Crime & Federalism

Prosecutors: Protecting Their Own

Do prosecutors ever see an example of prosecutorial misconduct they don't like?

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?

Pottawattamie County and Racial Justice

We've discussed the legal issues raised in Pottawattamie County extensively.  In a recent amicus brief, Mark Herrmann, on behalf of Black Cops Against Police Brutality, looks at the case from a different angle.  

In a blog posting about Pottawattamie County, Herrmann highlights the racial issues that we've ignored:

Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They sued the prosecutors for having violated their civil rights. The prosecutors contend that they have absolute immunity from liability.

It's a fantastic point, especially when one considers that 42 U.S.C Section 1983 is the codification of the Ku Klux Klan Act of 1871.  Section 1983 was enacted because white officials, acting under color of law, terrorized innocent black Americans.  Isn't that exactly what happened in Pottawattamie County?  

The Black Cops amicus brief

recounts some sad examples from American legal history of where white cops have manufactured false evidence against black defendants. For example, in Brown v. Mississippi, 297 U.S. 278 (1936), white officers were investigating the murder of a white man. Acting without probable cause, the officers seized a black man named Arthur Ellington from his home, strung him up to a tree, and whipped him. He refused to confess.

Herrmann's post on Pottawattamie County is available here.

Paul Clement to Argue Pottawattamie County v. McGhee?

In the Pottawattame County merits brief (here), Paul Clement is listed as counsel of record.  Is Clement doing the oral argument?  It will be much better for everyone if a former Solicitor General argues the case.

Incidentally, the merits brief disposes of the argument that adequate alternative remedies against prosecutorial misconduct exist:

Petitioners’ amici describe a host of other remedies to punish prosecutors for misconduct. See, e.g., Nat’l Ass’n of AUSAs Br. 7-16; see alsoImbler, 424 U.S. at 428-29. The most notable thing about amici’s lengthy catalog of supposed remedies, however, is that petitioners have not faced any of them. The highest court in the State of Iowa found that petitioners had violated the Constitution by suppressing exculpatory evidence. Harrington v.State, 659 N.W.2d 509, 521-25 (Iowa 2003). What consequences befell the prosecutors for that unconstitutional action? Petitioners did not face so much as a state-bar investigation, and they remain members in good standing of the Iowa bar in private practice in Council Bluffs. “Remedies” that go unused when serious, documented prosecutorial misconduct comes to light are little better, and perhaps worse, than no remedies at all. Unfortunately, the lack of meaningful response is typical.

Pottawattamie County v. McGhee: DOJ's Amicus Brief

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.

Pottawattamie County v. McGhee: Fabricating Evidence is All in a Day's Work

In Pottawattamie County v. McGhee, the Supreme Court will decide whether a prosecutor should be entitled to absolute immunity from suit for "obtaining, manufacturing, coercing and fabricating evidence before filing formal charges."  Absolute immunity from suit, in the context of civil rights cases means this: Even if the prosecutor fabricated evidence, he may not be sued.  

Pottawattamie County has not received the attention is deserves, primarily because it involves intricate questions of Section 1983 law.  In one Law.com article, however, we get to hear a prosecutor's take on Pottawattamie County.

One of the people who joined a slippery and dishonest amicus brief (which we discussed here), said:

"Every prosecutor makes decisions every day that somebody could just go ahead and file a lawsuit over. If there is no immunity…anyone with a filing fee can sue, whether their case is meritorious or not," said James Fox, chairman of the National District Attorneys Association.

This is one of those things we call lawyer's lies.  Fox's words are literally true; but in context, they are false.  Here's why: Pottawattamie County does not present a binanary choice of immunity-or-no-immunity.

In Section 1983 cases, a prosecutor may be entitled to two types of immunity - absolute, and qualified.  Under absolute immunity (the issue in Pottawattamie County), a prosecutor cannot be sued, even if her conduct was immoral, unethical, and unlawful.  However, a prosecutor who is not entitled to absolute immunity may still (always) assert qualified immunity.  

Under qualified immunity, a prosecutor will escape a lawsuit if she can show that she did not violate a clearly-established right.  Qualified immunity provides a lot of protection from lawsuits.  Qualified immunity would not protect a prosecutor who obtains, manufactures, coerces, and fabricates evidence.  Nor should it.  In even debately close cases, though, qualified immunity will protect a prosecutor who acted in good faith. 

Thus, even if the Supreme Court holds (as it should), that a prosecutor is not entitled to absolute immunity for manufacturing evidence, the prosecutor will still be entitled to qualified immunity from suit.  Thus, the good prosecutor fibbed.  He also revealed a heart of darkness.

The prosecutor continued:

"Clearly, from my perspective, absolute immunity is critical because, otherwise, why would anyone want to be a prosecutor if they're going to end up with personal liability for doing their job?," Fox said.

How is manufacturing and fabricating evidence part of a prosecutor's job duties?  Seriously: How is it?

How can any ethical prosecutor argue in favor of absolute immunity?  Here is what the Eighth Circuit Court of Appeals (no oasis of liberal activism) held:

We find immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not “distinctly prosecutorial function.” The district court was correct in denying qualified immunity to Hrvol and Richter for their acts before the filing of formal charges.

