Prosecutorial Misconduct



Prosecutorial MisconductStudentTitle of the Course PROSECUTORIAL MISCONDUCT INTRODUCTIONProsecutors should not have immunity of any kind for constitutional misconduct. Most of the States’ Attorneys, County Attorneys, and other prosecutors are ethical people and treat their position as a public trust. But, in reality, many innocent people have gone to prison, or possibly worse, because of various kinds of misconduct by the prosecutors. Prosecutors have immunity even when they are proven to have committed misconduct (lies, suppression of evidence, tampering with evidence, hiding witnesses, etc.). Even when this misconduct is the most egregious, they are virtually never disciplined in any way for this unethical behavior. Quite the opposite is true. Usually, the misconduct is usually explained as “just doing their job” or “an honest mistake.”Under the civil rights statute, 42 U.S.C. Sec. 1983, there are two kinds of immunity which apply to prosecutors: qualified immunity and absolute immunity. The type of immunity which applies is dependent upon what the prosecutor was doing when the misconduct was committed. Absolute immunity applies even when someone proves that the prosecutor intentionally, in bad faith and with malice, committed misconduct. Qualified immunity applies when the misconduct violated clearly established law which they reasonable should have known about. This is considered the “functional” approach and is quite obviously confusing. However, these two types of immunity mean that there are no civil remedies for innocent people who have been wrongly convicted of crimes, nor for guilty people who possibly were convicted of the wrong crimes, or received much longer sentences due to deliberate lies and other misconduct by prosecutors. When the Supreme Court adopted the concept of absolute immunity, it relied on both historical and the then-current policies. According to the Court, Congress intended to keep common law ideas of immunity (the partial or qualified immunity) when Section 1983 was adopted in 1871. Absolute prosecutorial immunity did not come along until 1896. Therefore, any historical argument claiming that absolute immunity was the intent of Congress all along does not “hold water.”Aside from the historical argument, sometimes public policy is considered to be the reason for the necessity of immunity. The Court has sometimes justified it saying that civil liability would make the prosecutors less than effective because they would be constantly afraid of being sued. Also, they said that civil suits would burden the system and therefore interfere with the criminal prosecution of offenders. The reconsideration of allowing prosecutors to have immunity for their misconduct is extremely urgent for one very important reason: Recent students have shown that prosecutorial misconduct contributes to numerous wrongful convictions of innocent people and is actually working against public policy. According to a 2003 study, hundreds of innocent people have been convicted wrongly due to unethical or illegal actions of prosecutors. (XXX) The National Innocence Project reported that as of January 2005, over 150 people have served time in prison and they were later found innocent. Of those, many were convicted due to prosecutorial misconduct. This situation can no longer be ignored. Several important studies in the last few years have verified that prosecutorial misconduct happens frequently and with no geographical barriers in this country. Many innocent people have served time in prison, and even sent to death row because of it. All the studies concluded that there were no consequences for the prosecutors in any of the cases researched. Because of these studies, no one can continue to believe that our system protects innocent people from the misconduct of the prosecution and that wrongful convictions are a one-in-a-million occurrence. One particular study by the Center for Public Integrity found that since 1970 there were approximately 2000 verified cases of prosecutorial misconduct which were bad enough to get charges dismissed, sentences reduced, or convictions reversed. In 2000 The Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University reported in a major paper that as of 1999, DNA testing established that 76 people were convicted for crimes they did not commit and 26% of those cases involved serious misconduct by the prosecution. There were no disciplinary actions involving those prosecutors. At least three other national studies reached almost the same conclusions. As disturbing as these studies are, just reciting numbers does not even begin to convey the problem as it is in human terms. Death sentences have been reversed and people set free from death row. But, that brings up the question of the prisoners whose cases involving prosecutorial misconduct did not come to light before the date of execution. The consequences to actual human beings are extraordinary. Imagine spending time on death row with the knowledge that you are an innocent person. Imagine spending ten years behind bars. Even after the wrongly convicted are set free, the suffering is not over. These people go back out on the streets as convicted felons, in most people’s eyes. Employment prospects, especially in today’s world are practically non-existent. The wrongly convicted are not the only ones who suffer because of prosecutorial misconduct. They ruin lives and destroy families. How many more victims are there because the real perpetrator is free and still on the streets?How many families have to endure going through a horrible criminal case for a second time when it is discovered that an innocent person was convicted the first time because of the prosecutor’s unethical conduct? How much money is spent on appeals, re-trials, writs, Motions, hearings and trials that are totally unnecessary because the convicted person was innocent all along. Then further money is spent (rarely) finding and bringing to justice, the real offender. And, everyone is then denied closure finding out that the closed case is closed no longer. Trial processes, Appeals, Supervision, and other measures have proven totally ineffective to “check” the conduct of the prosecution in criminal cases. Even when the appellate court reverses a conviction on grounds of prosecutorial misconduct, the prosecutor is often not only anonymous, but not subject to discipline.. The consequence of a reversal is that the defendant will be retried