Friday, April 25, 2008

Prosecutorial Immunity?

"I read in the LA Times that the [US] Supreme Court will take up a case to decide if a former Los Angeles County District Attorney can be sued for his part in a man's wrongful conviction. ... The prosecution had no fingerprints, forensic evidence, or weapon. They did have the testimony of an informant who was a pro and who had a long history that should have been known by the defense at trial--but it was not known by the defense, since the prosecution did not disclose that information. ... However, the management at the [DA's] Office did not put any sytem in place to track informants. ... In spite of the evidence of many instances of misconduct, prosecutors are very rarely disciplined for their misconduct. Even more rare is the prosecutor who is charged with a criminal count due to his misconduct in the handling of a case. ... In other words, the prosecutor may commit heinous abuses of one's civil rights and there is generally nothing anyone can do about it. Surprised? I was. ... The Supreme Court in 1976 ruled that 'prosecutors, like judges, must be free to do their jobs without fear of being sued later' and that this rule of 'absolute immunity' applies when a prosecutor 'acts within the scope of his professional duties.' This means that the prosecutor knows beforehand that almost no action he takes in a case will result in civil or criminal punishment. ... What is it about this case that has many prosecutors in America afraid that Goldstein might win? Accountability. They are frightened that they will be held accountable for their actions. I think it would be a great thing for America's prosecutors to be scared to death that they will be held accountable for sending innocent men to prison or death row because they screwed up. Unlike some lawyers who have commented on this case, I think that the prosecutors are violating due process on purpose rather than by accident in the majority of those cases. ... Attorney discipline rarely is applied to prosecutors. ... We need to strip them of all immunity", my emphasis, Joseph Potter (JP) at, 22 April 2008.

The attorney discipline process is as big a farce as the PCAOB. Which attorneys does it discipline? In most cases small firm plaintiffs' attorneys. How often does a state bar disbar a major firm partner for actions he took defending a corporate client? I suspect rarely if ever. In about 1991 I read an LA Daily Journal, a LA lawyers' paper, article, that publishes appellate opinions, among other things that said just this. Prosecutors are human. Really. To understand their actions read our greatest judge's words in 10 Harvard LR 457, "The Path of the Law", 1897, Holmes. "But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact", 460-1. "But what does it mean to be a bad man? Mainly, and in the first place, a prophecy that it he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money", 461. Absent consequences for bad acts, the prosecutorial profession will fill with bad men. And has.

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