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SG Briefs in Pending Cases:

SCOTUSBlog has posted links to briefs filed by the Office of the Solicitor General in pending cases before the Supreme Court.

Among the briefs that caught my eye is that in Pottawattamie County, Iowa v. McGhee, in which the Justice Department supports absolute immunity from Section 1983 suits for prosecutors who (as alleged in this case) deliberately procured false testimony during a criminal investigation and then knowingly introduced this testimony at trial to obtain a wrongful conviction. (More on the case here.) The brief argues that absolute immunity for prosecutors has deep roots in the common law and is necessary to prevent the threat of liability from altering how prosecutors do their jobs. I don't know enough about the history of this sort of thing to evaluate that aspect of the SG's argument. I also recognize that some applicable precedent may ultimately control the outcome of this case. Nonetheless, as a policy matter it seems incongruous to defend the position that prosecutors should have greater immunity for deliberate misconduct of this sort than do police officers, who only receive qualified immunity. What am I missing?

11-B/2O.B4:
Prosecutors are lawyers, while police officers are just the menial front-liners. Who would have thought that laws made by lawyers, vetted by lawyers and whose meaning and application is "nuanced" by lawyers might actually favor them in the end?
9.23.2009 8:38am
NaG (mail):
I was not aware that a government lawyer could ever receive protection from liability when she blatantly violates the rules of ethics.
9.23.2009 8:48am
Just Dropping By (mail):
I was not aware that a government lawyer could ever receive protection from liability when she blatantly violates the rules of ethics.

I had a case last year in which counsel for the FTC claimed they weren't subject to the Rules of Professional Conduct. I know there are also cases out there in which DoJ attorneys have argued that they are shielded by sovereign immunity from Rule 11 sanctions. (Courts have generally ruled against them on that, but if you parse the law carefully, they actually are correct under the current state of sovereign immunity law and the applicable statutes.)
9.23.2009 9:03am
ParatrooperJJ:
The DOJ does take the position that their lawyers are not bound by the individual states rules of conduct.
9.23.2009 9:09am
Old33 (mail):
Shorter DOJ:

Mike Nifong should have been immune from civil liability.
9.23.2009 9:29am
Kingsley Browne (mail):
I assume that the reason for absolute immunity is to insulate prosecutors from what would probably be an avalanche of frivolous lawsuits. We all would probably agree that in an ideal world prosecutors who, in fact, knowingly procured and introduced false testimony would be held civilly liable for it. However, the cost of a rule that would achieve that end would be that many prosecutors who did not knowingly procure false testimony (either because they did not know that the testimony at issue was false or because the testimony at issue was not actually false) would be subject to suit by prisoners who have lots of time on their hands. The lawsuits would generally turn on the truth of the allegedly false testimony and the state of mind of the prosecutor, which would probably typically require extensive discovery, including depositions of the prosecutors. It is predictable that there would be a substantial number of cases in which prosecutors are inappropriately held liable.

The SG's claim that providing prosecutors with only qualified immunity would seriously affect how they do their jobs seems quite plausible to me. Prosecutors often have to rely on testimony of witnesses who are shady in some respect or who have biases that would give them an incentive to lie. Prosecutors often call such witnesses, believing them to be telling the truth but recognizing that the jury in the criminal case might not believe them. If a prosecutor knew that he faced personal liability if a subsequent jury decides (by a preponderance of the evidence) that the testimony is false and that the prosecutor knew about it, it is predictable that prosecutors would be afraid to put on witnesses who actually should be put on.

