Supreme Court Extends Absolute Prosecutoral Immunity

Monday, January 26th, 2009

The Supreme Court has unanimously overruled the Ninth Circuit in the case of Van de Kamp v. Goldstein, and broadened absolute prosecutorial immunity to include district attorneys whose poor supervision of subordinates may result in wrongful convictions. I wrote about the case last April:

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney’s office that prosecuted the case routinely used the testimony of so-called “jailhouse snitches” prosecutors knew or should have known weren’t reliable.

Goldstein’s case is unusual because he’s not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein’s case to go forward, causing the U.S. Supreme Court to agree to hear it.

This isn’t terribly surprising, but it’s too bad. All the incentives for prosecutors right now point toward winning convictions. There’s very little to hold them accountable when they go too far.

Currently, even if a prosecutor knowingly withholds exculpatory evidence in a case that results in a wrongful conviction, he can’t be sued.

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54 Responses to “Supreme Court Extends Absolute Prosecutoral Immunity”

  1. #1 |  Adam W. | 

    And look at the other case mentioned. Ugh again.

  2. #2 |  Z | 

    And the fact that its unanimous bugs me the most. It makes the supreme court seem like a clubhouse.

  3. #3 |  supercat | 

    The burden of proof should be quite high to initiate a lawsuit against a prosecuting attorney whose role is confined to that of advocate for the state. After all, it’s not the prosecutor’s job to decide that someone is guilty or not guilty, but merely to put forth the case and let a jury decide.

    That having been said, a prosecutor has a duty not to bring a case unless reasonably believes both (1) that the defendant is particularly likely to be guilty, and (2) that he can legitimately convince a jury beyond a reasonable doubt; a prosecutor further has a duty not to present evidence that he cannot reasonably believe is likely to be true. If a prosecutor fails in those duties, he should be liable for any damages he causes.

    Of course, proving that a prosecutor couldn’t have reasonably believed in the legitimacy of his actions will in many case be difficult or impossible. Prosecutors shouldn’t be sued because they make judgment calls that reasonable people might disagree with. On the other hand, prosecutors who act in ways that any reasonable person would regard as patently unreasonable should be sued, and should be removed from office.

  4. #4 |  tom 55 | 

    There are other ways to hurt that prosecutor. Look at the
    case for the alleged terrorist in Detroit. The prosecutor for that
    case was disciplined. I believe he lost his job over it due to
    prosecutorial misconduct. He’s in Private practice now making
    good money compared to what he made as a gov’t prosecutor.

    They could have disbarred him permanently. since it was only a
    foreigner wasn’t too well like anyway, they slapped him on the
    wrist and shook their finger in his face…bad boy!

  5. #5 |  Michael | 

    I guess the system really is “fixed”. No justice now! I guess that makes it easier for Ryan Fredrick’s prosecutor to use then jail house snitch with impunity!

  6. #6 |  erik | 

    Michael-totally agree. It’s sad to say but there is no hope of justice in America. The sooner it ends the better.

  7. #7 |  BamBam | 

    The system must protect itself. All your prosecutoral immunity are belong to us! This is one more instance of why I tell people we have an INjustice system, and why bother being a part of it? It will always be a kangaroo court, so why subject yourself to the evils of these despots? Let them take you dead; it’s better than doing innocent and being thrown to the throngs of bloodthirsty minions in order to appease the cacophony of shrill wail of gnashing maws.

  8. #8 |  Warren | 

    Yet one more form of redress closed off.

  9. #9 |  random guy | 

    This will wind up biting someone in the ass. The whole point of a justice system is that people have third party to go to so that they don’t have to take matters into their own hands.

    Its only a matter of time before some prosecutor or D.A. oversteps his bounds, and since he possesses immunity the only thing some citizen will be able to do on behalf of their convicted husband, son, wife, or daughter is butcher the poor idiot in his sleep. Maybe just before killing themselves because the system has left them with no reasonable alternatives.

