The Pittsburgh Post-Gazette/Ipso Facto
February 17, 2012
Claims of prosecutorial misconduct, although in the news, are rare and difficult
to prove. Even if proven, prosecutors may remain insulated from liability.
Absolute immunity protects prosecutors from liability whenever they are
performing the traditional functions of an advocate or are engaged in acts that
are intimately associated with the prosecutorial functions of the criminal
process. Absolute immunity extends not only to the decision to initiate a
prosecution by filing charges, but also to any duties of the prosecutor in his role as
In 2008, the late Alaska Senator Ted Stevens was convicted of corruption. A
year later, Attorney General Eric Holder dismissed the charges. Last week, U.S.
District Court Judge Emmet Sullivan ordered the release of a report that
outlined "the systematic concealment of significant exculpatory evidence" and
"widespread and at times intentional misconduct" by Justice
Department prosecutors during Steven’s trial.
Last March, the U.S Supreme Court reviewed the conviction, exoneration and
civil award to John Thompson, a Louisiana man wrongfully convicted who spent 18
years on death row. A civil jury found that New Orleans District Attorney Harry
Connick, Sr. failed to train his prosecutors on their obligations to turn over
documents and awarded Thompson $14 million.
In a 5-4 opinion written by Justice Clarence Thomas, the verdict was
reversed, finding that a single violation did not establish a pattern of
Last month, a Texas district judge recommended that the Texas Supreme Court
convene a court of inquiry to investigate possible prosecutorial misconduct in a
case prosecuted by Williamson County District Attorney Ken Anderson, now a
district court judge.
Attorneys for Michael Morton, who spent 25 years in prison before being
cleared by DNA, allege that Anderson failed to turn over evidence that could have
helped show that Morton did not beat his wife to death.
Last week, a North Carolina judge ordered Durham County District Attorney
Tracey Cline suspended pending the outcome of a hearing into allegations that
Cline engaged in conduct prejudicial to the administration of justice. Cline allegedly engaged in attacks against a Superior Court
judge who ruled prosecutors intentionally kept information from a defendant
who wrongfully spent 12 years behind bars. Cline succeeded Mike Nifong who was
removed from office following the failed prosecution of members of the Duke
The U.S. Supreme Court has acknowledged that absolute immunity may have
significant consequences for some aggrieved parties.
In 1976, the high court found that absolute immunity may "leave the genuinely
wronged defendant without civil redress against a prosecutor whose malicious or
dishonest action deprives him of liberty." Regardless, absolute immunity is
vital, “harassment by unfounded litigation would cause a deflection of the
prosecutor’s energies … (or) shade his decisions instead of exercising the
independence of judgment.”
In 1949, Judge Learned Hand observed, “better to leave unredressed the wrongs done by dishonest officers
than to subject those who try to do their duty to the constant dread of
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