It strikes me that in most cases, the situation of police is somewhat different. I'm not sure what kinds of situations most commonly result in lawsuits against police, but I assume that two common ones are that police lacked probable cause to search or to arrest and claims of excessive force. The former issues are going to be litigated anyway in suppression hearings and are going to be resolved on the basis of objective circumstances, rather than the officer's subjective state of mind. As for excessive-force claims, it isn't clear that the threat of such claims will have much effect on how police do their jobs other than to give police an incentive not to use a level of force that might be deemed excessive. I don't know enough about day-to-day police work to know how much of a problem this is, but it seems likely that it would be less of a problem on a routine basis than the problem facing prosecutors.
9.23.2009 9:51am
PersonFromPorlock:
I wonder... would a law that disqualifies any state official who pleads immunity from further employment by the state have any chance of being held valid?
9.23.2009 9:51am
PersonFromPorlock:
Kingsley Browne: The problem with that line of reasoning is that it supposes the convenience of prosecutors is the summum bonum of the justice system.
9.23.2009 9:57am
Anderson (mail):
The SG's claim that providing prosecutors with only qualified immunity would seriously affect how they do their jobs seems quite plausible to me.

Indeed, it's my hope that it would.

Question: What sanction *should* be available against "prosecutors who ... deliberately procured false testimony during a criminal investigation and then knowingly introduced this testimony at trial to obtain a wrongful conviction"?

Anything? Nothing? What?

In an "ideal society," such violators of the public trust wouldn't be open to civil suits; they would be lowered by helicopter onto the spire of the Chrysler Building.
9.23.2009 9:57am
martinned (mail) (www):

Question: What sanction *should* be available against "prosecutors who ... deliberately procured false testimony during a criminal investigation and then knowingly introduced this testimony at trial to obtain a wrongful conviction"?

How about disbarment? That creates no incentive for frivolous suits, but it still punishes those who are obviously guilty.
9.23.2009 10:00am
Anderson (mail):
Disbarment is not a reliable solution, IMHO.

Bar discipline proceedings are conducted, at least in my state (Mississippi), under a shroud of secrecy that's highly conducive to protecting members in good standing of the Good Ol' Boy Network, which (despite its name) exists in some fashion in every state.

The airing and rectification of our recent scandals (Scruggs, DeLaughter) have owed zilch to the Bar and everything to the feds.

One might as well argue that a judge who accepts bribes ought to have absolute immunity, because absolute immunity has deep roots in the common law, and because frivolous lawsuits would impeded the judicial function.
9.23.2009 10:32am
Sallie:

In an "ideal society," such violators of the public trust wouldn't be open to civil suits; they would be lowered by helicopter onto the spire of the Chrysler Building.

I can think of many a lawyer who should have this fate...
9.23.2009 10:33am
martinned (mail) (www):

Bar discipline proceedings are conducted, at least in my state (Mississippi), under a shroud of secrecy that's highly conducive to protecting members in good standing of the Good Ol' Boy Network, which (despite its name) exists in some fashion in every state.

Maybe that should be fixed anyway, but point taken.

How about a criminal prosecution?
9.23.2009 11:02am
Ugh (mail):

as a policy matter it seems incongruous to defend the position that prosecutors should have greater immunity for deliberate misconduct of this sort than do police officers, who only receive qualified immunity. What am I missing?


Uh, that police officers have guns and no adversarial proceedings?
9.23.2009 11:03am
Lior:
Since it's well-documented that doctors have significantly changed the way they practice in response to lawsuits, I would assume the DOJ believes that medical doctors should enjoy absolute immunity from suits alleging professional misconduct?
9.23.2009 11:17am
byomtov (mail):
Disbarment is woefully inadequate.

If I grab someone off the street and lock them up in my basement I've committed a very serious felony.

This is effectively what a prosecutor who behaved as described has done.
9.23.2009 11:30am
Lior:
Someone here can correct me if I'm wrong, but my guess is that "procuring false testimony" to be given in federal court is a federal crime. Assuming that private citizens would be prosecuted for violating this law, shouldn't professional lawyers (especially government lawyers wielding the awesome power of prosecution) be held to a higher standard, not a lower one?
9.23.2009 11:34am
Nick P.:
How about disbarment? That creates no incentive for frivolous suits, but it still punishes those who are obviously guilty.