    You can only push people so far, and it will take a few heads rolling before the powers that be decide that maybe lawsuits are a safer alternative to the kind of vigilante justice that this “fix” has the potential to provoke. Too bad a lot of other people are gonna get screwed over before that realization sinks in.

  10. #10 |  BamBam | 

    Its only a matter of time before some prosecutor or D.A. oversteps his bounds

    It has already happened countless times for decades, and will continue so long as humans exist. History shows that the “justice” system of the era is always stacked against the citizens, and those in power always abuse their authority. Question them, and the response is always indignant to the point of sanctimoniously claiming infallibility.

  11. #11 |  Michael Chaney | 

    For purposes of Godwin’s Law in dicussions of prosecutors, “Nifong” is the equivalent of “Hitler”.

    This is a problem that must be solved at some point, we shouldn’t have to stand back and watch a Mike Nifong try to ruin someone’s life.

  12. #12 |  V | 

    I just read the worst article of the year so far –

    A new low.

  13. #13 |  KBCraig | 

    How could they not introduce evidence (if not incontrovertible proof) that any deal made by the assistant had to be approved by the prosecutor?

  14. #14 |  john capone | 

    As the founders pointed out, if these people are not held accountable to the law, sooner or later they must be held to the sword instead.

  15. #15 |  Greg N. | 

    @12: Best line from that article: “While it may seem to be a contradiction for religiously oriented terrorist groups to rely on criminal activity, these groups are able to justify these seemingly hypocritical actions.”

  16. #16 |  ktc2 | 

    Like everything else in this country this is going in the exact opposite direction of justice. The fact that the SCrOTUmS were unanimous should be clear evidence of it being 100% wrong.

  17. #17 |  ktc2 | 

    John Capone,

    I meant to give you +1, but accidentally hit -1. My bad. Sorry.

  18. #18 |  Mattocracy | 

    I’ve pretty much lost all hope in the whole checks and balances thing. There is nothing we can do to check and the power authority. Who are we going to complain to…the authorities? The authority of the authorities pretty much made it clear that some of us are more equal than others.

  19. #19 |  Dave Krueger | 

    #11 Michael Chaney

    This is a problem that must be solved at some point, we shouldn’t have to stand back and watch a Mike Nifong try to ruin someone’s life.

    I think prosecutors ruin innocent people’s lives every day. It’s become part of their job description. They do it by withholding exculpatory evidence. They do it with lies. They do it with testimony from witnesses bought and paid for. They do it with over-charging and intimidation that forces innocent people to agree to a plea bargain. They do it with voir dere designed to ensure they have a friendly jury. And they do it by public persecution of the accused both before and after trial.

    And nothing motivates a prosecutor to push these tools into high gear like the impending threat of humiliation that comes from losing a high profile case.

    I could be wrong, though. Maybe we can ask Ryan Frederick for a second opinion.

  20. #20 |  Alex | 

    So a bunch of lawyers decided that lawyers can sue anyone (for anything) except … other lawyers.

  21. #21 |  Chris in AL | 

    Count me among the posters that find the unanimous vote to be as troubling as the vote itself.

    Even as the new pres. preaches that government has to be accountable to its people and he is (rightfully) bashing the previous administration on every turn for its legacy of violations of liberty and its secrecy, deception and protectionism, the members of his own party on the supreme court vote remove what little accountability exists for prosecutors and protect the system, not the people.

    And this right on the historical heels of a case as high profile as the Nifong/Duke LaCrosse team case.

    I think this directly undermines Obama’s declarations of an open and accountable government. It at least makes it look like just lip service because in their first opportunity to side on more accountability they unanimously sided with more protectionism.

    So why should I think that “all goverment agencies” really will “comply with Freedom of Information Act requests” and show that they respect “the spirit of these laws” etc… etc…

    Now that seems like just more smoke up our skirts, and when the time comes they will refuse the requests just like before.

