Pottawattamie County v. McGhee: Reversal Hurts
DOJ's Office of Professional Responsibility: Protecting Their Own

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."