XX Factor: the blog

Even the Worst Prosecutors Can't Be Sued—and That's the Way It Has To Be

Supreme Court followers (and NPR listeners) heard an outrageous story today—that of an innocent man who spent more than two decades in prison for a murder he didn't commit before evidence of the apparent gross racism and misconduct of the police and prosecutors who put him there was uncovered. It's hard not to crave justice for this man—but what seems just for him will make justice less likely for everyone else.

Lawyers for Terry Harrison have argued that although it's long been clear that prosecutors cannot be sued for doing their job—for actually prosecuting a defendant for a crime—there is no immunity for investigative activity. Harrison claims he can sue his prosecutors for their participation in what was at best a botched investigation and at worst an outright conspiracy to arrest the wrong person for the crime. In other words, he's not suing them for prosecuting his trial, he's suing them for helping to put him in a position to be tried in the first place.

Listening to the facts—which include a star witness coached to lie and the withholding of evidence against another suspect and are soaked in racist implications—it's hard not to want some revenge for Harrison. But to allow him to sue the prosecutors in his case for investigative activity would have one simple, immediate result across the country: no more prosecutors involved in investigating crimes. If prosecutors (lawyers all) can be sued only for activity that takes place before an indictment, then they simply won't get involved before an indictment—and that's not a good thing.

The more people involved in any investigation, the more likely it is that  the truth will be uncovered and that any laziness or corruption will be revealed—or at least stymied. Taking prosecutors out of that process would leave it entirely in the hands of the police, and the trouble there isn't that the police are more corrupt or lazy than prosecutors, it's simply that far more power—too much power—will rest in far fewer hands. More people, not fewer, will be wrongfully convicted if prosecutors are forced to step back from the early stages of an investigation.

I'm a former prosecutor, and I'm sickened by what happened to Terry Harrison. That's not the system I was proud to be a part of. But the practical effects of giving him his day in court go far beyond what's obvious when you first hear his story. I hope that some justice can be found for Terry Harrison, but a win in court today won't give him back the years he's lost. It will increase the practical chance that others will continue to find themselves in his position. Sometimes justice for one is simply not justice for all.

Tags: Supreme Court

KJ Dell'Antonia Former Manhattan lawyer and prosecutor, Xxtra Small reviewer, parent of four. Lover of books and bacon.

Comments

Making the victims whole

By: Kit-Kat | Fri, 11/06/2009 - 12:44

I agree that there should be a system in place to compensate victims of police and prosecutorial misconduct for wrongful imprisonment. Some states have laws in place that provide for such compensation, but apparently Iowa is not one of them. I think that system would serve two purposes--if a defendant can show that he or she was wrongfully imprisoned as a result of misconduct by law enforcement, he or she is compensated for time lost and given the means to start a new life. Also, if the state finds that it is paying out too much money for these cases, it is likely to put pressure on law enforcement to remove bad actors or fix bad policies--it gives that state a financial stake in reducing law enforcement misconduct.

Robust ethical investigations and sanctions

By: nottobin | Thu, 11/05/2009 - 12:06

While I agree that with Kit-Kat that robust ethical sanctions may be a good deterrent for prosecutorial misconduct, I think that leaves out the other half of the equation -- making the victim of that conduct whole. Maybe personal civil liability isn't the best solution, but in the absence of others, it is better than nothing.

is framing someone for murder worse than murder itself?

By: you know it is | Thu, 11/05/2009 - 13:30

There's an arguable case that framing someone for murder is as bad as or worse than the act of murder itself. The actual perpetrator of the murder goes free, someone innocent gets their life taken away, and, unlike a murder where the societal ill effects are relatively contained, the harm done by framing someone for murder propagates far and wide and is long-lasting because the justice system itself is corrupted.

There is an argument for more severe penalties for the murder of a police office in the line of duty based on the fact that there is greater harm due to the attack on the system of justice which maintains social order itself. In the same way, when a prosecutor within the system deliberately sets out to convict an innocent person, it is an attack on the institutions that are responsible for law and order in the society.

The legitimacy of the state rests on the legitimacy of the justice system. If the justice system is not acting in good faith, as a matter of practice no one has any reason to obey the law or accord it any respect, and some might argue that certainly any moral obligation to cooperate with society is waived if the system doesn't play fair. It is the fact that the justice system actually intends to carry out justice which gives the state some legitimacy beyond "might makes right". When that legitimacy goes, any reasonable claim to moral authority is lost.

Addendum: I should note that I am talking about framing carried out by the justice system itself as opposed to by a third party.

If it's fair game for criminal court, why not civil?

By: auros | Wed, 11/04/2009 - 19:57

igardner already noted that it sounds like the prosecutor in this case suborned perjury. It seems absurd that the prosecutor should be immune from being sued for harm caused by criminal conduct. Don't we generally consider criminal courts to be a "higher grade" or more "serious" type of court? If your actions are such that you can be dragged into a criminal court, surely being dragged into a civil court is the least of your concerns?