    Sorry for the long post.

  22. #22 |  Ben (the other one) | 

    I’ll put my disclosure up front: I’m a former federal prosecutor, now in private practice.

    The Van de Kamp opinion is completely unsurprising, doing little more than acknowledging that the absolute immunity the Court found for prosecutors in Imbler v. Patchman extends to tasks which, although administrative, nevertheless are directly related to preparing a case for trial. If you don’t like absolute immunity, then complaining about Van de Kamp is a bit like complaining that the barn door is open 32 years after the horse has already left.

    In fact, I think that the Court didn’t go far enough in Van de Kamp, and that their failure to extend immunity even further disserves civil liberties.

    The needle they were trying to thread in this opinion is between “prosecutive” decisions (most clearly, whether to bring charges and courtroom conduct of a criminal trial)– which Imbler clearly places off-limits to civil suit– and “administrative” or “investigative” tasks which the Court decided in Burns v. Reed are not entitled to immunity. They basically put the training of prosecutors and the creation (or not) of information systems to track informants on the “prosecutive” side of the ledger, and therefore found the DA and his chief deputy immune from civil suit. The Court should have junked this distinction, at least as to investigative tasks, and should have held that prosecutors’ absolute immunity extends much more broadly.

    Why would this have helped the cause of civil rights? Because currently, the exposure prosecutors face for investigative conduct under Burns has deprived law enforcement agents of a critical source of legal advice regarding the rights of criminal suspects, targets, and subjects. Most prosecutors– particularly at the state and local level, where police training is frequently the poorest– follow a personal or office policy of not participating in key investigative decisions; that policy almost always is the result of fear that they will be sued for providing investigative legal advice.

    Consequently, many police officers pursue warrant applications or employ search methods which violate citizens’ rights, and the redress available (suppression of evidence, or a sec. 1983 suit which must overcome the officer’s qualified immunity) is utterly inadequate to remedy or deter that harm. Society would be far better off if prosecutors could provide legal advice to police without fear of exposing themselves to suit.

    I’ll close by noting that the informant’s name in this case was “Floyd Fink.”

  23. #23 |  Chris in AL | 

    Hi Ben, thanks for your insights

    So you are saying that police have no ability to get legal advice about warrants or searches other than the local prosecutor who cannot advise them for fear of lawsuit?

    And the only way to solve this is to remove all fear of lawsuits?

  24. #24 |  Michael Chaney | 

    Other Ben – thanks for your comments. I can see your logic, but I believe that the same ends could be attained in another way, and that is dropping the immunity that police officers enjoy as well.

    Something that has always troubled me is that when officers break the law, we have silly terms to make it sound less severe. For instance, entering a house with an invalid warrant – since the warrant is the only legal instrument that allows the entry, police officers who don’t have a valid warrant are simply burglarizing and should be charged as such.

    A great recent example was in the BART case in Oakland. After the shooting, the officers immediately began confiscating any camera phone around there.

    Oops, did I say “confiscating”. No, they were *stealing* cameras. Taking something that’s not yours is *stealing*. Around here, that’s known as “strong-arm robbery”. But, of course, they apparently weren’t charged. (And, by the way, it’s also destruction of evidence.)

    I know, people say that if we actually treated criminals as such it would “open the floodgates” and all that. Really? I don’t think so. There would be a lot of dirty cops put in the jails where they belong, but within a week or two it would be over.

    As for prosecutors, I hope you’re clean. But hang around here and you’ll find that Mike Nifong is in good company. I wouldn’t say he’s the norm, by any means, but obviously we have a corrupt prosecution problem in this country, and handing people like him even greater immunity serves no purpose except to make it easier.

    All that said – you tell us – What’s the proper way to handle a Mike Nifong case?

  25. #25 |  Ben (the other one) | 

    Chris– Most police officers at the state and local level receive some basic training in the law relating to search, seizure and arrest. The quality of this varies a lot from jurisdiction to jurisdiction.