What's wrong with a very long prison sentence? Ideally, they'd be required to serve the sentence of the person who was wrongfully convicted.
9.23.2009 11:39am
Grant Gould (mail):
Lior:

Since it's well-documented that doctors have significantly changed the way they practice in response to lawsuits, I would assume the DOJ believes that medical doctors should enjoy absolute immunity

For that matter, how about vandals? I bet vandals change how they practice in response to lawsuits. Why not immunity for them as well?
9.23.2009 11:50am
martinned (mail) (www):

What's wrong with a very long prison sentence? Ideally, they'd be required to serve the sentence of the person who was wrongfully convicted.

For the record, when I suggested disbarment I assumed that a criminal prosecution was impossible for some reason.
9.23.2009 12:03pm
JRL:
I think that 11-B/2O.B4 nailed it. Lawyers naturally empathize with their own kind. They have walked in their shoes and dealt with the same pressures and problems. So lawyers are more likely to support immunity for other lawyers than for other groups.
9.23.2009 12:35pm
Mike& (mail):
One of the many interesting issues in Pottawattamie County: Police who manufacture and fabricate evidence are entitled only to qualified immunity. Why give prosecutors absolute immunity for the same conduct? Are prosecutors a privileged class?
9.23.2009 1:28pm
Mike& (mail):
Another interesting facet. DOJ (and in an amicus brief, the National District Attorneys Association) makes a lot of hay over the self-regulatory nature of prosecutors. They claim, "Hey, unethical prosecutors get punished by us!"

That's a total joke; an outright lie, in fact. When you compare the number of findings of prosecutor misconduct with actual discipline...You see that an unethical prosecutor has a less than 10% chance of receiving meaningful punishment. In the OPR report I had analyzed, judges had found prosecutorial misconduct in nearly 40 cases. DOJ cleared all but a hand full.

So we have a bunch of judges falsely accusing prosecutors of misconduct? Or are prosecutors more concerned with protecting their own than with "justice"?
9.23.2009 1:34pm
Bored Lawyer:
Let's cut through the clutter:

1. Immunity of any kind is only from private civil suit, not criminal prosecution. That always remains on the table.

2. The point of immunity is not to protect the wrongdoers but to protect the profession in general from frivolous or weak suits.

Think of judicial immunity. No one says that a judge who, say, takes a bribe to throw a case, should be let off free. But he is immune from private civil liability because otherwise there would be an avalanche of claims by disgruntled litigants claiming the judge in their case was crooked.

3. Prosecutors go after criminals and suspected criminals -- that is their job. If you permit suits of this kind, then you will have a large group of jailhouse inmates -- with nothing to do with their spare time -- as potential plaintiffs. As it is, litigation by inmates is rampant. It would increase exponentially if you permitted inmates to sue their prosecutors.

My impression is that such misconduct by proecutors is rare. Balanced against the flood of lawsuits, I think it is appropriate. For the truly egregious case, there is always criminal prosecution -- at the hands of the feds, if not the State AG.
9.23.2009 1:39pm
PersonFromPorlock:
Bored Lawyer:

For the truly egregious case, there is always criminal prosecution -- at the hands of the feds, if not the State AG.

À la Nifong?
9.23.2009 1:57pm
Mike& (mail):
1. Immunity of any kind is only from private civil suit, not criminal prosecution. That always remains on the table.


How often is that used? How often do prosecutors even face professional misconduct proceedings? I provided data in a link, above. If prosecutors aren't even facing State Bar discipline or DOJ sanction...Do you really think they'll be criminally prosecuted?

2. The point of immunity is not to protect the wrongdoers but to protect the profession in general from frivolous or weak suits.

Even without absolute immunity, prosecutors will still be entitled to qualified immunity. QI is a huge protection.

