What “Absolute Immunity” Actually Means

Wednesday, August 8th, 2012

People like Radley Balko and others have directed a lot of criticism toward the U.S. Supreme Court for its rulings on “absolute immunity” for prosecutors and judges, and in my view, that criticism is valid. The various SCOTUS rulings, made supposedly to protect these officers of the court from others who supposedly abuse the system, actually create even worse conditions in which conduct occurs. Nature abhors a vacuum, and SCOTUS has created the Mother of All Vacuums by giving blanket protection to their own.

The high court has justified its rulings by claiming that although individuals that have been wronged cannot receive redress from the people who wronged them, those alleged miscreants still can be punished by the system, including the various state bars and also can face criminal charges. While all of that sounds good, the reality bumps into the simple fact that government employees tend to protect their own.

After the Tonya Craft acquittal, I spoke to an official of the Georgia State Bar about the conduct of prosecutors Len Gregor and Christopher Arnt. In a letter to the bar, I outlined specifically how these two men repeatedly violated the Standards of Conduct for prosecutors laid out in the bar’s regulations. The official, however, told me that she really didn’t care how they acted because, in her view, “They were just doing their jobs.”

After I asked her if suborning perjury, lying to jurors and the public, and hiding exculpatory evidence fell into the “doing their jobs” category, she hung up. Nor was the Georgia State Bar the only government agency that has been unresponsive. The FBI and the Georgia Bureau of Investigation were given mountains of evidence about prosecutorial and judicial misconduct that crossed the line into criminal behavior, yet they, along with the attorney general of Georgia, ignored everything.

This hardly is unusual. In fact, it is the norm. Lawsuits are the only means of redress that can be initiated by private individuals that are not employed by the justice system, so by blocking this one avenue of justice the SCOTUS essentially has blocked justice itself. Thus, in order for any kind of justice to prevail against prosecutorial and judicial wrongdoing, the very peers and friends of those who violate the law and standards of conduct are then expected to initiate proceedings against their peers and friends. That just does not happen.

When Michael Nifong was disbarred in 2007 for his obvious criminal — yes, criminal — actions in pursuing the charges in the Duke Lacrosse Case, people involved in the legal system prattled on about how such procedures were unprecedented and even amazing. Yet, Nifong got off easy. He lost his law license and his job, but still receives a large pension from North Carolina taxpayers. He also has his freedom. One should never forget that he and friendly judges in Durham had created and maintained an atmosphere in which three young men faced 30 years apiece in prison for something that Nifong and his peers knew never had occurred.

The sad thing is that it was extraordinarily easy for Nifong to gain indictments, and had not the North Carolina State Bar done what it never had done before — intervene in an ongoing criminal case (and the charges passed by just one vote) — Nifong would have been able to bring this farce to trial. Furthermore, a jury in Durham would have been under tremendous pressure to convict these young men, even though there literally was no evidence they even had touched Crystal Gail Mangum.

Despite the fact that Nifong openly broke numerous federal and state laws, authorities refused even to investigate his actions. So, if the authorities are not going to pursue a prosecutor whose lawbreaking was obvious and who had lost his political cover, why should we expect them to do anything in cases where lawbreaking might be harder to prove? As I see it, the failure by law enforcement officials in the Nifong-Duke case is proof that those who personally benefit from the criminal justice system are not going to do anything to rock the boat. If that means that injustice rules, then so be it. Those who run the system understand perfectly that they are invulnerable, and people who are not held accountable for wrongdoing eventually will run off the rails.


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22 Responses to “What “Absolute Immunity” Actually Means”

  1. #1 |  Yizmo Gizmo | 

    They need to give Defense Attorneys “immunity” too.
    Because we know “Officers of the Court” would never indulge
    in any shenanigans. Not after all that schooling.

  2. #2 |  Bren | 

    I think most Agitorts agree with these views.

    What’s the most practical plan (i.e. one that could actually make it thru the political or legal system) to make prosecutors more nearly accountable?

  3. #3 |  The Late Andy Rooney | 

    Thanks for bringing this stuff to light; what distinguished the Nifong/Duke case from the others, other than all the publicity it got? It seemed a promising development to me, like it might set a good precedent (for once).

  4. #4 |  Z | 

    The Louisiana State Bar was similarly disinterested- and in fact openly hostile- when I pointed out that one of their members not only allowed a witness to commit perjury but when challenged on it, demanded that I agree to a statement from the witness that what she (the witness) said under oath, was true. That’s all that needs to be said about attorney misconduct being “punished by the system”.

  5. #5 |  Deoxy | 

    Those who run the system understand perfectly that they are invulnerable, and people who are not held accountable for wrongdoing eventually will run off the rails.

    The end result is vigilante justice against said people. That’s less bad than them just running rampant, but it does lasting structural damage to society.

