Political Opinion: ABSOLUTE PROSECUTORIAL IMMUNITY VERSUS QUALIFIED IMMUNITY.

May 6, 2008 by
Filed under: Uncategorized 

ABSOLUTE PROSECUTORIAL IMMUNITY VERSUS QUALIFIED IMMUNITY.
Which protects the public, innocent accused and the prosecutorial community?

Numerous cases have revealed that prosecutors have been guilty of concealing exculpatory evidence, presenting false evidence or other practices that deprive the accused in a criminal case of his due process rights under the 5th and 14th Amendments. When exposed this usually results in a reversal of the conviction and release of the wrongfully convicted from jail. Of course if the defendant has been executed then exoneration is meaningless.

However the Supreme Court in Imbler v. Pachtman has ruled that prosecutors have absolute immunity even when they knowingly present false evidence at trial or suppress exculpatory evidence. This leaves them to be disciplined on some occasions by their state bar.

Absolute prosecutorial immunity only attaches when it is intimately connected with the trial of a case. For instance it does not attach when a prosecutor is assisting the police in investigatory functions or in activities not directly involved in the trial of a particular case. It is not based on the job title, prosecutor, but on the function the prosecutor is performing namely intimately trying a particular case. Intimately is a word used by the courts to describe when absolute immunity attaches.

Recent civil cases against supervisory prosecutors for damages due to a failure to set standards or office procedures for the protection of the accused constitutional rights are not accorded absolute immunity but may have qualified immunity.

This occurred in Goldstein v. Van De Kamp, where the Los Angeles County District Attorney and his chief deputy were sued for failure to set up an index to alert prosecutors of all relevant information to each prosecution including promises made to jail house informants in return for favorable testimony.

Goldstein served twenty four years in jail on a conviction for murder based on the testimony of Edward Floyd Fink a notorious jail house snitch who had received numerous reduced sentences in the past and in Goldstein’s case had been promised favorable treatment on a pending case for testifying that Goldstein had confessed to him while they were incarcerated together in the Long Beach, California city jail.

Ultimately Goldstein won his freedom on a writ of Habeas Corpus when it came out that Fink had perjured himself by denying that a promise of favorable treatment had been made or that he had received such treatment in the past for similar jail house “confession” testimony.

Fink was well known by the Long Beach police and other prosecutors as a jail house snitch but allegedly not known by the deputy district attorney handling Goldstein’s case.

The Ninth Circuit Court of Appeals ruled that Goldstein’s suit for civil damages against the District Attorney and his chief deputy could proceed since their failure to set up a proper index disclosing a witness’s status and the promises made to him or her was administrative and not intimately connected to the Goldstein prosecution. Therefore Goldstein’s right to due process had been violated. This case has been appealed to the Supreme Court which has placed it on its calendar of cases to be heard.

However it will only hear the issue of qualified immunity as it relates to administrative duties and not absolute prosecutorial immunity.

It seems that there should not be absolute immunity for a prosecutor who either deliberately or with wanton disregard for the truth or falsity thereof offers false evidence or suppresses relevant evidence in a criminal trial.

The policy reason given for absolute immunity is that it would require prosecutors to spend too much time defending themselves civilly and thus take them away from their main prosecutorial functions. This argument sounds hollow. This is particularly true in the light of recent studies such as the Benjamin Cardozo Law School Innocence Project which found that based on DNA studies 154 innocent people have spent time in prison. In many cases the convictions of the innocent were the result of prosecutorial misconduct.

Prosecutors should only be accorded qualified immunity in all cases even those functions intimately connected with the trial of a particular case.

In doing so decent hard working prosecutors as well as the innocent will be protected from those who would build a career and reputation on the conviction of the innocent using false evidence or suppressing relevant evidence.

A notorious case of prosecutorial misconduct in recent years was that of Michael Byron Nifong. Nifong charged white, Duke Lacrosse players with the sexual assault of a black woman who was working as an escort, prostitute, and stripper. At the time he was running for district attorney in a county with a large black population

Nifong was later disbarred and dismissed as a prosecutor after it was determined that he never interviewed the accuser who changed her story at least six times, used photographs for identification that only depicted Duke Lacrosse players and failed to timely provide defendants with exculpatory DNA evidence.

The three Lacrosse players ultimately charged spent over three million dollars defending themselves against the false accusations which also had national and international publicity. Had the players not had the resources to defend themselves, as is the case in so many prosecutions, Nifong might have gotten away with his conduct perpetrated to help his election as district attorney.

He did win election as district attorney but has been since dismissed. He now has taken bankruptcy to avoid the consequences of a civil suit brought by the falsely accused. He may not have absolute prosecutorial immunity since many of his actions were administrative or investigative and not intimately related to prosecution of the Duke players.

However his case shows how a corrupt prosecutor can suppress evidence or manipulate evidence to enhance his reputation and electabilty over his honest opponents. Nifong is a good example of how a corrupt prosecutor can advance his career by the prosecution of the innocent and a defining reason why there should be no absolute prosecutorial immunity

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