The Cautionary Instruction: Absolute immunity insures the exercise of independent judgment

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 advocate.

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 misconduct.

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 lacrosse team.

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 retaliation."

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