    If a police officer has a legal question, most of them have few legal resources other than their own, and their fellow officers’ understanding of the law. Some big departments might employ their own attorneys, but these are not the same prosecutors who might try the case.

    So, yes, I am saying that one big deterrent to having prosecutors advise police officers during an investigation is the fear of personal civil liability.

    If the goal is to reduce civil rights violations, then you have to look at prevention, not just deterrence. The reality is that the prosecutors are, in essence, immune now during investigations because most of them have read the Burns case and have decided not to get involved.

  26. #26 |  Cynical in CA | 

    Wow. Imagine.

    The State defended itself.

    I’m speechless.

    Never would have seen that coming.

  27. #27 |  Cynical in CA | 

    Michael Chaney, I think the first comment on any post from here on out should simply be “Hitler.” Get that Godwin’s Law thing out of the way.

  28. #28 |  Dave Krueger | 

    I don’t have much use for Godwin’s law. It’s mostly becoming just a quick way to discredit someone without directly responding to their argument. A little like name calling.

    Personally, I wonder what historical comparisons they used in 1930’s Germany to warn of the trend toward the police state. Maybe they had something similar to Godwin’s law to put down those pessimist bastards who preached doom and gloom during the early years of Nazism.

  29. #29 |  Chris in AL | 


    Though the cases are not directly related, it is disturbing that broadened immunity for prosecutors is the only way to protect civilians from civil liberty violations due to a lack of training and knowledge about rights and evidence at the police level, while at the same time the “increased professionalism” of our police forces, their expanded training, and internal review processes are the very things being sited as reasons to remove suppression of evidence restrictions in opinions like Scalia’s in the Hudson case.

    So they are both highly trained, knowledgable and professional and under trained and without available resources to gain the knowledge to act professionally. And both are reasons to remove our protections or possible avenues of recourse.

  30. #30 |  ktc2 | 

    Less accountability by government is NEVER the correct response.

  31. #31 |  ktc2 | 

    Considering the record of prosecutorial abuses in this nation does anyone really think that prosecutors would give cops any advice other than how best to “work around” or “find holes” in civil rights? Seriously?

    When we have prosecutors who make statements like “probation is for the innocent” or who consider it a “badge of honor” to convict someone they know is innocent do you want them further colluding with the cops?

  32. #32 |  Dave Krueger | 

    We could get rid of a lot of civil rights violations by getting rid of victimless crimes. Those are mostly the ones where the cops have to invade private property to find evidence that a crime even happened. Those are also the ones where cops are most likely to plant evidence.

  33. #33 |  jwh | 

    There’s a reason the Ninth Circuit Court is referred to the Ninth “Circus” Court……….

  34. #34 |  Mrs. C | 


    I agree.

    We are reminded that man is imperfect…so we should not put our trust or faith in him…and I am slowly…but surely…learning this.

    The only saving grace is…that when it is our time…our deeds and misdeeds…will render us the justice…we deserve…as a result…of how we have…conducted our lives..and treated others.

    As we will all stand before…God…the ultimate…and supreme judge…it would be wise…to remember that.

  35. #35 |  Ben (the other one) | 

    Michael (#24): In my experience, most prosecutors are “clean,” just as most police officers are, but I nevertheless believe we have a long way to go to fix the problems with the criminal justice system.

    As for Nifong, he got about 60% of what he deserved: the one-day sentence for lying to the court should have been much, much, longer. Nevertheless, the guy lost his job, was disbarred, and ended up bankrupt. I wouldn’t characterize it as the system “working” (because if the system worked it wouldn’t have happened to begin with), but I think that it demonstrates that there are some alternatives to personal civil liability for prosecutive decisions.

    Chris in AL (#29): I didn’t mean to suggest that the only solution to police abuse is to waive personal liability more broadly (nor do I agree with Justice Scalia that there’s a “new professionalism”– I think that comment reveals as much about how out-of-touch Scalia is as the Burns decision reveals about how out-of-touch the Court was in 1976).