Perhaps we should have a rule in place that uses this as a bright line. If your prosecutor suborned perjury, and is duly convicted of it, then the state has the right to take his assets and use them to give you recompense for lost income and other damages. Maybe you even have to sue the state, and there's some kind of special modification to the suit to recognize that the damage award can, in part or full, be drawn from the prosecutor's assets.

incentives in the justice system

By: you know it is | Wed, 11/04/2009 - 18:45

It's worth noting that there's also no incentive for juries to return just verdicts. It's a prosecutor's prerogative to bring an obviously false case, and it's the jury's prerogative to convict if they feel like it, even when they know the case is bogus, and there are no negative consequences to either and also no recourse. And, in the case of a jury verdict, not even an appeal (unless it's "patently unreasonable", but that leaves out many, many jury verdicts where there has clearly not been a reasonable good faith attempt at a just verdict).

I think that prosecutors may

By: Kit-Kat | Wed, 11/04/2009 - 18:14

I think that prosecutors may fear being sued any time a defendant is acquitted, or later shown to be innocent, which can happen to even the most ethical prosecutor. They might be able to defeat such a lawsuit, but even the fact of being sued is a deterrent because of the costs associated with it and the fact that it would be such an easy nuisance suit. But absolutely prosecutors should be involved in investigations, to ensure that police follow the law and that the investigations result in credible, admissible evidence.

If there were robust ethics investigation by state bars, with real sanctions, including disbarment, handed out for violations, I think the problem would be addressed. Most prosecutors I know are very keen to keep their bar license, which represents their means of earning a living. But the problem I see is that either bar associations aren't enforcing the rules with sufficient vigor, or they aren't publicizing such enforcement enough to create public confidence.

I also think that electing DAs creates fairly perverse incentives, since a DA eager to win re-election might encourage shortcuts and misconduct among his or her staff, especially on high-profile cases.

due process?

By: you know it is | Wed, 11/04/2009 - 18:02

There's no free-standing right not to be framed? I will concede that I'm neither American, nor a lawyer, let alone an expert in American constitutional law, but I was under the impression that from the words "due process" in the 14th Amendment flow the right to not have the government arbitrarily kill you, as well as the right to consensual sodomy between adults, as well as vague rights to "liberty" and "privacy".

Given that "due process" gives rise to all those things, it would be odd if it didn't also imply the right to not be framed, especially since that falls under the words "due process" as they're normally understood, unlike sodomy and privacy.

I would think that a prosecutor who intentionally fabricates evidence is depriving the defendant of the right to a fair trial.

I don't buy this argument

By: nottobin | Wed, 11/04/2009 - 16:37

I don't buy this argument. By the same logic, we should never hold government officials accountable for constitutional violations they commit while doing their jobs. Otherwise, the logic would go, they'd no longer do their jobs. But that's obviously not true. Police, for example, continue to investigate crimes even though they can be liable for violations they commit during the course of the investigation (subject, of course, to qualified immunity, which limits liability essentially to blatant violations). They haven't stopped engaging in high-speed chases, conducting warrantless searches, or sending informants into dangerous situations, all activities that, depending on the circumstances, can give rise to liability. Presumably, they haven't stopped because those things are part of their job. I don't see why we wouldn't expect prosecutors to keep doing their jobs as well, including the part that includes being involved in investigations, just because liability might arise. Rather, maybe they'd just do their job in a way that avoids things like coaching witnesses to perjure themselves, etc. that are obvious constitutional violations. And that would be a good thing.

That's not to say there's not a good argument for absolute immunity to extend to prosecutorial involvement in investigations. This just isn't it.

Disbarrment

By: jenellen1214 | Wed, 11/04/2009 - 13:54

If this prosecutor is still practicing, they really should look into disbarring him for gross misconduct, if what I heard on NPR this morning is true. I was absolutely incensed by this story, and the legal hairs that the prosecutor's attorney intends to split in front of the Supreme Court today when he argues this case. I am a licensed lawyer but have never practiced, and it's stories like this that confirm to me that my decision was a good one. Our society needs lawyers to stand up early and often, when they witness injustice, to say that it is morally and ethically unacceptable and intolerable. I also understand why prosecutors shouldn't get sued, but someone really needs to pay for what was done to this poor man, and if not the prosecutor then who?

suborning perjury

By: igardner | Wed, 11/04/2009 - 12:47

If a prosecutor puts a witness on the stand knowing that he is lying, isn't that suborning perjury? And isn't that against the law? Prosecutorial immunity clearly extends to civil trials so they can't be sued, but couldn't the state prosecute the prosecutor for suborning perjury?