Home / General / Accountability? For the Powerful? This Is Not Supposed to Happen!

Accountability? For the Powerful? This Is Not Supposed to Happen!


It says something about the general failure to hold people with power in the criminal justice system accountable that a 10-day prison sentence for a former prosecutor who willfully deprived an innocent man of his liberty for a quarter century feels like a victory rather than an insult.

And as Atrios notes, the fact that the conviction of an innocent man means that a guilty person remains at large sort of gives away the law-and-order show. The key, I think, is something that one of the Harry Callahans George W. Bush appointed to the Supreme Court said at oral argument as a prelude to another case in which a bare Republican majority of the Court upholding total immunity for prosecutors who act illegally to put innocent people in prison:

The Court recently heard oral arguments in a case called Pottawattamie County v. McGhee, which involved a case in which a prosecutor procured false testimony and then introduced it at trial. The case was settled before the Court issued a ruling, but during oral argument Chief Justice John Roberts twice fretted about the alleged “chilling effect” on prosecutors of not maintaining absolute immunity for prosecutorial actions at trial.

Yes, removing total immunity from prosecutors will have a “chilling effect” on their willingness to, say, willfully introduce false evidence. Uh, good? But being a “law & order” type means seeing unchecked prosecutorial and police power as a positive end in itself.

If you haven’t already, you should really read this Texas Monthly article on the Morton case, which is amazing and chilling reporting.

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  • The story is absolutely horrific. I couldn’t sleep after reading it. And, as you say, the side effect is that the real murderer gets away while the police and the prosecutors are buffing up their false convictions.

    • aimai,
      That line, “Round-up the usual suspects!”, wasn’t funny in the movie “Casablanca,” and it’s still not funny.

      AG’s care more about their personal win-loss records, than justice.

    • Linnaeus

      It’s a riveting story. This is Pulitzer material.

  • Rarely Posts

    Obviously, this former prosecutor’s conduct was reprehensible, and it’s good he’s being held accountable.

    On immunity for prosecutors/government lawyers: I don’t know precisely where I stand on this issue. Indeed, I’m not sure how it actually works: for example, here we see a prosecutor being imprisoned for his conduct. In other instances, we see judges issue sanctions against prosecutors for their conduct. So, it’s not as though we have absolute immunity even now.

    Personally, I’d like to see the courts and legal bars start holding all lawyers to higher levels of accountability. As a practicing, government attorney, I’m constantly shocked at what does and does not lead to bar sanctions. If we’re going to have legal bar associations, it strikes me that they would be the appropriate place to address unethical conduct.

    Two reasons to support immunity in the context of prosecution/executive branch lawyers: One, an actual separation of powers concern. If people can bring suits against executive branch lawyers for how they conduct their litigation, then you have judges second-guessing the conduct of executive branch lawyers in their prosecution decisions. That is, judges start influencing the kinds of cases and tactics used by prosecutors, even more than the judges already do in the course of litigation by running the trials. The appeal of absolute immunity is that it’s a bright-line rule, whereas allowing the suits would then only be as good as the Judge overseeing them (think of the recent Fifth Circuit “application” of Casey‘s “undue burden” test as compared to Roe‘s straightforward rule of no regulation of abortion at the earliest stages).

    It’s easy to imagine lawyers being hesitant to bring cases against politically powerful groups that have influence in the judiciary. There is a legitimate concern about the potential chilling effect suits might have against prosecutors bringing cases against large industries and wealthy people with powerful, talented lawyers. It’s already very difficult to bring prosecutions for various “white collar” crimes, crimes that endanger workers, environmental crimes, etc. And, certain judges are widely perceived as being very favorable to those interests and very willing to push the boundaries of the law to discourage regulation of them.

    Two, and related, cases such as those discussed in the post make compelling arguments for allowing lawsuits against government lawyers, but once you allow the suits, the mine-run of cases you’ll get will only be as good as the private attorneys and the judges that you have litigating them. I have immense respect for many of the people in the private bar, but a significant minority are readily willing to make extraordinary accusations with no basis in fact or law in the course of litigation. I suspect many of them would eagerly file suit against government lawyers with no greater basis. And, based on my observations so far, they will rarely, if ever, face sanction for vexatious and dishonest litigation.

