[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.