Will Activist Supreme Court Preserve Absolute Immunity For Prosecutors?

Posted by Enrique on 11.11.2009

Strict interpretation...



As usual, it's a dark time for the empire. The U.S. unemployment rate stands at 10.2%. A crazed military psychiatrist (allegedly) murdered 13 people at Fort Hood because God told him to. The House of Representatives have passed a health care reform bill that gives the federal government even greater control over Americans' medical decisions. The voters of New Jersey have elected a Republican governor. Everything is seemingly spinning out of control.

In all the excitement, it was easy to miss out on a terribly interesting case that was argued before the Supreme Court last week. In Pottawattamie County v. McGhee, the Court was tasked with the question of preserving a legal privilege created by activist judges that has no basis in the U.S. Constitution. Based on the oral arguments, you may be surprised which justices appear to favor judicial activism.

The story so far…

As you may be aware, prosecutors at all levels of government are always under pressure to uphold law and order by obtaining a high conviction rate. Because they are such an asset to the criminal justice system, they are typically immune from civil lawsuits when they improperly convict someone. Many patriotic Americans don't see much of a problem with "absolute immunity" because they believe that without it, prosecutors might not be able to adequately protect us from dangerous criminals. That is, many Americans don't particularly mind preserving a situation in which government officials who hold the power of life and death in their hands don't have any disincentives to abusing it.

Perhaps twenty years of "Law and Order" on NBC have dulled our senses to the possibility prosecutors with less moral fortitude than Sam Waterston may overreach in their authority. Case in point – in 1997, a retired policeman and security guard was shot dead at the car dealership where he worked in Council Bluffs, Iowa. Two teenagers named Curtis McGhee and Terry Harrington were convicted of the crime, and served more than 25 years. Thing is, they didn't do it. And the local authorities knew damn well they didn't do it:

Pottawattamie County prosecutors David Richter and Joseph Hrvol presented a case that rested almost entirely on the testimony of a 16-year-old kid who was caught stealing cars and offered a $5,000 reward if he provided information about the murder. The witness misidentified the murder weapon, changed his story multiple times and fingered two other men before naming McGhee and Harrington in the crime. He even had to be coached by prosecutors about what to say during the trial so that his story matched the evidence. Richter and Hrvol revealed none of this at trial, nor the fact that they had previously suspected another man — one who had been positively identified by an eyewitness and had failed a polygraph test.

God only knows what the hell motivated these douchebags to ruin the lives of two teenagers, but the question before the Supreme Court wasn't whether or not Richter and Hrvol are assholes. The question was if they can be sued for being assholes who knowingly fabricated evidence and stole 25 years from the lives of two young Americans. You can read the full transcript of the Pottawattamie oral arguments here (PDF, 74 pages). Although it's a bit of a dry read, there's always amusement to be derived from the Court subjecting nervous lawyers to tedious questions, routinely interrupting their arguments and generally making fools of them. And occasionally, the justices make fools of themselves. The conservative wing of the Court is viewed by its supporters as a bulwark against the activist inclinations of the progressive wing. In the case of Pottawattamie, the roles seem to have been reversed. Absolute immunity, like the right to privacy, is a creation of judicial precedent; it's not anywhere to be found in the text of the Constitution. Yet it was the progressive wing of the court that appeared to express more concern about this invented right than the purported conservatives.

Because of the bizarre quirks of federal jurisprudence, the lawyers for Pottawattamie County found themselves in the unenviable position of arguing that prosecutors should face no civil penalties, even in cases where they fabricate evidence with malice aforethought. Joining them in this preposterous argument was Obama administration Deputy Solicitor General Neal Katyal, who had this exchange with Obama-appointed Justice Sotomayor (p. 21):

MR. KATYAL: No, what I'm saying and what this Court's decisions have said is that absolute immunity doesn't exist to protect bad apples. It reflects a larger interest in protecting judicial information coming into the judicial process. And 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. And that is the distinction between the police officer, who is liable, and the prosecutor, who is -- who is absolutely immune.

JUSTICE SOTOMAYOR: A prosecutor is not going to flinch when he suspects evidence is perjured or fabricated? Do you really want to send a message to police officers that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?

This is, of course, the bloody obvious downfall of absolute immunity. A prosecutor who can't be sued for malfeasance has little reason to be concerned about how he/she investigates a case. The fact prosecutors will have to worry about liability for every act they take would be a feature, not a bug. Government officials with the power to use force to dramatically change the course of someone's life goddamned better be worried about their liability. It might help prevent situations like Pottawattamie from occurring.

Some of the justices were a little more sympathetic to Katyal's argument. Bush appointees Alito and Chief Justice Roberts both appeared to share Katyal's worry about prosecutors being discouraged from carrying out their duties. On page 35, Roberts says, "we're concerned about the chilling effect on the prosecutors." So-called originalist Justice Scalia expresses a similar concern about "the deterrent effect upon the prosecutor" on page 44.

Oh, please. You'd think the respondents were asking the Court to allow lawsuits against prosecutors for looking at defendants cross-eyed. As Reason magazine's Radley Balko points out, from a legal standpoint, any concern about a chilling effect is hard to take seriously:

The amount of liability the would-be plaintiffs in Powattattamie want prosecutors to shoulder is minimal. The Supreme Court has held for 30 years that even prosecutors who knowingly withhold exculpatory evidence in a case that results in the conviction of an innocent person can't be sued for damages. The wrongfully convicted men in Powattattamie aren't even seeking to undo that. They're asking that prosecutors who knowingly fabricate evidence against an innocent person, then use that evidence at trial, be susceptible to a lawsuit. And even there, prosecutors would still be afforded the qualified immunity given to police officers, which means potential plaintiffs would still have a high hurdle to clear before getting into court. (It's worth noting that the prosecutors in Powattattamie weren't sanctioned or disciplined in any way, which is about par for the course in the criminal justice system.)

Balko goes on to note a great point made by McGhee's attorney Paul D. Clement, who closed his argument with a direct appeal to an originalist interpretation of the Constitution, saying, "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 and it lacks support at the common law."

While the Court has been asked to decide the limits of immunity for prosecutors, a better question might have been, "Is absolute immunity constitutional at all?" Makes you wonder if absolute immunity has anything do with America's astronomically high incarceration rate. Maybe it's time we worried a little less about prosecutors getting convictions and a little more about protecting Americans from overzealous government officials operating with unchecked authority.