TheAgitator.com
This Week’s Crime Column…
Monday, September 28th, 2009…looks at Pottawattamie v. McGhee, which the Supreme Court will hear next month.
The question at issue is whether prosecutors who manufacture evidence that they then use at trial to falsely convict someone should be susceptible to lawsuits.
Yes, there’s actually a chance the answer to that question could end up being no.
The way things have been running lately, I’m guessing it’ll end up being no. :(
Great job, Radley. I like this “Supporters of extending absolute immunity argue that prosecutors are held accountable in other ways—by appellate courts, bar associations, and legal disciplinary boards.”
So, those same people were opposed to prosecuting Plaxico Burress I’m sure because he had already been held accountable by losing millions of dollars, being disgraced in the media and of course suffering a gunshot wound to the leg!
It’s the epitomic (word?) exqample of cognitive dissonance for fucking prosecutors to argue that other kinds of consequences (that are not criminal punishment) make *civil penalties* unnecessary.
And yeah, good point Radley, the distinction the Pro-tyranny groups cite actually hurts their case. If a prosecutor also manufactured the evidence personally then he must know it’s false and should be more accountable.
Forget civil penalties, the prosecutors should be subject to CRIMINAL penalties.
Exactly, civil penalties? Fuck that! Lock the pricks up!
I’ll bet $1 million that the state’s ruling is favorable to the state.
The problem with criminal penalties is that they’re subject to, you guessed it, prosecutoral discretion.
The only reason that any case goes to the supreme court is so that supreme court can rule in favor of the prosecutors and rewrite the constitution so congress doesn’t have to. I used to think that the supreme court would overturn all unconstitutional laws if people could just get their cases that far. Now I think that having any case go to the supreme court is the absolute worst thing that could happen.
I think it’s time we get off this rock and find some other place to be.
I’m with SJE, but ShelbyC is unfortunately correct as well.
These prosecutors should be charged with Obstruction of Justice (for obvious reasons), Criminal Confinement (for falsely imprisoning someone), Theft (for confiscation of property), Racketeering (for illegally supporting the prison-industrial complex), Attempted Murder (if they seek the death penalty), Murder (if the ‘convicted’ person is put to death), etc. But who would prosecute them?
Boyd Durkin “I’ll bet $1 million that the state’s ruling is favorable to the state.”
Boyd if you have a million to bet what the heck are you still doing here? I know if I had any money I’d leave this country so fast it’d make your head spin.
Prosecutors who manufacture evidence to obtain a false conviction should be subject to one of two criminal penalties:
1. If the victim went to prison and was subsequently released, the prosecutor should face the same amount of prison time as the victim in all the same jail cells where the victim stayed. No posh “minimum security” prisons.
2. If the victim didn’t go to prison, the prosecutor should face prison time in the amount that he was asking the judge to sentence the victim to.
The problem would end tomorrow.
Oh, and for those who favor being tough on crime – so do I. That’s what we’re talking about above. Being tough on crime means being tough on *all* crime.
“1. If the victim went to prison and was subsequently released, the prosecutor should face the same amount of prison time as the victim in all the same jail cells where the victim stayed. No posh “minimum security” prisons.”
And he should get raped by all the same inmates.
Who said anything about having $1 million? I’m an American. We use debt for everything.
radley’s site is #70 on the top 100 libertarian websites as listed on humble libertarian:
http://www.humblelibertarian.com/2009/03/top-100-libertarian-blogs-and-websites.html
Paging seeker6709, please pick up the idiot. seeker6709, please pick up the white idiot phone.
Just curious as to why the State wants to keep people who have suffered from this kind of abuse from speaking considering that the State speaks for so many others.
The reason a lot of them don’t face criminal penalties is because prosecutors have discretion over who they chose to prosecute. Thus it is pretty unlikely that any would ever chose to prosecute a colleague, particularly as it is likely that all the crimes committed occurred in the district they work in so the guy literally sitting up the hall would have to be willing to file charges.
There are actually good reasons that you can’t compel prosecution. The state doesn’t have the resources and normally when prosecutors don’t take cases it’s because they think they can’t win them. Thus we could end up in a situation where we’re wasting all kinds of resources putting on trials for no reason. You also have to keep in mind how petty people are. If you could compel prosecution you’d have people trying to get their neighbors prosecuted for all kinds of foolish things.