If you permit suits of this kind, then you will have a large group of jailhouse inmates -- with nothing to do with their spare time -- as potential plaintiffs. As it is, litigation by inmates is rampant. It would increase exponentially if you permitted inmates to sue their prosecutors.

See above; qualified immunity. In in light of Heck v. Humphrey, your concern is moot.

My impression is that such misconduct by proecutors is rare.

In 2009 alone, there have been nearly a dozen high-profile instances of prosecutorial misconduct.

Some of us (or at least one of us) is keeping track of this stuff. ;-)
9.23.2009 1:57pm
Bored Lawyer:

QI is a huge protection.


No it's not, not in this context. All QI means is that it must be well-established that the claimed violation is contrary to the Constitution. That may help in some cases (e.g. 4th Amendment cases) where the law may be murky, so a police could legitimately claim they were following the law as best they understood it at the time.

Here, however, the legal principle is clear. Prosecutors cannot manufacture evidence against criminal defendants. The legal theory of such a case is not subject to serious dispute. It's the factual basis where the frivolous litigation arises. I don't see how QI helps in that situation.


In in light of Heck v. Humphrey, your concern is moot.


Yes and no. There are plenty of prosecutions of inmates in jail for prior offenses. But your point is taken -- if you are convicted, you are barred from suit unless you first get the conviction overturned somehow.



In 2009 alone, there have been nearly a dozen high-profile instances of prosecutorial misconduct.


Out of how many prosecutions? Let's say, conservatively, 100,000. 12 out of 100,000 is rare.
9.23.2009 2:14pm
Bored Lawyer:
Just thinking out loud, but maybe a better solution than immunity is a heightened pleading standard -- along the lines of the PSLRA or Rule 9 of the Fed.R.Civ.P. Something to screen the BS cases (the prosecutor/judge is crook) from the rare ones where there is a real reason to believe that misconduct has occurred.
9.23.2009 2:17pm
Mike& (mail):
Out of how many prosecutions? Let's say, conservatively, 100,000. 12 out of 100,000 is rare.


Dude, I don't have time to keep track of all of the instances of misconduct. I wish it were my full-time job. Really, I do. Those are only the instances that I was able to find.

Therein lies the problem. We don't know have much data showing how bad of a problem it is. We do know, however, that DOJ is and State Bar Associations are incredibly lax when it comes to disciplining prosecutors. The data was provided in supporting links, above.

Here, however, the legal principle is clear. Prosecutors cannot manufacture evidence against criminal defendants.

Right. Prosecutors who manufacture evidence should not be entitled to absolute immunity. Why do you disagree with that? Why should prosecutors get a free pass for throwing an innocent many into prison? Really...Why?

Prosecutorial misconduct is a creation of common law. Thus, such normative questions are properly discussed. Why should a prosecutor who knowingly violates clearly established law receive absolute immunity from suit?

What is your normative argument is allowing prosecutors to be part of a privilege class of people who cannot be sued - even when they knowingly violated the law?

Incidentally, police who manufacture evidence are only entitled to qualified immunity. Why should a prosecutor - who is learned in the law - get more protection than a humble beat cop?
9.23.2009 2:30pm
Prosecutorial Indiscretion:
Even if prosecutors are immune civilly, my understanding is that a criminal civil rights prosecution would still work - and since Civil Rights is supposed to be getting all those new lawyers, that means there should be plenty of eyes on prosecutors who step that far out of line.
9.23.2009 2:57pm
Bored Lawyer:

Dude, I don't have time to keep track of all of the instances of misconduct. I wish it were my full-time job. Really, I do. Those are only the instances that I was able to find


And that proves my point that they are rare.

Really, apart from civil liability, the accused have a very real incentive to uncover manufactured evidence: to get off. If this is all there is, then, on balance the harm of retaining such immunity is not great.


Prosecutorial misconduct is a creation of common law. Thus, such normative questions are properly discussed. Why should a prosecutor who knowingly violates clearly established law receive absolute immunity from suit?


