Protecting their own

As I was looking through my Google Reader on Wednesday, I happened upon a post on Grits for Breakfast in which Scott Henson questioned why prosecutors enjoy absolute immunity for their misdeeds while peace officers  are only granted "qualified" immunity.

Mr. Henson linked to an article by Erwin Chemerinsky, the dean of the UC-Irvine Law School and a constitutional law scholar, in which Mr. Chemerinsky looked at two recent US Supreme Court cases in which the high court ruled against exonerated citizens seeking recompense for the time they spent locked up on wrongful convictions.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct. 

There is a serious problem in this country. Our criminal (in)justice system, through the erosion of defendant's constitutional rights and admission of junk science, has locked away hundreds of people whose convictions were later overturned -- not through the appeals process but through the filing of writs. The vast majority of these convictions were overturned when DNA tests (not available, or performed, at the time of trial) revealed that the person convicted for the crime was not the person who committed the crime.

In many of these cases prosecutors withheld evidence that may have led to a different result. In many cases these constitutional violations were intentional. And, in most of those cases, the prosecution had multiple opportunities to correct the error but chose not to.

To answer Mr. Henson's question "why" prosecutors enjoy absolute immunity from lawsuits alleging misconduct, we have to look at who's making the rules. Now I can only speak about Harris County but the vast majority of criminal judges at 1201 Franklin came from the Harris County District Attorney's Office. I am quite certain this is not a phenomenon unique to southeast Texas.

Judges already have a hard enough time believing that police officers beat suspects without reason and lie in their reports and on the stand. These judges have a hard enough time believing that eyewitness testimony is inherently unreliable and that forensic evidence is often of dubious provenance. Many of these judges have a hard time believing that a defendant is innocent unless proven guilty beyond all reasonable doubt (if you have any questions, just look at the bond conditions imposed on some defendants). Why on earth would one of these judges believe that prosecutors behave badly?

Why would a judge believe that the prosecutor who walks into her courtroom everyday was capable of withholding exculpatory evidence? Why would a judge believe that her former colleagues intentionally violated the constitutional rights of criminal defendants? Why would a judge who campaigned as being "tough on crime" believe that "her" prosecutors breached their ethical duty to see that justice was done?

And why would anyone on the bench care about the person freed from prison years later for a crime he didn't commit? Why would they care about the years he lost? Who cares whether he can pick up the pieces of his shattered life and start over again? That's not the judge's problem. He had a trial. So what if the jury got it wrong due to prosecutorial misconduct? So what if the jury got it wrong because of junk science?

If he wasn't guilty of that one, he was probably guilty of something else, right?