    To be clear, I really don’t know where I come out on these issues, I don’t have any particularly relevant personal experience with them, and I don’t know a ton about this area of law. But, it’s not as straightforward as it looked to me before I started practicing.

    • Hogan

      If we’re going to have legal bar associations, it strikes me that they would be the appropriate place to address unethical conduct.

      Subornation of perjury is not just “unethical conduct,” it’s a criminal offense. I’m not down with leaving that to the guild.

      • DocAmazing

        Unfortunately, it’s unlikely that the local DA or grand jury will do anything about it, so the bar is at least something. Quis custodiet ipsos custodes?, or something.

        • DocAmazing

          Related to that, given that the justice system is sufficiently broken that a criminal like Ken Anderson gets off extremely lightly, I suggest tacking the scarlet letter on him. He should never be spoken of except as “the criminal Ken Anderson”. Let that settle in among his neighbors and family.

        • Hogan

          State attorneys general?

          • DocAmazing

            Your optimism is inspiring.

            • Hogan

              And short-lived, for the most psrt.

      • Lamont Cranston

        If criminal defense lawyers can be prosecuted and/or sued for their conduct, prosecutors should be held accountable too. We do have a constitutional right to representation when charged with a crime, so I think that any concern about a chilling effect applies with equal force to the defense bar. But you don’t see anyone fretting about criminal sanctions for defense lawyers who break the law.
        Defense lawyer and client convicted in perjury conspiracy case, now face maximum life prison terms

        “A Michigan criminal defense lawyer and his former client were both found guilty by a Detroit jury on Monday in a perjury case that arose out of a murder trial last year.

        Attorney David Benjamin Dunn, 44, and Andre Demetrius Collins, 24, were accused by the government of conspiring to get a witness to commit perjury in Collins’ first-degree murder case. Both were charged on the first day of trial in the murder case in March last year and both now face maximum life terms in the Wayne County Circuit Court perjury case, the Detroit News reports.

        In addition to conspiracy to commit perjury in a court proceeding, Dunn was also found guilty of inciting or procuring perjury in a court proceeding.

        Collins is currently serving a life sentence without parole that was imposed a year ago after he was found guilty of murder.”

        • L2P

          A prosecutor who suborns perjury would also be subject to criminal sanctions. Prosecutorial immunity is only to civil suits.

    • brad

      These are genuinely valid real world implications to consider, but I’m reminded of stop n frisk. Doesn’t work, of course, but it wouldn’t matter if it did. Those implications are immaterial against the weight of the abuse of authority undertaken by police and DAs at every level, especially including the Federal. If it’s unpleasant to be a DA then fewer sociopaths will want the position.

      • Tybalt

        But we need good DAs, not bad ones. Unpleasantness doesn’t deter sociopaths.

    • postmodulator

      As a practicing, government attorney, I’m constantly shocked at what does and does not lead to bar sanctions. If we’re going to have legal bar associations, it strikes me that they would be the appropriate place to address unethical conduct.

      Kind of answered your own point a sentence earlier. Self-regulation is imperfect in other areas, and it’s imperfect here too.

    • cpinva

      as someone who works with gov’t (Fed.) atty’s on a frequent basis, I know exactly where I stand on the issue: if fear of prosecution has a “chilling effect” on them committing unethical and/or illegal acts, in the process of them doing their jobs, I have no problem with that. I run that very same risk, and it’s never stopped me from vigorously doing my job, and going wherever the facts may lead me. if I ever reach the point where I feel compelled to manufacture evidence in a case, then it’s time I was permanently put out to pasture.

      within most gov’t agencies, there are sufficient levels of review, that something as egregious as mr. Anderson’s acts would (god, I hope!) never reach an actual courtroom. unfortunately, this usually isn’t the case at the local level, which is where we see most of the prosecutorial misconduct occurring, at least in my experience.

      both the individual and the state are entitled to a fair trial. in this case, neither got one, as the consequence of mr. Anderson’s illegal actions.