Did you bother reading my post? The reason is that because for every valid suit you will have 10,000 baseless ones clogging the courts and distracting prosecutors from their jobs.

The difference between prosecutors and cops is harder to justify, although the volume of prosecutions handled by a typical prosecutor probably is two orders of magnitude greater than the volume handled by the typical cop.

BTW, are you also for abolishing judicial immunity? If not, what is the difference?
9.23.2009 2:58pm
Nunzio:
I thought the absolute prosecutorial immunity started when there was nothing resembling what we would call a police department in existence.

Absolute prosecutorial immunity, like absolute judicial immunity, is just old.

Unfortunatley for the police, since they are relative late-comers to the game, they didn't get the absolute immunity.
9.23.2009 3:29pm
Mike& (mail):
Did you bother reading my post? The reason is that because for every valid suit you will have 10,000 baseless ones clogging the courts and distracting prosecutors from their jobs.

You seem to have very strong opinions for someone not learned in this area of law. Why is that?

Right now, even with prosecutorial immunity, prisoners can sue anyone they want. Those cases will be all be dismissed whether there is absolute immunity or not. So, by your logic, prosecutors should already be too distracted with frivolous lawsuits. Yet they are not.


Those cases are always dismissed due to Heck v. Humphrey's favorable termination rule. If you're in prison you can't file a valid sue the prosecutor who put you there. Go read Heck v. Humphrey however many times it takes you to comprehend this.

Thus, prosecutors do not need absolute immunity to protect them from frivolous suits. Heck v. Humphrey already does this.

Moreover, by your logic, right now there are 10,000 cases against police officers - who, after all, are only entitled to qualified immunity. Those cases all get dismissed. Again, once again, for the final time, read Heck v. Humphrey and its progeny.

It is truly a straw man to argue that prosecutors are going to be overwhelmed with frivolous lawsuits. They aren't now, and they won't be if they lose absolute immunity for those (according to you, rare) cases where they fabricate evidence, thus putting an innocent man into prison.

Really, apart from civil liability, the accused have a very real incentive to uncover manufactured evidence: to get off

Oh boy. DOJ has gotten into huge trouble because they have been withholding exculpatory evidence. If the prosecutors have the evidence, how are you supposed to get it?

Go read up on the Zhenli Ye Gon case. Read about the Ted Stevens prosecution. In both cases, prosecutors hid evidence. Fortunately for those defendants, they had high-powered defense lawyers. Still, DOJ was so unethical that they almost did a snow job on Williams &Connolly. The misconduct wasn't even discovered until post trial.

The average criminal defendant does not have Brendan Sullivan and an army of W&C associates filing motions and looking for evidence. If every defense lawyer were Brendan Sullivan, then you might have a point. Yet we know Sullivan's name precisely because he's so unique.

You really need to do some serious leg work before your next comment. Start reading some cases.
9.23.2009 3:31pm
Bored Lawyer:
Mike&, let me explain some facts:

1. It is true that anyone can sue anyone for anything. No legal doctrine can stop the filing of a suit -- although Rule 11 can deter it somewhat.

2. As any civil litigator knows, the great bulk of the burden of litigation is discovery, not the pleadings stage. I'd rather have twenty cases that can be disposed of on a motion to dismiss than 1 case taken through discovery. So your argument proves little. If Complaints are routinely dismissed at the pleadings stage (either because of immunity or HEck v. Humphreys or some other doctrine) then those involved quickly get the message. Not all, but most.

3. I read and undestand Heck v. Humphreys. In my prior job, I defended several malicious prosecution cases on the common law rule on which it is based.

I agree that that rule would screen out many cases. But not all, not by a long shot.

4. You correctly point out that it is hard to prove a case of prosecutorial misconduct. OTOH it is very easy to make that allegation. Those who have high powered lawyers already have a strong incentive to uncover the wrongdoing, and they have the means. Most don't.