or have a new sentencing hearing. The same offending prosecutor is often the same person who is the prosecutor in the new proceedings. Until the years of the Civil War, the Bill of Rights only applied to the federal government, not to the states. By 1865, Congress adopted the Thirteenth Amendment, which not only outlawed slavery but changed the Emancipation Proclamation into a constitutional right. But the Thirteenth Amendment not did really protect the rights and safety of the former slaves, and violence broke out all over the southern United States. Congress adopted the first civil rights statute, the Civil Rights Act of 1866. Congress soon adopted the Fourteenth Amendment to reinforce the Act. This required states to provide everyone the due process and equal protection of the law. In 1871, reinforced by the constitutional authority of the Fourteenth Amendment, Congress essentially took up once more the Civil Rights Act of 1866, which is codified today as 42 U.S.C. § 1983.143. As Justice Blackmun has explained, "Taken collectively, the Reconstruction Amendments, the Civil Rights Acts, and these new jurisdictional statutes, all emerging from the caldron of the War Between the States, marked a revolutionary shift in the relationship among individuals, the States, and the Federal Government."Section 1983 provides in pertinent part:Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .For nearly 100 years, § 1983 remained a bit in the shadows. In 1961, the Court held in Monroe v. Pape that § 1983 applied (federal statute) when police officers violated a person's civil rights by an abuse of their job, despite the availability of a state remedy. Since Monroe, § 1983 has been the main statute which is applied when civil rights violations are alleged against state and local officials. Soon, Sec. 1983 actions became more common, and the Supreme Court had to decide whether all officials were covered by § 1983. The Court, however, said that the 1871 Congress acted against the common law. Since the record does not explain anything about it either way, the Court said that immunities for government officials were still in place. Cases continue to come and go trying to either modify or eliminate the prosecutorial immunity factor. Different situations and varying levels of misconduct of prosecutors have gone before the Supreme Court. The immunities have certainly not disappeared and there have been no significant changes. The following are a simple of a few of the cases:Imbler v. Pachtman, 424 U.S. 409 (1976)In the case of Imbler v. Pachtman., the Court held that prosecutors are entitled to absolute immunity under § 1983. Imbler was convicted of felony murder and sentenced to death. The prosecutor knowingly used false evidence and suppressed exculpatory evidence. Freed by a writ of habeas corpus after serving nine years in prison, Imbler sued the prosecutor under § 1983. The action was dismissed based on absolute immunity. As the Court had previously concluded in cases involving legislators and judges, § 1983 should "be read in harmony with general principles of tort immunities and defenses rather than in derogation of them." Presented with its first opportunity to address the immunity of a state prosecutor in a § 1983 action, the Court began by exploring "the immunity historically accorded the relevant official at common law and the interests behind it." The Court found that the historical immunity of prosecutors was grounded on the same policies as the immunities of judges and grand jurors. "These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Finding the common-law rule of absolute prosecutorial immunity to be "well settled," the Court concluded that the continued identification of the doctrine was in line with public policy because the threat of civil liability would undermine prosecutions. The Court anticipated that actions against prosecutors "could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate." In the Court's view, the possible onslaught of civil cases would take away energy, attention, and resources from the performance of prosecutorial functions. Also, as the Court explained, even honest prosecutors make mistakes under the constraints of ime and information. Immunity permits prosecutors to exercise their discretion without fearing that they will be held liable, a fear that could lead them to withhold relevant and credible evidence lest it might turn out to be false. Thus, to the Court, absolute immunity was necessary because exposure to civil liability would undermine the prosecutorial function and in turn the criminal justice system. Burns v. Reed, 500 U.S. 478 (1991)Fifteen years later, the Court changed, somewhat, the immunity in Burns v. Reed. In Burns, a mother reported that her two sons had been shot by an unknown assailant. When the police concluded that she was the chief suspect, the prosecutor wrongly advised them that they could seek a confession from the mother while she was hypnotized. The prosecutor then used that confession to establish probable cause for her arrest. When these facts came out in court, the trial judge ordered the "confession" suppressed and the prosecutor dropped all charges. Burns brought a § 1983 action for damages against the prosecutor. The action was dismissed on the ground of absolute immunity. It went to the Supreme CourtThe Court noted that in Imbler it had held that absolute immunity covered the initiation and presentation of the State's case insofar as that conduct was "intimately associated with the judicial phase of the criminal process" but had declined to consider whether that immunity would extend to a prosecutor's conduct as an administrator or investigator as opposed to conduct as an advocate. As the Court observed, under the functional approach, "the official seeking absolute immunity bears the burden of showing that [it] is justified" and must overcome the presumption that qualified rather than absolute immunity is sufficient to protect government functions. Buckley v. Fitzsimmons, 509 U.S. 259 (1993) The Court returned to absolute prosecutorial immunity in Buckley v. Fitzsimmons: In Buckley, the question was whether absolute immunity protected prosecutors who conspired with police to fabricate evidence during the preliminary investigation of a highly publicized rape and murder. Specifically, the prosecutors retained an expert witness known for her willingness to fabricate evidence and who provided the entire basis for the prosecution by