      • L2P

        The “chilling effect” isn’t re unethical practices. The concern is that prosecutors will start being hauled into court for doing completely ethical things.

        I’ve been sued, among other things, for signing a criminal complaint based on a DV victims testimony. She recanted at trial (huge shock) and the boyfriend, being a jackass, sued everybody involved.

        Do you really want to see everybody who loses a rape case have to then defend a civil case for suborning perjury? Because that’s what’ll happen without prosecutorial immunity.

        • (the other) Davis

          Do you really want to see everybody who loses a rape case have to then defend a civil case for suborning perjury? Because that’s what’ll happen without prosecutorial immunity.

          We allow malpractice actions against criminal defense attorneys and the system isn’t overwhelmed with suits by disgruntled convicts. So color me unconvinced that your envisioned “everybody who loses a rape case” scenario would come to pass.

  • joe from Lowell

    Just right, Scott. None of these cases are about good faith errors. They aren’t even close to the line.

  • Mike Schilling

    And as Atrios notes, the fact that the conviction of an innocent man means that a guilty person remains at large sort of gives away the law-and-order show.

    Not always. in the Cameron Todd Willingham frame, there was no guilty party.

    • This seems like a kind of weird thing to caveat. In the CTW case the very men who did the science were guilty of bad science and of using the case to puff off their credentials. Its arguably worse that this totally innocent man paid the price in the case of a crime which had not even been committed–just a tragedy.

      • cpinva

        even worse, the guilty parties weren’t even actual scientists, with real educations/training/professional accreditations in the field, they were basically hobbyists. it took a real scientist to prove them wrong, with real science.

        • JohnR

          it took a real scientist to prove them wrong, with real science.

          Which, unsurprisingly, made absolutely no difference to anyone. They were wrong according to reality, but they were still Right according to their community, and Willingham is still Dead.
          About half the country has simply decided that facts are only stuck-up opinions, and since a lot of kids never outgrow Jr. High and those stuck-up nerds, this carries a lot of weight. It took a bit of time to break down the idea of “trial by jury” as an antidote for “trial by superstition”, but we’re back to the 14th century again.

    • herr doktor bimler

      The NZ experience is that police and prosecutors *prefer* cases in which no actual crime occurred (missing person cases, Satanic Ritual Abuse, etc). They can make up a story, plant evidence and script the testimony without worrying about contradiction from facts.

      • I would say that it adds new meaning to the phrase “victimless crime” and then I think about the poor bastards in jail for events that never happened.

  • Srsly Dad Y

    I know this will strike some as hair-splitting, but Rarely Posts and others have noticed the problem with Prof. Lemieux’s use of the term “total immunity” in the TAP article, which is not quite right. Unless some states have laws I’m unaware of, prosecutors are not “totally immune” from punishment for misconduct — they are (like judges) immune from federal civil rights suits for damages. It’s totally fair to note the rarity of prosecutions of prosecutors (and I drafted an amicus brief in favor of a cert petition that did exactly that), but that problem is not a species of “immunity,” and this thread shows that it’s confusing to call it that.

    • Hogan

      Maybe he meant de facto rather than de jure?

    • cpinva

      “Unless some states have laws I’m unaware of, prosecutors are not “totally immune” from punishment for misconduct — they are (like judges) immune from federal civil rights suits for damages.”

      and they shouldn’t be, anymore than doctors should have caps on the amount of malpractice damages they’re at risk for. the odds of a flood of frivolous suits are pretty slim. if being at risk causes them to think twice, then maybe they didn’t have such a strong case to begin with, or their opinion didn’t have as much substantive/precedential merit as they thought it did. just maybe, they have no business being in the positions they’re in, and this risk would winnow the inept and incompetent from the pool.

      • DocAmazing

        If you’re analogizing attorneys and physicians, the state Bar is in the role of the state Medical Board, criminal courts are the same, and civil courts are the same. Physicians are also regulated by the DEA and by their specialty boards; is there an analog to this among attorneys?