So how, pray tell, are the victims of this misconduct (other than the well-heeled) going to prove their case?

Answer: massive civil discovery. That is where the burden is, as I said above.

5. The critical point in all of this is that immunity is meant to protect the innocent, not the guilty. A prosecutor who fabricates evidence should be made to suffer, I agree. The vast majority don't.

The issue is how does one balance the burdens of forcing the vast majority to submit to the burdens of civil litigation vs. the benefits of redress for the rare victims of prosecutorial misconduct. I remain unconvinced that the balance favors abandoning the common law rule of immunity.

Citing individual examples of egregious prosecutorial misconduct does not address the relevant inquiry.

6. No one has yet commented on my suggestion on adopting a PSLRA-like heightened pleading requirement. Nor has anyone taken a position on retaining/abolishing judicial immunity.
9.23.2009 4:40pm
Anderson (mail):
Ideally, they'd be required to serve the sentence of the person who was wrongfully convicted.

I like it!
9.23.2009 5:22pm
Bored Lawyer:
Actually, a good remedy for misconduct would be for the trial judge to make an announcement as follows:


Ladies and gentlement of the jury, I want to bring to your attention, that the prosecutor, Mr. X, was last month found by a judicial panel of this court to have fabricated evidence in a criminal case. That does not necessarily mean that he did so again in this case, but you are entitled to know that in weighing the evidence and the credibility of the prosecution's case.


That would end his career mighty quickly.
9.23.2009 5:43pm
Mike& (mail):
2. As any civil litigator knows, the great bulk of the burden of litigation is discovery, not the pleadings stage.


Now I get it. You're a BigLaw guy, aren't you? Or you at least do commercial lit. Sorry for being so flip. You just seem to think that Section 1983 law is like other civil litigation. It's not.

In Section 1983 cases, there isn't much discovery. I am working on an Opp to an MSJ. The entire case file is a banker's box. That is unusually large amount of discovery. Section 1983 litigation is not document intensive.

Assuming a lawsuit against a prosecutor got past the pleading phase (highly, highly, highly unlikely), there'd be a deposition of the prosecutor. There'd also be a subpoena for the prosecutor's case file (witness interviews, plea agreements, etc.) A prosecutor's case file in most criminal cases is 100 pages or so. Just photocopy it.

There's just not that much too these cases - at least insofar as documents are concerned. The real fight is over qualified immunity.

4. You correctly point out that it is hard to prove a case of prosecutorial misconduct. OTOH it is very easy to make that allegation.

Sure, you can make an allegation. Even today, a prisoner can. You're not going to get past a 12(b)(6) motion, though. Heck will prevent that. Moreover, even if Heck didn't apply (thought it almost always will), you must still get past qualified immunity.

Section 1983 is bizarro civil litigation. You know about the interlocutory appeals, I presume? In Section 1983 cases, a denial of immunity is an appealable order. Here's a treatise discussing the issue.

So there are already a lot of judge-made rules that make it very hard for any of these supposed 10,000 frivolous lawsuits from annoying anyone other than a helpless federal law clerk.

Even litigating a non-frivolous Section 1983 lawsuit is hard as heck.

6. No one has yet commented on my suggestion on adopting a PSLRA-like heightened pleading requirement. Nor has anyone taken a position on retaining/abolishing judicial immunity.


There is already a de facto heightened pleading requirement. You have to prove that Heck doesn't apply. To defeat a 12(b)(6), you have to argue that the law was clearly established. In the vast majority of cases, the lawsuit is not getting past Rule 12.

A Section 10983 case is not like other cases. In most cases, you allege negligence. Rarely will a defendant be able to escape a negligence claim on the pleadings. With Section 1983 law, though, it's not enough to allege negligent or reckless conduct. Instead, you must establish that the state actor violated clearly-established law. That's tough stuff.

Moreover, most challenged prosecutorial conduct will involve courtroom conduct. Prosecutors will still have immunity for courtroom actions. Even police who lie in court have a litigation privilege - the witness privilege.