According to Prosecutor Fox, prosecutors accused of "obtaining, manufacturing, coercing and fabricating evidence" are just "doing their job."  Let's hope that the United States Supreme Court disagrees.

DOJ's Office of Professional Responsibility: Protecting Their Own

What are the odds that a federal prosecutor will be punished for prosecutorial misconduct?  The odds are about 50-to-1 that a prosecutor who is reported for prosecutorial misconduct will not receive even a slap on the wrist. Given that most prosecutorial misconduct goes unreported, the odds of getting away with misconduct are even better.  The numbers don't lie.     

When a federal prosecutor has allegedly committed prosecutorial misconduct, his conduct is reviewed by his colleagues.  Within DOJ is the Office of Professional Responsibility.  OPR's 2006 Annual Report (the most recent one available) is unfortunate reading.  Anyone who has suspected that DOJ does not take prosecutorial misconduct seriously will unfortunately have those suspicions confirmed.

First, the numbers:

In fiscal year 2006, OPR received 869 complaints and other letters and memoranda requesting assistance. OPR determined that 230 of the matters, or approximately 26%, warranted further review by OPR attorneys. OPR opened full investigations in eighty-four of those matters; the remaining 146, which are termed “inquiries,” were resolved with no findings of professional misconduct, based on further review, additional information from the complainants, responses from the subjects, or other information. When information developed in an inquiry indicated that further investigation was warranted, the matter was converted to a full investigation.

Of 869 complaints, less than 10% were even deemed worthy of an investigation.  Not bad, right?  Even if you're reported, the odds are clearly in your favor.  

 

Perhaps one will say that crank litigants make a lot of frivolous complaints. That would be wrong. Sixty-nine percent of investigated complaints were initiated by judges. Private lawyers and private litigants amounted for less than 3% of complaints leading to investigation.

Of the 84 cases worthy of investigation (58 of which were cases where a judge had already found prosecutorial misconduct), in only 18 cases were prosecutors disciplined.  According to OPR, there is a crisis within the federal judiciary.  

Federal judges are making frivolous allegations of prosecutorial misconduct.  After all, federal judges found prosecutorial misconduct in at least 58 cases.  Yet OPR only found prosecutorial misconduct in 18 of those 58 cases.  (58-18 = 40 federal judges filing frivolous complaints.)

The numbers don't add up.  DOJ's Office of Professional Responsibility investigated less than 10% of all reported cases of prosecutorial misconduct.  While federal judges found prosecutorial misconduct in 58 cases, DOJ only found prosecutorial misconduct in 18 of those 58 cases.  It's pretty clear that the Department of Justice cannot be trusted to investigate itself.

Self-policing is a failure.  In 2009 alone, there have been nearly a dozen high-profile cases of prosecutorial misconduct.  If OPR continues its mission, those prosecutors can sleep easy.  The odds are clearly on their side.

Whether the rest of the American public can sleep so easily knowing that a prosecutor can violate our rights with impunity, is another matter.

Pottawattamie County v. McGhee Amicus Brief: Prosecutors Spread Familiar Lies

[Editor: In Pottawattamie County v. McGhee, the most interesting Section 1983 case this Term, the Supreme Court will determine whether a prosecutor who manufactured evidence should be held liable for money damages.  An amicus brief, filed on behalf of state and federal prosecutors, is unpersuasive.  In three separate posts, we'll examine why.  Below is the first post.  Click her for the second; here for the third.]

In their amicus brief, Prosecutors argue that policy reasons caution against imposing liability.  The Brief states:

[T]he remedy sought by respondents in this case necessary to deter prosecutorial misconduct. To the contrary, prosecutors who engage in misconduct are already subject to discipline by a variety of institutions, including the prosecutors' offices themselves, state bar associations, and the judges before whom they appear. In the most extreme cases, prosecutors may face criminal sanctions for their misconduct.

The Brief, not surprisingly, does not provide any empirical support for its naked assertions.  What is most interesting, however, is that prosecutors made that same argument in an amicus brief a decade ago.

In Kalina v. Fletcher, 522 U.S. 188 (1997), a Washington state prosecutor, Lynne Kalina, under oath, misstated material facts in a probable cause hearing.  The National District Attorneys' Association filed an amicus brief on her behalf.  Here is what Kalina did: 

Kalina's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school [that had been burglarized, Kalina] stated that [the defendant] had "never been associated with the school in any manner and did not have permission to enter the school or to take any property." In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school. In fact, the employee did not identify respondent.

Lynne Kalina was never disciplined.  She was never prosecuted.  She is still a prosecutor in Washington state.  Perhaps Kalina is but an anecdote?  

Let's look at some actual data.  The California Commission on the Fair Administration of Justice compiled data on prosecutorial misconduct.  They had to do a lot of leg work, though:

Because District Attorney Offices typically do not keep statistics on the number of prosecutorial misconduct complaints filed against their office, we surveyed all California Court of Appeal decisions (published and unpublished) to determine the nature of prosecutorial misconduct problems and which jurisdictions were most affected. Appendix D contains a full report of those cases.

