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Radley Balko has a column at Reason about the recent oral arguments in Pottawattamie v. Maghee, the Supreme Court case considering the question of prosecutorial immunity. The Obama administration is taking the absolutely ridiculous position that prosecutors should have absolute immunity from being sued even if it can be proven that they deliberately withheld or manufactured evidence, resulting in an innocent person being convicted.
Meanwhile, the other side is being argued by none other than Paul Clement, who was the Solicitor General for George W. Bush. Clement is an astonishingly good appellate advocate, quite possibly the most accomplished advocate to practice before the court in a generation or more. And it appears that he shredded Obama's guy in front of the court - with a little help from our newest justice:
During the hearing, Deputy Solicitor General Neal Katyal argued that "if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence." Katyal made similar statements throughout the hearing: "When someone is introducing evidence at trial, you don't want to chill them in the performance of their duties in any way," and "the overriding interest is protecting the judicial process and not letting information be chilled and not come in." Chief Justice John Roberts underlined that formulation, twice inquiring as to the "chilling" effect of stripping immunity for prosecutors.It took new Associate Justice Sonia Sotomayor to make the obvious point: We want prosecutors to "flinch" before introducing evidence they suspect might not be true. In fact, we want them to not introduce that evidence at all. And there should be a chilling effect on misconduct as egregious as coaching witnesses to lie. If Brett Grayson had known he could be held liable for his parade of lying jailhouse snitches, perhaps he'd have vetted their stories a bit more carefully, or been more vigilant about ensuring that portions of his case file didn't somehow get passed around the prison system.
Clement turned originalism back on the court's conservatives:
Clement's toughest questioning came from the Court's two Bush appointees, Chief Justice Roberts and Justice Samuel Alito. But Clement rather brilliantly concluded his time with a direct challenge to the two Bush-appointed justices that probably won't affect either's ruling, but at least ought to make them squirm. Keeping prosecutors immune from liability, he argued, is a classic case of judicial activism.The phrase "absolute immunity" appears nowhere in the Constitution, nor does it appear in Section 1983, a part of the federal criminal code that provides a way for citizens to collect damages against the government. The Court read absolute immunity into the law in the 1976 case Imbler v. Pachtman because it feared the ramifications of prosecutors being susceptible to lawsuits. As Clement argued, there is "no common law support at all for absolute immunity. And I wouldn't think that this Court was particularly interested in coming up with implied immunities that aren't in the statute and had no basis at the common law, and that's why I think some of the Justices that have looked at this as an original matter have tended to be quite reluctant in recognizing absolute immunity because it lacks support in the text."
So while for most of the hearing the Court and litigants took absolute immunity as a given and debated whether and how to carve exceptions into it, Clement concluded by pulling the sheet back on absolute immunity, period. In doing so, he cleared a path for the justices to revoke absolute immunity altogether, or at least severely limit the concept. That almost certainly won't happen. But it should (but probably won't) give the Court's conservative wing some cover to at least poke enough holes in prosecutorial immunity to discourage the more egregious examples of misconduct.
And bear in mind that this case involves a prosecutor who didn't just withhold evidence that might have exonerated a defendant, he actually fabricated evidence, suborning perjury through the use of jailhouse snitches he knew were unreliable. If the Supreme Court refuses to allow legal consequences for that, there simply aren't any limits on what a prosecutor can do.
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How the conservatives on the SCOTUS vote and justify that vote should more clearly reveal how this batch of conservative justices draws the line between their politically conservative political objectives versus their self-proclaimed reliance on conservative-based jurisprudence. Approaches which frequently contradict each other.
Posted by: Michael Heath | November 13, 2009 9:13 AM
Although one can't know with certainty how Justice Sotomayor is going to vote on this case, if her comment reflects her position, then the fear which was voiced on this blog during the confirmation process that she would be too pro-prosecution may turn out to be wrong.
Posted by: SLC | November 13, 2009 9:40 AM
I'll never understand this (apparently) conservative idea that getting any man is as good as getting "your man." So many of them seem to be willing to lock up and even execute innocent people;guilt appears to be irrelevant or at least nowhere near as important as punishment. It seems almost sadistic at times, like they're willing to go out and find some poor bastard as a fall guy simply to close the case. I have students every year who basically say, "so, they probably did something wrong that they got away with before, so what's the big deal?"
I really don't understand that mindset. Not only are they convicting an innocent person, setting them up, sending them to prison, executing them, they're letting the actual guilty party go free!?!?!?
Posted by: dogmeatib | November 13, 2009 9:48 AM
dogmeatib, #3:
I've always had the suspicion that conservatives have an ancient tribal notion of "justice": a crime has been committed and now the natural order has been upset, and to set the universe back on course a human sacrifice, any sacrifice, is necessary to appease the gods. They may not be conscious of this themselves, but, as you say, there must be something behind their desperation to punish someone.
