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Legal Immunity for Prosecutors-Why?

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Thursday, April 16, 2009

New York City, New York



If you have followed the criminal case of former US Sen. Ted Stevens from Alaska, a title of a future book or video could well be titled “prosecutors gone wild.” Stevens was convicted of accepting gifts from campaign supporters. But key notes taken by an FBI agent that would have significantly helped the Stevens defense were purposely kept from his defense team. He was defeated in a close election just a few days after the verdict was rendered. Federal prosecutors failed to follow basic rules of fair play. The federal judge in the case has ordered a full criminal investigation of the Justice Department employees involved. So is this an anomaly where prosecutors violate the law, and something like this rarely happens? Far from it. Prosecutorial misconduct, specifically withholding evidence that favors the defendant, has become almost a fact of life in the federal judicial system.

Misconduct by those who were charged with seeking justice is nothing new. The Old Testament book of Ecclesiastes makes a pretty clear case for the fact that injustice has been around for a long time. “I have seen under the sun that in the place of justice there is wickedness, and in the place of justice and equity. Do not be shocked at the site where justice has been denied.”

When the key FBI notes were finally given to Stevens’ defense team after the Senator was convicted, Stevens’ counsel had this to say about the actions of the prosecutors: “When we were finally given the notes, you might have thought my reaction would be to celebrate, do high-fives, that we were right. But it was not like that at all. I was sick to my stomach. How could they do that?”

It has also become clear that the failure to turn over key notes by the federal prosecutors was not merely an oversight. An FBI agent has now come forward and said in a sworn affidavit the he sat in on meetings where Stevens’ prosecutors were clearly aware that they were ignoring their professional obligations to turn over key notes that would have helped the defense counter the criminal charges.

Stevens’ case would seem to be the latest example of vengeful prosecutorial overreach. A little research starkly shows that the Stevens case did not occur in a vacuum and should not be treated as isolated instance. Numerous recent cases abound showing federal prosecutors overstepping the boundaries of fair play, often in direct violation of the law.

Louisiana is not immune from prosecutors on both the state and federal level purposely withholding key evidence that would help the case of the accused. One can Google names like John Thompson, Dan Bright (both convicted and put on death row when evidence that was withheld eventually cleared them), and some former insurance commissioner whose name slips by me, that gives case studies of how prosecutors abused the judicial process. The question is, why do they do it? The obligation to turn over exculpatory evidence is basic law, and something every prosecutor understands. It’s the “gotchya “ mentality. An outsized desire to win at any cost.

But that’s not the prosecutor’s job. As federal appeals courts have said repeatedly: “A prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials. Prosecutors sometimes forget that the prosecutor’s special duty is not to convict, but to secure justice.”

So if we have so many examples of prosecutorial misconduct and outright criminal behavior, why do we rarely see those at fault ever being charged as criminals themselves, or being on the end of lawsuits brought by the victims of such abuse? Both the legislature and congress have bestowed immunity to those privileged to work in the “justice” system. The courts have ruled, according to Prof. Andersen,  that “prosecutors are absolutely immune for anything they do that is considered within the lines of their official duties.”

Here is what the courts seem to be saying: judges and legislators are not willing to expose prosecutors to legal liability because it might “distract” them from their work or make them legally vulnerable. In effect, that they should not be subject to the very legal process that they force upon the rest of us. They are telling us they cannot trust the system to do what is right if THEY are sued. The same prosecutors who drag us into court, who charge us with often ridiculous “crimes,” and who impose judgment after judgment on us, cannot possibly be expected to face the same system that governs the rest of us, as it might “distract them from their duties.”

So all Americans are supposedly equal, but prosecutors are apparently more “equal” than the rest of us. Is this a legitimate concern, or merely the exercise of raw power where only “winning a conviction” matters? A recent study of widespread prosecutorial misconduct was done by Dr. William Anderson at the University or Maryland. After extensive research, he concludes that: “It is not enough to say that lawsuits would “distract” these prosecutors from their duties (as claimed). After all, everyone outside this “justice” system faces such lawsuits. And the courts have ruled that such lawsuits are fine. When a prosecutor actually does face some small consequences for criminal behavior, we are told that it is “extraordinary.” Wow. A prosecutor lies in court, hides evidence, foists a major frame on innocent people, and we are supposed to believe it is “extraordinary?”

The fundamental proposition of equal justice under law was expressed in the Declaration of Independence by our founding fathers. There was no discussion of carving out exceptions to be used, and often abused, by prosecutors. Taking away legal immunity and making these public officials subject to the same sanctions that the rest of us face would be a good step in restoring confidence in a judicial system that has been tainted way too often. As the poet said many years ago: “It is just as well that justice is blind; she might not like some of the things done in her name if she could see them.”

Peace and Justice.

Jim Brown

. You can read Jim’s Blog, and take his weekly poll, plus read his columns going back to the fall of 2002 by going to his own website at http://www.jimbrownla.com.

8 Responses
  1. David Abramson

    This horrific behavior with immunity on the part of prosecutors is tyranny, plain and simple, in principal no different than the king commanding arbitrarily, “off with his head.” And isn’t the escape from this injustice what drove the founding fathers to form the United States? This travesty is anti-American, and must be addressed urgently to restore the honest administration of the American justice system.

    As always, Jim, you present articulate, powerful, advocacy of vital issues. Thank you.

    David in New York City

  2. Charlie Friedman

    I. know where you are coming from. I have seen prosecutors use their unlimited legal resourses to do illegal things and I am sure many Americans also have. It is a shame that a person has to spend everything he has worked for his whole life to defend himself against unfounded and malicious charges just for the sake of prosecutors putting another noch on their guns.
    The land of the free anint so free any more.

  3. Tom Aswell

    Jim, you forgot to mention the Duke LaCrosse players. If I’m not mistaken, the D.A. in that case was not only disbarred, but prosecuted for abuse of his office. Also, like him or not, Bob Odom was also defeated for re-election, largely because of prosecutorial misconduct. John Grisham’s only non-fiction book was about a man convicted of rape/murder in Oklahoma and who spent several years on death row before the obvious suspect, ignored by prosecutors in their zest to “get their guy,” was found to be the actual rapist/murderer. What happened to the man originally convicted? Well, he was freed, but was already dying of cancer by that time. The prosecutors? No reprisals there; life goes on for them. They go home to their families every night, secure in the knowledge that they’ve built an impressive conviction rate for their next election.

  4. Don W.

    Jim, it is my understanding that one of the courses a law student is required to master before he or she graduates is legal ethics. Its obvious this course and a semester of learning to be just plan honest and fair is needed in our law schools. Thanks for your on time columns,

    Don W.

  5. Edwin Allman

    I have also heard about the Commissioner of Insurance whose name “slips” by you and I believe, like you, that he was an obvious victim of prosecutorial misconduct. I guess the question is, where do we start? What steps do we need to take, and in what forum, to ensure that prosecutors do not abuse their office?

    Thanks for an enlightening, and timely, message.

  6. Joe Reynolds

    It seems that there is not a great deal of difference between the reporter in jail in Iran and an Insurance Commissioner in jail in Louisiana.
    The United States Justice Gestapo is alive and well A lot of boys in WWII died to prevent us from speaking German as our common language and to insure a freedom from unjustified prosecution.
    Shouldn’t our Justice department be accountable for their actions?
    How do we fix it?
    If we don’t we just as soon label the Justice Department as the US Gestapo Justice Depatment.
    Those boys didn’t feel they were giving their lives to have Justice Denied.

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