That the CCFAJ needed to do this work at all begs the question: If prosecutors care about prosecutorial misconduct, why don't they gather data?  It's almost as if no one cares enough to pay attention.  What did the data reveal?  Here's what:

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.

But wait: There's more!  The California State Bar hired a tough-on-prosecutorial-misconduct lawyer, Scott Drexel.  Drexel was fired for seeking to hold prosecutors accountable: 

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.

Actual facts reveal that the prosecutors' Pottawattamie County v. McGhee amicus brief is full of lies.  Prosecutors protect each other. They don't care about prosecutorial misconduct.  

Allowing prosecutors to be sued is good law, and good policy.  Prosecutors protect Lynne Kalinas; don't compile data on prosecutorial misconduct; and seek revenge for their "fallen brothers."

Pottawattamie County v. McGhee: Reversal Hurts

[Editor: In Pottawattamie County v. McGhee, the most interesting Section 1983 case this Term, the Supreme Court will determine whether a prosecutor who manufactured evidence should be held liable for money damages.  An amicus brief, filed on behalf of state and federal prosecutors, is unpersuasive.  In three separate posts, we'll examine why.  Below is the second post.  Click here for the first; here for the third.]

Another argument in the Brief is especially weak.  The Brief states: 

The trial process itself also functions as a significant check on prosecutorial misconduct, because the adversarial system ensures that a prosecutor’s allegations and conduct are contested. Reversal on appeal acts as an additional sanction, and an effective one. See James S. Liebman et al., A Broken System: Error Rates in Capital Cases (2000) (finding that sixteen percent of all capital cases are reversed on appeal due to prosecutorial misconduct).

Sixteen percent seems like a lot of prosecutorial misconduct, doesn't it?  That 16% is only part of all reversed cases.  Still, that's a lot of misconduct.  

Also consider that prosecutorial misconduct is usually harmless error.  One obtains a reversal in a capital case only by showing that the underlying case was weak.  In other words: If the 16% of prosecutors had not violated their legal and ethical duties, a conviction would not have been obtained.  

And what about the innocent person who sat in prison for years.  "Well, at least the prosecutor got his case reversed" isn't going to breath life into him.  Have you ever seen what happens to people who spend time in prison?  Have you seen how their age?  How their hair greys; their face wrinkles; their souls die?  Why shouldn't prosecutors be sued for ruining lives?

Moreover, how many of the prosecutors involved in those 16% of cases were punished?  Based on my first post, one would infer that close to none were punished.  I've had a case reversed on appeal.  I've never been sued.  I suspect that being sued would actually bother me more than a reversal.  Anyone care to disagree about how you'd feel?  Why should prosecutors feel any differently?  

In my next post, I'll present another pathetic argument.

Pottawattamie County v. McGhee Amicus Brief: Lawsuit Doublespeak

[Editor: In Pottawattamie County v. McGhee, the most interesting Section 1983 case this Term, the Supreme Court will determine whether a prosecutor who manufactured evidence should be held liable for money damages.  An amicus brief, filed on behalf of state and federal prosecutors, is unpersuasive.  In three separate posts, we'll examine why.  Below is the third post.  Click here for the second post; here for the third.]

Showing that they did not sleep through 1984, the Brief contains this doublespeak:

There is no evidence that the further prospect of civil liability is necessary to deter prosecutorial misconduct. To the contrary, evidence suggests that civil liability will not be an effective remedy for would-be plaintiffs. The most thorough study of constitutional tort claims found that "constitutional tort plaintiffs do significantly worse than non-civil rights litigants in every measurable way." Eisenberg & Schwab, supra, at 677. 

[The footnote reads]: "Overall, plaintiffs prevailed in only fourteen percent of constitutional claims, compared to fifty-nine percent in all other civil claims (excluding default judgments). Eisenberg & Schwab, supra, at 677."

Immunity should be denied because civil rights plaintiffs do bad enough already! Why let them sue, because, after all, it'll just give them false hope. How kind.  

Perhaps the prosecutors are arguing that most civil rights suits are frivolous. Why allow more frivolous suits. Assuming that's the argument, it's a false one.

Remember how civil rights lawsuits operate.  Even in cases where you can show a civil rights violation, you might lose.  Qualified immunity kills.

Under the Supreme Courts qualified immunity cases, it's not enough to show that your rights were violated.  You must show that your rights were violated at the time of the violation.  Ignorance of the law is an excuse - when police and prosecutors have been sued.  

Unlike every other area of tort law, in Section 1983 litigation, someone must lose a lawsuit before the law can be clearly established.  Read that over and over again, and you'll understand why these cases are blood-pressure elevating.  Current plaintiffs must lose so that future plaintiffs must win.

Thus, statistics comparing ordinary tort claims with Section 1983 claims have no merit.  The only valid comparison would require one to compare Section 1983 cases with other lawsuits that give bad actors a free pass - so long as the bad actors had to vision to be the first ones to violate the Constitution.