No one (except in extremely limited cases) can be sued for what they do in court. This includes judges, prosecutors, cops, and civilians who serve as witnesses.

In Pottawattime County, at issue is the manufacture and fabrication of evidence that occurred before trial. At the time the prosecutors fabricated evidence, they were doing the same job as a police investigator.

A cop who manufactures evidence before trial only gets qualified immunity. The dockets are not clogged with frivolous manufacture-of-evidence cases against police, though. The dockets will not get clogged with frivolous cases against prosecutors who are sued for pre-trial conduct.

Besides, as I noted in my post on prosecutorial immunity, as it stands, prosecutors can already be sued for pre-trial conduct. Pottawatomie County would not expand that rule.
9.23.2009 6:13pm
Jack Dempsey (mail):
Bored Lawyer, You haven't any experience in or knowledge of Illinois, have you?
9.23.2009 8:28pm
judgebuster (mail):
The SG all but ignores Kalina v. Fletcher:

Kalina v. Fletcher

It is the role of the actor that determines the degree of immunity and not the title of the office.

The prosecutors were acting in the role of investigators, and not prosecutors, when they procured the false evidence.

Based on that fact, there should be only limited immunity in this case. If the USSC rules that way, the prosecutors lose.

Anyone who thinks corrupt prosecutors are few in number are either lying of hopelessly naive. Same goes for judges.
9.23.2009 10:06pm
judgebuster (mail):
Mike&,

Don't forget the Edwin Wilson case. Two of the federal proscutors who framed him were later appointed as U.S. District Court Judges. They should be in prison.

Only overwhelming public outrage will result in prosecutors who commit 241/242 crimes will be dissiplined, never mind prosecuted.

BTW, what has happened to these two prosecutors? Have they been subject to bar disciplinary action? I doubt it.
9.23.2009 10:19pm
fj:

In the OPR report I had analyzed, judges had found prosecutorial misconduct in nearly 40 cases. DOJ cleared all but a hand full.

It's worth noting that there's a difference between "prosecutorial misconduct" and "wildly unethical behavior for which you should be impaled on the Chrysler Building." Making a passing reference to God in a closing argument is prosecutorial misconduct. I'm not really sure a prosecutor who does so ought to lose her job or be publicly executed.
9.24.2009 1:36pm
Soronel Haetir (mail):
If the criminal remedies were actually enforced I might find the immunity argument more appealing. But even in the cases of absolute disregard for truth, such as Nifong the system metes out woefully inadequate punishment. Whether this is due to lawyers being unable to imagine a worse fate than being disbarred or some other force, the fact of it remains.

When you have cases like Stevens, Skilling, Conrad Black and so on where serious lapses appear common how are we to trust that the far more numerous cases that go unnoticed are not even more problematic?

A case that has come up a couple times on SL&P is about just such a case, an ordinary drug conspiracy case in which one of the informants was caught lying. Even worse after a stipulation as to the untruthfulness of that witness' testimony the prosecutor highlighted those statements during closing. It is almost enough to make me wonder if an actual trial can go forward without misconduct of some sort.
9.25.2009 8:49am
Mike& (mail):
It's worth noting that there's a difference between "prosecutorial misconduct" and "wildly unethical behavior for which you should be impaled on the Chrysler Building." Making a passing reference to God in a closing argument is prosecutorial misconduct. I'm not really sure a prosecutor who does so ought to lose her job or be publicly executed.

It's worth noting that federal judges rarely report prosecutors for misconduct. I would bet you $1,000 that fewer than 10% of the reported misconduct involved such trivialities. And we both know you would not take that bet.

That said, why won't DOJ open up its records? All investigations are kept secret. We're thus supposed to just take DOJ at its word.

Why keep everything confidential? Why not release the case files?

Hmm....
9.25.2009 4:44pm

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