, civil, etc..., not allow this kind of testimony/evidence?

Also prosecutors are grieved all the time by defendants who are upset even to be prosecuted at all (no matter how strong or weak the case). If a defendant were also allowed to sue the prosecutor, lots of prosecutors with house payments, student loans, medical bills, and children in college may hold back from introducing proper and legit evidence just over the fear of a lawsuit (It ain't free to defend yourself even from a cause of action you know has no merit).

I have never heard of an attorney becoming wealthy be being a prosecutor. While allowing a prosecutor to be sued may help a single client, how does this help society as a whole?

[Mike]

If a defendant were also allowed to sue the prosecutor, lots of prosecutors with house payments, student loans, medical bills, and children in college may hold back from introducing proper and legit evidence just over the fear of a lawsuit

The prosecutor is not required to pay money of his pocket. This is true even if the prosecutor behaves unethically.

[kunkmiester]

I have never heard of an attorney becoming wealthy be being a prosecutor. While allowing a prosecutor to be sued may help a single client, how does this help society as a whole?,/i>

It tells the court, and the people, that the prosecutor is unreliable. This means he will be punished, or removed. The problem here is liability for unethical actions. How do you propose we make sure that the prosecutors and others behave ethically? Mike mentioned that for the most part, the government covers such expenses. Problem is, such settlements don't usually cause trouble in budgets, thus the gov doesn't have incentive to police itself--it's not their money that's getting paid out after all, it's yours.

The goal, as Sotomayor said, should be justice. Perhaps that means a guilty man gets off. An attitude that's more permissive of defense of self and property would take care of a lot of such people that you don't want out on the streets. As with most things, this is part of a tangled web, and the other cards must fall before this one will function properly. Ruling that they can be sued will make it function better.

I'm reminded of a missive frequently used by those trying to thrust invasions of privacy on the people: "If you have nothing to hide, why try to hide it?" Being in a public position is different than being a private citizen. If a prosecutor has his i's dotted and t's crossed, he has nothing to worry about. But if you're too crooked--well, who but a crooked man would oppose to exposure and removal of such people?

As a "right wing nutcase" I'm impressed with this statement. Most people who opposed her placement probably would not have expected this.

[Anthony Miles]

Thank god… a common sense mind…. can speak to power.
We all know how power can derail good men, more so……… in how it derails bad men; allowing many to exploit this protection as we have seen over the past few months.

Keep on track and note; Cameron Todd Willingham paid the ultimate price for the failure of our courts.

The reality of Mike Nifong and the boys in his scope of targeting a way to insure his re-election to a public office.

These facts are revealing the many abuses that are at hand; yes even our judges have proven to be unreliable as well, in Pennsylvania 2 judges have been accused of taking millions of dollars in kickbacks to enrich their own wealth by sending thousands of children to a private detention center without due process.

These events demand a reset to the idea that immunity has the desired effect, understand these all were good men at one point in time. It is hard to imagine anyone entering law school to become a crook. The process of loosing one’s way is a slow process like cooking a frog, it don’t take place over night.

We must understand the frustration of loosing your focus and seek to remove the goal to lock up the bad guys. The hope is that we will not place an innocent man in the executioners chair or remove most of his life and discover oh no I’m bad…..

The schools must reset the focus to seek to tell the truth and ask the court for mercy, understanding and stop the boloney of trickery and deception to out smart the court’s.

When we understand the goal is to make efforts to send the bad guy’s only to jail, we will be on track to unburden our crowded courts. If we miss a few bad guy’s so be it….

RIGHT… it is the better pill to swallow …..

AHM