    I think there’s a lot of other things that could be done to improve our system: better training for police officers and magistrate judges (many of whom know as little as a beat cop about the 4th Amendment); national standards for tracking informants and assessing their reliability, and for assessing officers’ performance in light of civil rights; compensation funds for victims of excessive or misplaced force, etc.

    ktc2 (#30): In fact, I do not believe that most prosecutors would collude with police to work around or find holes in civil rights. In the federal system, search warrant applications typically are only presented after review by a prosecutor; like most federal prosecutors, I know of many times in which a prosecutor refused to present a warrant for lack of probable cause. (Federal prosecutors who are involved in large-scale investigations also tend to be more comfortable providing some legal advice to investigative agents than state and local prosecutors who typically receive a case in a package after the investigation is over.) I suspect that the fact that relatively few stories about federal warrants appear in Radley’s blog reflects the benefits of additional legal scrutiny.

  36. #36 |  Victor | 

    Some questions to consider –

    Do cops get rewarded for how many guilty people they arrest, or just how many people they arrest?

    Do prosecutors get rewarded for how many guilty people they convict, or just how many people they convict?

    What more dangerous predator is there on the North American continent than the ambitious prosecutor?

    Just asking.

  37. #37 |  Cynical in CA | 

    “Personally, I wonder what historical comparisons they used in 1930’s Germany to warn of the trend toward the police state.”

    Well, Dave, they could have gone to the recent examples of genocide of Armenians by the Turks in 1915-16 (orchestrated by the Germans) or a bit further back to the British concentration camps for Afrikaaners in South Africa during the Boer Wars of the late-19th and early 20th centuries.

    Or they could have noted the extermination of the Native Americans by the U.S. during the 19th century. Or the mass famines induced by the British in India and Ireland in the 19th Century. In terms of sheer numbers, these come close to Hitler’s tally.

  38. #38 |  Dave Krueger | 

    #37 Cynical in CA

    In terms of sheer numbers, these come close to Hitler’s tally.

    But they don’t have the contemporary name recognition of Hitler and Nazism. I think comparisons to extreme cases are perfectly valid if they are trying to explain where the state is headed. After all, when the state becomes as far gone as Germany was in the 30s, it will be too late for comparisons. Complaining about those who raise the specter of Hitler (which is what Godwin’s law does) seems to imply that “it can’t happen here” so one shouldn’t be making such wild assertions. I’m not arguing so much as just explaining my attitude.

    In any case, thanks for taking the question seriously and for the historic examples I was wondering about.

  39. #39 |  Michael Chaney | 

    Wait, Ben. Nifong built a case with false evidence against three men that would have sent them to prison for most of their productive lives, and you think he shouldn’t face civil liability?


    Congratulations, you’ve made Michael Chaney speechless…

  40. #40 |  Michael Chaney | 

    By the way, Ben, my wife will be in touch – she’ll want to know how you did that…

  41. #41 |  Ben (the other one) | 

    Michael, you’ll note that I didn’t comment on the civil suit (in which Nifong was named as a defendant), I just said that the consequences to him show that there are some alternatives.

    As for Nifong’s civil liability, another exception to absolute immunity concerns making statements to the press, which the NC bar identified as one of Nifong’s offenses against the bar rules. So I’m not sure that he’s been let off the hook entirely on immunity grounds.

    But that begs the question whether I think he should be subject to civil liability for non-public violations of the Duke players’ rights (e.g., failing to disclose exculpatory evidence). I would be happy to have the immunity changed to qualified immunity, but I do think prosecutors have to be shielded from the costs and distractions of civil litigation, particularly given the litigative propensity (and free time) of many convicted defendants.

    Suing Nifong or doing nothing are not the only choices. Nifong was an officer of the City of Durham. Although I’m not an expert on North Carolina law, the City is probably answerable for his conduct under respondeat superior principles.

