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Jan 06 2010

Prosecutorial Immunity Saved by the Bell – or the Dollar in this Case

One of the most frustrating aspects of working on wrongful convictions is the realization that prosecutors enjoy a wide immunity for actions that they take that led to the wrongful conviction. Many in the field were closely watching, therefore, the case of Pottawattamie County v. McGhee which had recently been argued before the US Supreme Court, which had looked to challenge the doctrine of prosecutorial immunity.

In 1977, two men were convicted of the murder of a retired police officer in Council Bluffs, Iowa. In 2003, their innocence was proven and they were released. It was discovered that the prosecutors in the case not only ignored evidence pointing to the true killer, but had actually doctored evidence and exerted pressure on witnesses to influence their testimony against the defendants.

In the ensuing civil rights lawsuit, the men named the prosecutors as defendants. The prosecutors’ motion to dismiss the case on immunity grounds was denied by the lower courts and the appeal that followed wound its way up to the Supreme Court.

The plaintiffs brought in former Solicitor General Paul Clement to argue their cause before the Court. By all accounts, the argument had gone exceedingly well. While a few of the justices were worried that carving out exceptions to the strict immunity prosecutors currently enjoy might make DAs a little gun-shy about some of their actions, many on the Court expressed concerns about the egregious conduct in this particular case. There was equal concern that derelict and unscrupulous prosecutors would be emboldened by the immunity shield to engage in illegal and unfair tactics against the defendant. It appeared that the majority of the justices were going to rule in favor of the plaintiffs and allow their case to stand.The decision was expected imminently since the case had been argued in November.

Today, the New York Law Journal reports that the State has suddenly decided to settle the lawsuit paying the defendants a total of $12 million. They had not offered a nickel up to this point. The settlement allows the State to say that there was no finding or admission of wrongdoing and protects prosecutorial immunity for a good while longer.

This issue is close to home for me because I have been involved in a number of cases with questionable conduct from prosecutor’s offices and have been unable to break the shield of immunity they enjoy. If you read one of my earlier posts “Freedom Won for Innocent Man but Maybe at the Cost of the Truth” you will see that the DA there avoided embarrassment and maybe more by offering a sweetheart deal to my client at the last minute. That’s what happens when the government holds all the cards. Having the ability to sue the government when they are caught thwarting justice is a wild card that should be in play to balance the scales a little bit.

This morning, my firm and another are filing a Federal civil rights lawsuit against the Suffolk County DA’s Office over the vicious and unconstitutional prosecution of ten immigrant nurses and their lawyer. The case received a lot of press at the time and the Asst District Attorney involved is the same one who vainly fought to keep Marty Tankleff in jail despite all of the evidence of his innocence and unfair trial. We fully expect them to raise the defense of prosecutorial immunity against our charges that they intentionally withheld evidence of innocence before the Grand Jury that indicted the claimants. While I feel that the proof we have against the DA’s office is so strong as to take it out of the immunity they enjoy, I had been keeping my eye on the McGhee case hoping that the court would give us guidance on exceptions to the immunity standard when there is evidence of intentional wrongdoing. You cannot blame the McGhee plaintiffs for accepting the sure thing and settling the case. But one day, hopefully soon, the US Supreme Court should examine this issue and make government lawyers accountable for their actions the way every other attorney would be. Until they do, you can be certain that more innocent people will be prosecuted and incarcerated without any recourse.

2 comments

  1. Diana

    How broad is prosecutorial immunity and what is the theoretical justification for this immunity? How is prosecutorial immunity reconciled with rule of law? Keep us updated on your filing re. the immigrant nurses case.

  2. Oscar Michelen

    All good questions. (1) Very broad, it covers prosecutors for being negligent, even grossly negligent. It does not cover malicious conduct. So you have to prove some form of malice and an intent to frame the defendant which is very difficult. (2) The theory behind it is that you don’t want to tie prosecutor’s hands by making them nervous about bringing certain cases to court. Witnesses and victims often lie to suit their own purposes and prosecutors often have to bring cases that they are not 100% sure of what happened or who is right but that there is enough evidence to prove guilt beyond a reasonable doubt. It would open up a can of worms to give every acquitted defendant a lawsuit against the DA. Judges enjoy even greater immunity, by the way. (3)PI is the rule of law unfortunately and like all law seeks to balance competing interests. By the way, initially the entire government was immune from suit – “The king can do no wrong.” Governments voluntarily gave up their sovereign immunity which is why they can set shorter statutes of limitation and notice of claim requirements that private entities cannot. It is also why they can preserve some forms of immunity as they choose, so they just never voluntarily gave up prosecutor’s and judge’s immunity – unless the Supreme Court declares that unconstitutional, which is why McGhee was so important potentially(4) Look for a new blog post on the nurses case by the end of the week. Thanks for the comments!

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