Removing prosecutorial immunity
If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!
Update: SCOTUS grants cert.
Original: As highlighted in this L.A. Times article and this Scotusblog summary, the Justices will announce tomorrow whether cert will be granted in Goldstein v. Van de Kamp [9th Cir. decision here]. Goldstein was released from prison after serving 24 years for a crime he did not commit.
Goldstein was ordered released after 24 years in prison after the sole eyewitness recanted and doubts emerged about a supposed confession by Goldstein to an informant. Years after his conviction, Goldstein learned that his jailhouse accuser — a three-time felon — had lied in court when he denied having received promises of special treatment from another county prosecutor in exchange for his testimony.
The lawsuit alleges that the prosecutor’s office failed to set up an intra-office system to disseminate information on the reliability of informants and because of that Goldstein was convicted based on false testimony from an unreliable informant.
The Los Angeles County district attorney’s office, the nation’s largest prosecution office, once made regular use of jail informants, but at the time it had no system for sharing information among prosecutors countywide about which informants were reliable and what they had been promised.
Van de Kamp, the chief prosecutor from ‘75 to ‘83 has claimed full immunity.
Prosecutors and some observers are all atwitter:
Regardless, the immunity rule should be preserved as an important judicial safeguard, [law prof] Levenson said. “We don’t want [prosecutors] looking over their shoulders. In order to be independent and to make tough calls, they can’t be worrying about whether they will be sued.”
I agree. For the most part. However, given the recent surge in exonerations, why is it not time to reconsider whether prosecutors can be sued in a limited set of circumstances? This seems doubly important given the reluctance of many states to enact compensation statutes for the wrongly convicted.
Consider the scenario where a prosecutor knowingly offers false testimony that leads to a wrongful conviction or hides Giglio material - or even Brady material. Why should that prosecutor (or the State) be immune from suit? Do we want to encourage that behavior? Does that assist in the pursuit of justice? Heck, defense lawyers are regularly sued by clients.
I understand that is not what the lawsuit alleges, but on this lazy Sunday afternoon, it is worth thinking about. What exactly are we protecting when we bar suits that seek to place blame with the appropriate person in appropriate circumstances?
Sphere: Related Content
Loading ...
At the VERY least, why do we not see prosecutors grieved, disciplined, reprimanded, made to take remedial ethics classes, etc. when THEY do something unethical? Is it our fault? Should we (defense attorneys) be filing grievances against prosecutors who (as in a case I have pending now) withhold exculpatory information? Should judges (a lot of them former prosecutors here in CT) be taking the lead in seeking sanctions? Why should they not be held accountable?
John,
You raise a very good point. If it is determined that a wrongful conviction was obtained because of prosecutorial misconduct (heck, even in cases where a conviction is reversed by an appellate court because of prosecutorial misconduct), does anyone have an obligation to file a grievance?
Is there a difference between prosecutorial misconduct and ineffective assistance of counsel? If not, what about a grievance when there is a finding of IAC?
Look at RPC Rule 3.8 (4) for instance:
(4) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
Or Rule 4.1:
In the course of representing a client a lawyer shall not knowingly:
(1) Make a false statement of material fact or law to a third person; or
(2) Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
And 8.3 and 8.4:
Rule 8.3. Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(1) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) Engage in conduct that is prejudicial to the administration of justice;
I think it’s a tough decision to make, but the answer may not be that unclear.
Putting all of that to one side, there is a huge reason why the immunity should not be changed, at least by the courts anyway, namely, settled expectations. Prosecutors have the immunity now, and it’s been around forever. If there is going to be a change, then convince legislators that there should be.