    Finally, consider Nifong’s personal bankruptcy, and then consider that, as the DA for Durham, he was probably making more, adjusted for cost of living, than 75% of other state and local prosecutors make. You can sue him all you want, but you can’t get blood from a stone. Anyone with a deep faith in the civil justice system as a means of righting wrongs should pick up a copy of Bleak House at their public library.

  42. #42 |  Cynical in CA | 

    “Complaining about those who raise the specter of Hitler (which is what Godwin’s law does) seems to imply that “it can’t happen here” so one shouldn’t be making such wild assertions. I’m not arguing so much as just explaining my attitude.”

    My understanding of the practical application of Godwin’s Law is to deter the flippant reference to Hitler, which is widely regarded as diluting the gravity of Hitler’s crimes and disrespecting the victims.

    “In any case, thanks for taking the question seriously and for the historic examples I was wondering about.”

    You’re quite welcome, Dave. The historic examples, while not as well-publicized as the Nazis’, might have generated a similar ignominy pre-WWII in public discussion had they been given the same respect as the Holocaust.

    I guess Jews have better publicity.

    Disclaimer — Both of my parents are Jewish, which makes me Jewish by default.

  43. #43 |  Andrew | 

    Other Ben–

    Remember, lawsuits aren’t just about money. Any 1L who’s taken torts law will be able to tell you about getting $1 damages for a minor “harm” done. It’s sometimes about the principle of a court telling someone that a wrong has been done, which, among other things, acts as a deterrent for others to engage in the same conduct in the future, especially in a case where there may be true damages. Yeah, some defendants are gonna sue everyone — but not to the extent you seem to think they will, and most of those lawsuits will end up being looked upon kinda like the ones from everyone’s favorite litigious federal inmate, Jonathan Lee Riches.

    I’m not a litigator. I’m your typical average big firm transactional corporate lawyer. I sit and push paper all day. So maybe my thoughts on this matter aren’t exactly the best, legally. But I do still have my sense of what’s right and what’s wrong. Just on a simple principle — I’m currently working on a deal worth about $10 million to a client of mine, a small, private company. If I were to screw up and cost them money, or if I were to take personal actions that caused my client harm — you’d better believe that I’d be on the wrong end of a malpractice lawsuit for big money. Guess I don’t understand why, if a prosecutor maliciously or negligently sends someone to jail for years of their life (which is far more egregious than costing them some money) they shouldn’t have to suffer the same fate.

  44. #44 |  Ben (the other one) | 

    I understand the normative value of even a nominal civil recovery. The Supreme Court’s point (with which, in this case, I agree) is that society has to strike a balance between the benefits of potential remedial (and normative) effects of civil liability, and the costs to both prosecutors individually and society as a whole in meritless lawsuits. With all due respect (and I’m in private practice now, too), the situation isn’t really comparable when it comes to the costs and benefits to society.

    Moreover, as a private lawyer, although you would probably be named individually if you committed malpractice, the reality is that your firm’s insurance carrier would probably pick up the tab and your aggrieved client– even if it were really angry– would probably settle for an amount less than or equal to the coverage limits. When it comes to a civil suit, practically speaking you’re just like a prosecutor whose government (local, state, or federal) is the deep pocket that is most likely to get sued.

  45. #45 |  Michael Chaney | 

    Ben, let me respond to a couple of points about Nifong. First, it’s telling that his only punishment was extra-judicial. The Bar shouldn’t have to step in and do the job of the legal system. I don’t disagree with their actions – in fact, I find it quite proper. However, that should have been a small part of what happened to him.

    As for the civil action, I really don’t care about his bankruptcy. He looks fit for work to me. I don’t care what kind of work. There are three men with $1M in legal bills that were created solely by the malicious actions of Mike Nifong. He owes them that money, along with the city of Durham.

    But, let me take another approach, because I think this might help a) bring you around and b) bring a little closure.