      • She’s So Cold

        Now, then, I’m as big of an enemy of the “frivolous prosecution” bandwagon as any, but: actually, prosecutors get sued all the time, often by prisoners–most of whom don’t have particularly compelling cases. Absolute prosecutorial immunity from civil suits is one of the vehicles that allows pre-service screening out of these.

        • DocAmazing

          And what about prisoners that do have compelling cases?

          • L2P

            Much like people who don’t realize they could have sued their doctor for malpractice after the statute of limitations runs, they don’t get relief from the civil courts.

            Based on most tort principles no prosecutor should face civil liability, But there’s a decent argument their employers should.

            • DocAmazing

              Ah. So comparisons with medical malpractice liability fall apart, then.

              Gosh, so lawyers in law enforcement are protected, while non-lawyers are fair game. Why am I not surprised?

  • jon

    What is important is that someone has been convicted for the offense, and thus, justice has been done. I’m sure whoever it was that was convicted was not an unblemished soul, so he must need to be punished for something.

    If we demand that the powerful to be responsible for their actions, how can society continue?

    • RepubAnon

      It took me a bit to spot that as sarcasm.

      There was an episode of Deep Space 9 where the Cardassians were trying Chief O’Brien on that theory of justice. (When a crime is committed, someone must be punished to show that Justice was done… if the person punished was actually guilty, so much the better.
      Here, it seems as though the Dirty Harry-reinforced Republican meme of “bleeding heart liberal judges releasing obviously guilty criminals onto the streets” resulted in a trial by intuition. It’s reminiscent of the lead-up to the Iraq War: stove-piped information, people so sure of the rightness of their actions that they ignored anything contradicting their preconceived notions…

    • herr doktor bimler

      “…Two persons having committed a Category One crime, two persons will automatically suffer a Category One punishment, and the Essential Equipoise of Justice will thereby be painlessly maintained.”

      “It is what the scrupulous would look for,” assented Chun.

      “It is what they will inevitably see,” replied Wong Tsoi. “Should your leisurely footsteps chance to turn in the direction of the public execution ground on the occasion of the next general felicity, your discriminating eyes will receive assurance that the feet of the depraved find no resting-place on the upright soil of Hoo-yang.”

      “It is indeed a matter for rejoicing that your penetrating gaze recognized the degraded miscreants who will thus be brought to an appropriate end.”

      A faint absence of agreement for the moment obscured the well-balanced exactness of the lawgiver’s expression.

      “If,” he remarked profoundly, “so sublime a principle as Justice should depend on so fallible a thread as a single human attribute, all feeling of security would be gone forever. The two misbegotten harbingers of shame who submitted this hard-striving person to the indignity of thrusting him down into a polluted stream will sooner or later meet with a fate that will be both painful and grotesque. In the meanwhile, the wholesome moral of retribution will be inculcated in the throng by two others (doubtless quite as abandoned in their several ways) demonstrating that authority does not slumber.”

  • Srsly Dad Y

    Crimeless vicitms.

  • jgh

    Prosecutorial discretion is best argument against death penalty.

  • Srsly Dad Y

    L2P @33. Now Brad DeLong has picked up the OP and is confusing more people about “total immunity.” Related point: there is no federal constitutional principle at stake, and the SCOTUS has nothing to do with it, if states want to prosecute state (local) prosecutors or allow people to sue them. SCOTUS invented the immunity of judges and prosecutors from federal civil rights lawsuits for damages by a bogus interpretation of the federal statute, based on imaginary principles of 1870s common law. It’s just a federal thing.

  • mere mortal

    And lest we forget Antonin “Mere factual innocence is no reason not to carry out a death sentence properly reached.” Scalia.

    This rot runs throughout. Whatever the reasons for the fetishization of rules may be, it is completely orthogonal to justice.

    I thought it was supposed to be the lawyers being servants of the court, minding the rules. The judges were supposed to ensure that what came out of it all was justice. Instead we have seem to have lawyers as competing sports teams with the judges minding the rules. Justice isn’t part of that latter equation.

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