falsely connecting the defendant's boots to the crime scene. The lower courts found that absolute immunity applied, and the Supreme Court granted certiorari to refine the scope of prosecutorial immunity.However, even assuming that the 1871 Congress intended to retain the common law in adopting § 1983 and assuming that prosecutors enjoyed absolute immunity under that common law, this does not necessarily justify retaining absolute prosecutorial immunity today. Congress also knew that the common law evolved. As Justice Oliver Wendell Holmes, Jr., explained:The life of the [common] law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even die prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. . . . The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, consideration of what is expedient for the community In determining immunities under § 1983, the Court has repeatedly explained that the common law of 1871 is the starting point for analysis. But as this section has shown, absolute prosecutorial immunity did not exist in 1871. The Imbler Court was mistaken in its analysis of the analogous 1871 common-law immunities with respect to prosecutorial functions. And if the 1871 Congress intended to retain the common law, that does not mean it intended to adopt an immutable rule of immunity in place of the case-by-case evolution of the common law. The historical argument for absolute prosecutorial immunity is simply unsupportable. Absolute prosecutorial immunity violates public policy in several important ways. First, absolute prosecutorial immunity undermines the integrity of the criminal justice system. Second, it denies any remedy to the victims of the egregious abuse of government power. Third, it eliminates the needed deterrent effect that a civil remedy would provide, especially since other checks on prosecutorial misconduct are ineffective. Fourth, it hinders the development of constitutional law and the implementation of structural remedies to systemic problems. Fifth, absolute immunity is not necessary to protect honest prosecutors from vexatious litigation since the requirements for proving a cause of action and the defense of qualified immunity are sufficient to eliminate unmeritorious cases. And finally, absolute prosecutorial immunity introduces unnecessary complexity, confusion, and conflict into the law. The public prosecutor has a special role in our criminal justice system. One former attorney general observed that "[t]he prosecutor has more control over life, liberty, and reputation than any other person in America." That means the prosecutor should have special responsibilities, as well:The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, ... is not that [he] shall win a case, but that justice shall be done. . . . He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. As one court explained, this "overriding obligation of fairness [is] so important that the criminal law rests on the foundation: better the guilty escape than the innocent suffer."Absolute prosecutorial immunity undermines this compelling obligation to protect the innocent and to see that justice is done. We are not concerned here with minor breaches of professional etiquette. Prosecutors who engage in misconduct do not just commit wrongs, but they are criminal wrongs. Specifically, when a prosecutor violates a person's due process rights, the violation is a crime. Subornation of perjury is a crime. Tampering with and coercing witnesses is a crime. Using false evidence before a grand jury or court is a crime. Yet the prosecutors who engage in this criminal conduct are not prosecuted, but some cases, these actions result in broad injunctive relief regulating government conduct. School desegregation and prison reform cases are notable examples. In the landmark case of Brady v. Maryland, 373 U.S. 669 the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Unfortunately, Brady violations are one of the most common forms-if not the most common form-of prosecutorial misconduct, yet discipline is rarely imposed. According to the Innocence Project, suppression of exculpatory evidence is either a growing crime by prosecutors or is something discovered now that has been happening all along. If courts decide that absolute immunity must continue because of § 1983, they should at least deny the doctrine's application in two kinds of cases: (1) cases in which the prosecutor has suppressed exculpatory evidence; and (2) cases in which the prosecutor has engaged in misconduct before absolute immunity attached. As the following discussion will show, absolute immunity should not apply when a prosecutor has suppressed evidence because immunity in such cases is not necessary to protect the judicial process and is inconsistent with the Court's functional approach to absolute immunity. Neither should absolute immunity apply to acts of misconduct during the investigative phase because such acts are only entitled to qualified immunity under the Court's functional immunity doctrine. Prosecutorial Immunity is a significant factor in the wrongful convictions of many people and the unethical prosecutions of an untold number of others. There are virtually no deterrents nor punishment for misconducts and no recourse for those that are victimized by these prosecutors. Prosecutors, like all the other attorneys, must be held accountable for constitutional misconduct to maintain the integrity of, and the confidence in, the country’s criminal justice system. There must be an end to the immunity of any kind afford the prosecutors who commit misconduct. References"Federal courts--section 1983 litigation--fifth circuit equally divides on decision to uphold judgment against district attorney's office for withholding exculpatory evidence.(RECENT CASES)." Harvard Law Review. Harvard Law Review. 2010"Imbler v. Pachtman 424 U.S. 409 (1976)." Encyclopedia of the American Constitution. Gale. 2000"Immunity of Public Officials." Encyclopedia of the American Constitution. Gale. 2000Rothenberg, M. (2010) "No Let-Up: DOJ Prosecutorial Misconduct Continues (An Update)." Mondaq Business Briefing. Mondaq Ltd.Sinha, H. (2007).. "Prosecutorial ethics: the charging decision." Prosecutor, Journal of the National District Attorneys Association. National District Attorneys Association. Sullum, J. (2011) "Death row deliverance: prosecutorial misconduct.(Citings)(Case study)." Reason. Reason Foundation. ................
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