I think two things need to happen. First I agree with Radley that there should be civil liability for misconduct. All other lawyers can be sued by their clients for misconduct, I don’t see why lawyers whose client is the state (which we citizens comprise) should be any different. I’d be fine with the qualified immunity standard. They shouldn’t be liable for minor mishaps provided they acted in good faith but purposeful misconduct is inexcusable. Second bar associations and appellate courts do need to take a harsher stand on this stuff. Most states’ ethics rules place much higher ethical burdens on prosecutors. Those rules have been enacted for a reason and they need to be enforced. There are some studies out there that suggest most medical malpractice is committed by a handful of individuals who medical boards repeatedly decline to discipline for fear of setting rules they themselves will have to follow as well as sympathy for one of their own. I have the sense that bar associations are similar. That outlook needs to change.
[...] Radley Balko (one of my three favorite Libertarians, all on equal footing) has a column on Reason about the Pottawamie vs. McGhee case and prosecutorial misconduct. I’m torn on this issue. I tend to lean in favor of law enforcement, but the bad apples make it really difficult at times. [...]
Have people tried to pierce the immunity by arguing that a it only extends to a prosecutor’s LEGITIMATE duties? I would posit that illegitimate actions are by definition never part of a person’s legitimate duties. While there might be some ‘good faith’ protections in case a person violates the law while acting in a way he reasonably believes to be legitimate, to grant someone immunity even in cases where they know they’re acting illegitimately would be to effectively create for them a title of nobility, something which the Constitution expressly forbids.
At #17
There simply isn’t an answer to that question yet. Like Balko’s article says it remains an undecided issue (keep in mind that criminal law has really only been “constitutionalized” since the 60′s, every issue hasn’t gotten to SCOTUS yet).
One of the reasons I think it would be fair for qualified immunity (rather than absolute immunity) to apply is that qualified immunity usually only gives immunity to regular negligence in the scope of typical duties. It doesn’t protect state agents from gross negligence, reckless and wanton behavior, or intentional torts. It also doesn’t give immunity in situations where due process has been violated.
I don’t think Attorney Client privellage applies if they are involved in a criminal conspiracy. Why should it be any different for prosecutors? No equal protection arguement? They should have immunity for legitimate duties. Not when they engage in criminal conduct. That should nullify it.
#17 | supercat — “Have people tried to pierce the immunity by arguing that a it only extends to a prosecutor’s LEGITIMATE duties?”
This falls under the same heading as police officers. As long as the prosecutors’ actions are performed in official capacity, not for personal gain, and with no malice, the State will defend them to the death.
“Legitimate” is in the eye of the beholder. The State has spoken.
http://www.foxnews.com/story/0,2933,556300,00.html
More “punishment after time served”, “unintended consequences”, “it’s not my problem even though I know it’s wrong”, etc. Sex offenders are treated worse than Scarlet Letter wearers, people with the Plague, and lepers. Sure doesn’t give them incentive to do anything other than commit more crime, and likely more serious crimes. What a wonderful system, destroy people and call it “justice”, “it’s not my problem”, etc. Couple this with the intentional vagueness of the law, and cops/prosecutors/judges who twist things to make it possible for anyone to be a sex offender (texting, pissing along the highway, taking photos of your young children in the tub), and you make a large percentage of the populace “sex offenders”. I think the wronged should see Jim Bell.
#17: “…there might be some ‘good faith’ protections in case a person violates the law while acting in a way he reasonably believes to be legitimate…”
Well, like the prosecutor said to the grandmother who bought the cold medicine, ignorance of the law is no excuse.
Yes, it would be terrible if the folks ground up in the gears of the justice system were important, instead of nobodies whose lives don’t count. Real people might get hurt, then.
#21 Bam Bam–yeah and too bad most people who read this story will recoil at the label “sex offender” and wont read on to discover that this guy’s life was ruined because he tried to feel up a 12 yr old when he was 15. Most of us, certainly including myself, have done something in our lives that would put us on some sex offender registry somewhere. I just remain appalled by these laws, try to educate every one I know about the issue, and thank God every day that I’m not living in the woods or under the Julia Tuttle bridge.
I’m beginning to think the desired result of all the laws they keep passing is to make certain EVERYONE, except those “real people” (thx albatross #23), are either in prison or under the 24/7 surveillance and control of law enforcement, regardless of age or mental capacity.
The real difficulty is that ANY crack in the defense of prosecutors can AND WILL be abused with ridiculous lawsuits.
Now, I’m not necessarily saying that is worse. I’m just pointing out that there will be a very large cost to it.