Posted by: Chiroptera | November 13, 2009 9:53 AM
Chiropera, #4
What it puts me in mind of is Thomas Paine's observation that the notion of redemption as conceived in christianity is one based on pecuniary, rather than moral, justice.
Viewed through the lens of a worldview that assumes that a massive moral wrong (like, say, the sins of all mankind) can be essentially expunged by nailing one poor, innocent bastard to a tree, it begins to make a perverted kind of sense. It's still stupid; but at least now I have a little box I can put it in.
Posted by: MissyAnne Thrope | November 13, 2009 10:12 AM
SLC @ 2:
Nice catch. This case might reveal defining evidence of what to expect from J. Sotomayor regarding her willingness and ability to defend the Constitution vs. promotion of her past loyalties.
Also, it was not mere "fear" in this forum that J. Sotomayor would be too pro-prosecution, instead there was empirical evidence arguing for concern. One of her primary sponsors, VP Joe Biden, was spreading the word she'd be pro-law enforcement to the point she'd be their champion on the Court. In addition, her prior record was one strongly aligned with pro-law enforcement objectives. Her new position allows optimal independence, therefore her position in this case could be extremely revealing.
Posted by: Michael Heath | November 13, 2009 10:15 AM
Great example of what makes Clement is such a good advocate. I hope he's successful with this case.
@Chiroptera #4
That's a very interesting way of looking at it. I think you may have something there.
Posted by: Abby Normal | November 13, 2009 10:19 AM
Chiropera, #4
Couldn't agree more. A scapegoat is a scapegoat, some at retail level, some at wholesale.
Posted by: Yeti | November 13, 2009 11:38 AM
Isn't Katyal the brother-in-law of the guy who smeared Sotomayor in The New Republic?
Posted by: bullfighter | November 13, 2009 12:17 PM
Re Michael Heath
The interesting thing here, assuming that Justice Sotomayor and the three "liberals" vote the way she seems to be leaning, will be what influence she will have on Justice Kennedy, who would be the deciding vote on this case. In the past, Kennedy was often influenced by former Justice Sandra Day O'Connor (I believe that one of the books on the Supreme Court claimed that she convinced him not to vote to overturn Roe vs Wade).
Posted by: SLC | November 13, 2009 12:38 PM
dogmeatib et al: While I agree with your frustration, there is no real deep philosophical basis for the prevalence of this view among conservative judges; it is merely a result of their purposefully shallow reading of the Constitution, their refusal to recognize intent, and their dedication to judicial absolutism.
To put it simply, in their eyes the Constitution does not guarantee justice, it guarantees process. You get a trial by your peers, oversee by a disinterested judge. You get a defense attorney, the best your money is able, or your community is willing, to provide. You get some form of appeal, at least one to the state and one to the federal circuit. And that's about it. If, even after going through this process, you are not found innocent, even if evidence exists (like DNA, or the exposure of fraud on the part of the prosecutor) that points to you being innocent, then you stay in prison. According to their "literalist" reading of the constitution, process, not justice, is what you have a right to.
Posted by: Julian | November 13, 2009 12:52 PM
Julian "...even if evidence exists (like DNA, or the exposure of fraud on the part of the prosecutor) that points to you being innocent, then you stay in prison."
Nowhere in the Constitution does it mention "DNA". The Prosecution rests, your honor. (That was from an episode of Modusoperandi, Originalist Lawyer)
Posted by: Modusoperandi | November 13, 2009 1:08 PM
Our legal system is still largely one based upon the common law. As such, judges will inevitably "legislate from the bench," subject to correction by legislative action in cases not based upon the Constitution. Legal defenses such as official immunity, privilege, and the like all originated in the common law. I do not question the legitimacy of the Supreme Court's creation of legal defenses such as immunity and privilege that find no support in the original text of the Constitution or statutes such as 42 U.S.C. Section 1983. The Court has assumed, correctly, that the Constitution and federal statutes were written against the backdrop of the common law and that if the drafters of the Constitution or the Congress had intended that such defenses not apply to particular types of claims based upon federal law, they would have said so. It's appropriate for the Court to continue to develop the rules governing such defenses as circumstances change over time, as the common law has done for centuries.
Having said that, the Imbler v. Pachtman rule of absolute immunity for prosecutors has always troubled me. As Clement pointed out, that was a great departure from the common law rule that afforded prosecutors only qualified immunity, i.e., immunity only for wrongful acts committed in good faith and with a reasonable factual and legal basis. The absolute immunity rule has resulted in terrible abuses and miscarriages of justice. The Court has the power to eliminate it and should do so. Ideally, Congress should enact legislative modifying the rule, but I don't see that as politically feasible. The Court can adequately protect prosecutors acting in good faith by imposing appropriate pleading standards for qualified immunity to weed out quickly on motions to dismiss the bogus, harassing claims that prosecutors face from angry jailhouse lawyers while preserving claims with some factual basis.