  6. #6 |  CyniCAl | 

    Jim Bell would know what to do.

  7. #7 |  Leon Wolfeson | 

    @2 – Stop electing them, have professionals who have a code of conduct to follow. One which is enforced.

    There’s a reason you don’t hear that much about prosecutorial misconduct in the UK compared to the US… (Indeed, it’s a system which works a lot better than our police or judiciary)

  8. #8 |  croaker | 

    @7 That’s how one barrister ended up resiging and leaving the show on Law And Order UK. You would never see an equivalent episode on US television.

  9. #9 |  liberranter | 

    Lawsuits are the only means of redress that can be initiated by private individuals that are not employed by the justice system…

    Actually, no, there are other means of redressing wrongs against the system. They’re very unpleasant to contemplate, but given that the system has run absolutely amok, these alternate means might soon become the norm for those who realize that they will get no justice whatsoever under prevailing conditions.

  10. #10 |  CyniCAl | 

    And, Liberranter, it is simply mindboggling to contemplate that it doesn’t already happen every day.

  11. #11 |  Helmut O' Hooligan | 

    “Lawsuits are the only means of redress that can be initiated by private individuals that are not employed by the justice system, so by blocking this one avenue of justice the SCOTUS essentially has blocked justice itself.”

    They may be the only means of redress approved by lawyers and the justice system, but lawsuits are only one of many possible tactics. Public shaming and even harassment of such officials is another possible tactic. Blogs like The Agitator are a part of this. More up close and personal tactics might include pickets of the officials workplace (the court house, the police department, the federal building, etc) or even their residence. Let this person’s co-workers, neighbors, friends and even their families know what they have done. These tactics are completely legal and apparently need to be employed more often, since going through “additional channels” is not enough. Unless absolutely necessary, threats should be avoided, because then they will turn it all around on you.

    Direct action should become the tactic of choice if state and corporate entities continue to thumb their noses at “the rabble.”

  12. #12 |  StrangeOne | 


    I think, paradoxically, the reason we don’t see more Jim Bell type solutions is the same reasons the injustices are perpetuated in the first place. People believe the government works. They believe the justice system actually peruses justice and that any vigilante action would be punished severely. The first belief isn’t true just by any means, but its a pleasant fiction people maintain. The second one is untrue mostly because the police really aren’t that good at catching dedicated criminals, especially the ones that have little problem firing on cops.

    The problem is that most of the people out there are decent. They’re not all good, or kind, or caring, but they’re decent enough to where they wouldn’t kill somebody. Even when their lives are threatened by government force few every consider challenging their attacker directly. The cops beat them, the prosecutors and judges lie to them, and they spend decades in prison because they played by rigged rules. But even after all that they mostly just want to be left alone. The thought of actively resisting the government actors that wronged them is beyond consideration. The morality of everyday people is the means by which they are oppressed.

    It’s a terrible Catch-22; no matter how terrible your government is only the worst kind of people are actually willing to do something about it. There just aren’t enough sociopaths out there willing to kill on principle alone. The few that exist seem more drawn to work for the government rather than resist it.

  13. #13 |  KBCraig | 

    Lawyers investigate lawyers just about as effectively as cops investigate cops.

    You have the Blue Wall of Silence, and then you have the Pinstripe Wall of Silence.

  14. #14 |  CyniCAl | 

    StrangeOne, that’s about the most cogent explanation for the lack of resistance to government in America that I’ve read.

  15. #15 |  Jack Dempsey | 

    @ #11

    I don’t disagree with what you say, but how long will it be before these completely legal actions are labeled as acts of domestic terrorism?

  16. #16 |  Helmut O' Hooligan | 

    #15 Jack Dempsey:

    Yeah, you never know the way things are going. But if you stick to public sidewalks for pickets and you avoid anything that sounds like a threat in your speech and/or correspondences then they would really have to get creative in court.

  17. #17 |  Leon Wolfeson | 

    @12 – No…a lot of them become company CEO’s.

  18. #18 |  Bergman | 

    When legitimate justice becomes impossible, vigilante justice becomes inevitable.

    Well, legitimate justice against a corrupt prosecutor is impossible right now.

    I expect to begin hearing about prosecutors being assassinated any day now.

  19. #19 |  Militant Libertarian » What “Absolute Immunity” Actually Means | 

    […] from The Agitator […]

  20. #20 |  Leon Wolfeson | 

    @18 – Of course, I’m sure you’re quite willing to make sure to ensure state powers grows at an unprecedented rate.

  21. #21 |  John | 

    @6 and @12 .. you all made my day, I haven’t heard Jim Bell’s named used much by anybody outside JYA in awhile. BTW he’s out now though haven’t heard anything about or from him via the usually channels.


    PS: Sorry for the O/T post but they brought back nice memories :)

  22. #22 |  Steve Verdon | 

    Maybe Swatting does have its place….just saying….