    Imagine that you are being prosecuted for a crime that you didn’t commit, and the prosecuting attorney knows that you didn’t commit. He has faked evidence against you, withheld all exculpatory evidence, and you’re looking at 15 or 20 years in jail if he gets a conviction.

    What would *you* do?

    And, if you didn’t go to jail, do you think you would be entitled to compensation for your lost time and money?

    I know what I would do, but we’ll save that for later.

  46. #46 |  Ben (the other one) | 


    First, re: Nifong– as I mentioned, I thought the criminal contempt sentence (levied because he lied to the court) of one day was far too short. I think the court would have been justified in sentencing him to many months (or even years, but I’m not sure that the NC state courts have authority to do that in criminal contempt cases). Also, as I mentioned, I don’t believe that Nifong’s extrajudicial statements (i.e., to the press) are covered by absolute immunity, and I believe that these are still being litigated. Also, from the press accounts I’ve read, Nifong may also be on the hook for involving himself in the investigation (which is what I’ve argued should also be immunized), because he prepared a suspects-only photo lineup for the police to use. So, he’s not off the hook yet, even under the pro-prosecutor standard set by the Supreme Court. Finally, even a federal bankruptcy court must respect the state’s exempt property rules, meaning that Nifong would get to keep his home if he owned it along with a spouse, his car (provided it’s not valued above a certain limit), and some income from whatever job he can get as a disbarred attorney and social pariah. The Duke players might get a trickle of income from garnishing his wages, but it’s not going to come close to actually compensating them, and I would predict that they, like other tort victims pursuing bankruptcy claims, would lose interest after a few years of hounding Nifong.

    Now, to respond to your hypothetical: As I understand it, I’m being wrongfully prosecuted with falsified evidence and the prosecutor has withheld exculpatory evidence. This is going on right now, and I’ve not yet been convicted. With the caveat that I’m not offering specific legal advice, here’s what I would do: I would summon all of the financial resources I have and hire a diligent and competent defense counsel, probably along with a private investigator and experts in fields relevant to the alleged crime. I would make sure that every single witness was tracked down and interviewed, that all possible forensic tests had been done competently and that all available evidence to impeach the state’s experts was obtained, that every plausible legal argument had been made to dismiss the charges, that my defense team had filed the necessary motions to obtain access to the State’s evidence (including exculpatory evidence), that the team was prepared for trial in every conceivable way, and that before and during trial, an absolutely flawless record was prepared for appellate purposes in case I lost. If I believed (or even suspected) that exculpatory evidence was being withheld, I would exhaust all my procedural options to obtain it before trial, and make the record clear (through proffers of evidence, affidavits, etc.) what was missing and why it was important to my defense.

    In short, if I were on trial in such a case, pretty much the last thing I would waste my time on would be a civil suit against the prosecutor which– even if it were permitted in this hypothetical– would certainly be stayed pending the completion of the criminal trial anyway.

    If what you’re implying is that I (or someone in my position) should take the law into their own hands and try to harm the prosecutor or the police, I think that’s a terrible option. It would turn a possible felony conviction with a lengthy sentence into a probable capital conviction (I live in Virginia) with the death penalty. It would deprive my family of a father, and the prosecutor’s family, too. Plotting such a thing would also be an enormous distraction from preparing my criminal case.

  47. #47 |  Michael Chaney | 

    While I’m not necessarily implying taking the law into your own hands, I find it interesting to read your reasons:

    It would turn a possible felony conviction with a lengthy sentence into a probable capital conviction (I live in Virginia) with the death penalty.

    The Duke boys were looking at a felony conviction with a lengthy sentence.

    It would deprive my family of a father,

    Um, so would going to jail on false charges.

    and the prosecutor’s family, too.