My guess is that the Court will, at best, narrow the scope of absolute immunity or creatively apply existing limitations on that doctrine to allow the action against the corrupt prosecutor in this case to proceed. For example, prosecutors do not enjoy absolute immunity for everything they do; only acts taken in their capacity as lawyers for the government in criminal prosecutions are immune. So-called "investigative" misconduct isn't always absolutely immune, so suborning perjury in interviews the prosecutor conducted outside judicial proceedings, such as the trial, grand jury hearings, depositions, and the like, could form the basis of liability without completely overruling absolute immunity.
Posted by: knutsondc | November 13, 2009 1:19 PM
Julian - I agree with you that process is a focal point with conservatives. I usually see that as a feature, not a bug. Without getting into whether they and others ignore justice to a fault, I think it is paramount that process be the focal point by an appellate court given they don't determine outcomes from an abstract perspective, but instead the trial courts do (I realize there are many exceptions which is why I define the perspective).
I think this issue is all about process and none about justice for a particular person. And as a lover of process, I'd strongly argue that the liberals ride the much bigger white horse. The process is clearly sub-optimal and in fact defective if there are no measurably commiserate consequences for prosecutors to knowingly distort findings of fact.
If the conservatives actually remain loyal to their jurisprudence, they'll vote against absolute immunity for the very reason you claim they place their focus. However, as I noted @ comment 1:
We shouldn't be surprised if the conservatives split on this case given that I can see CJ Roberts and J. Kennedy going with the left but can't imagine J. Alito doing so given he's always voted for the power structure.
Posted by: Michael Heath | November 13, 2009 1:22 PM
I have to admit that allowing prosecutors to be sued worries me. You say, only when they fabricate evidence... well, how is it determined that they fabricated evidence? Presumably at a civil trial which can take years to get through. Or how do you prove that you didn't withhold evidence? How do you prove that you didn't know that report existed? There will be lawsuits everywhere.
Posted by: Tom | November 13, 2009 1:59 PM
The state has to prove that you did. That's a bit different.
We're nothing if not a litigious society. Your fears have already been realized.
If I cede your point that lawsuits will increase, that's better than absolute immunity.
Posted by: Johnny Clamboat | November 13, 2009 3:30 PM
@SLC: As someone who voiced such fears (although with a focus more on police than on prosecutors), I hope you're right. But such issues can't possibly be resolved in one case, no matter which side she decides for. It's something we'll have to watch throughout her career.
@dogmeatib: Conservatism is based on a strong sense of traditional social order. An unsolved crime or a crime which takes a long time to solve is a threat to that order. People need to see someone punished, preferably in as gruesome a way as possible, lest others get ideas of committing crimes too. Since they view the purpose of "justice" as providing horrendous examples to deter others, the question of whether the correct person is being punished is irrelevant to them. They need to get the correct person often enough that the public assumes that the guilty person is probably being punished in any given case, but it's more important to them that justice be swift than that justice be accurate.
Posted by: Miko | November 13, 2009 7:17 PM
Miko "They need to get the correct person often enough that the public assumes that the guilty person is probably being punished in any given case, but it's more important to them that justice be swift than that justice be accurate."
Revenge delayed is revenge denied?
Posted by: Modusoperandi | November 13, 2009 7:23 PM
dogmeatib, #3 - I have students every year who basically say, "so, they probably did something wrong that they got away with before, so what's the big deal?"
May suggest an analogy to bring it home to them? Ask how many in the class have ever shoplifted anything in the past and were not caught - say, a candy bar when they were 12. For those who raise their hands, how many of them would find justice in being charged, tried, and convicted of armed bank robbery now?
Posted by: BobApril | November 13, 2009 7:51 PM
Just to cement the reasons prosecutors must be liable for their actions and inactions:
http://en.wikipedia.org/wiki/The_Innocent_Man:_Murder_and_Injustice_in_a_Small_Town
I just finished this. In the course of describing the utter railroading onto death row of a mentally ill man, Grisham described no fewer than five, possibly six, convictions of innocent men on murder charges due to incompetent defence, malicious prosecutorial conduct, and the politicization of trials in a system that elects both judges and prosecutors.
Two of the men, Tommy Ward and Karl Frontenot, are still in jail for life, and due to a bizarre legal hole cannot be released, even though their innocence is clear.
I'd be surprised if anyone read this book and came away unmoved. I'd be surprised if anyone came away without their faith in American justice unshaken.
I'd be astounded if anyone could read this and still with quiet conscience support the death penalty.
Posted by: Metro | November 17, 2009 4:43 AM