    He’s a piece of human garbage – It doesn’t matter what happens to him. While I pity her, Mike Nifong’s wife chose rather badly…

    I will say this, though. There comes a time, and I’m not sure when it is, that people actually have to fight back against those who use the resources of the government for their own nefarious purposes. As an example:

    Note that in that case, nobody had to die, but somebody *did* have to put their foot down and say enough is enough. Like many – if not most – people here, I believe in rule of law.

    Mike Nifong, and those like him, do not.

    I wish you luck in your fight, Ben, whatever it is.

  48. #48 |  Ben (the other one) | 

    Thanks, Michael. My central point still stands: even if it were permitted, a civil cause of action against a prosecutor is pretty much the last thing a criminal defendant should be doing with their time and money prior to trial.

  49. #49 |  fwb | 

    Duh!@ Under the paradigm of our form of government, government has NO sovereignty and unless specifically granted authority to provide immunity to its officers, has no authority to grant immunity. If We the People don’t grant it, the government DON”T have it.

    Dominus providebit!

  50. #50 |  Michael Chaney | 

    Okay, Ben, how about *after* the trial? Seriously, you’ve yet to tell us what a normal person should do if attacked by a Nifong.

  51. #51 |  supercat | 

    Like many – if not most – people here, I believe in rule of law.

    Unfortunately, many in government prefer totalitarian anarchy.

  52. #52 |  Archie1954 | 

    Misfeasance, malfeasance and gross negligence should never be protected as this was. Protecting these egregious individuals and their actions is simply making sure that such misconduct will continue. The Supreme Court just handed the judicial system another disgraceful hit.

  53. #53 |  ONE OLD LADY | 

    I’ve read the thoughtful comments above. In my humble opinion only, and I’m a 67 yr old Lady with only a highschool education, you’ve all forgtton one important thing……..It’s ALL ABOUT THE MONEY! Is its not a fact that a “Defendant” presented with a Charge issued by a police officer or an agent of the State or Federal Gov is nothing more than a Bill that has to be paid by Someone? The more charges the bigger the Bill. Is it not a fact that if the “defendant” is found innocent in a court of law, that the prosecutor’s bond pays the Charges? Is it not a fact that at the end of the court’s day or however long it takes to settle the matter, the charge on the books( court records) must be balanced to zero ( could that mean ” checks and Balances) and the payments sent to the Treasury? Is it not a fact that if the prosecutor loses too many cases he then becomes Unbondable? Who then is going to pay the BILL for the prosecutor? Why do you think an “attorney” won’t take the case of a “defendant” even if he believes he’s innocent. He knows how the(game) is played. Could it be He doesn’t want to pay for the charges..the bill..lodged against the “defendant” in a case he knows he won’t or can’t win in a Public Court room.

    Now with that said….An honest Lawyer or a 3rd party acting as surety for the “defendant” will do what “46 BEN(the other one) would do….if I understand the following quote..” If I believed (or even suspected) that exculpatory evidence was being withheld, I would exhaust all my procedural options to obtain it before trial, and make the record clear (through proffers of evidence, affidavits, etc.) what was missing and why it was important to my defense.”

    He would file a Petition to the Court for an Administrative hearing in the Judges private chambers with (proffers ……ect.)
    “Not for public viewing”. BEFORE TRIAL.The Judge must then act as a ‘Referree” in this case and consider the evidence and affidavits (which unrebutted stand as Truth) on the private side…then make a Summary Judgement in a Public Forum “courtroom”…as the Public cannot hear or see what goes on ..on the private side of an administrative hearing.
    Please correct me if I’m mistaken in my understanding of all of the above.

  54. #54 |  Will Lady Justice Be Saved? | IMAGINE 2050 | 

    […] The High Court now must decide if immunity from being sued for prosecutors is absolute in Pottawatomie County vs. McGhee. Deputy Solicitor General Katyal argued that there is no “free-standing due process right not to be framed”. What seems like a no-brainer, protection from the government by the constitution and the bill of rights, may be severely diminished. Earlier this year the Supreme Court unanimously expanded prosecutorial immunity. […]