Reason: Absolute Immunity Puts Prosecutors Above the Law

Prosecutors enjoy absolute immunity for actions they take in the course of their prosecutorial duties. That means victims of prosecutorial malfeasance cannot seek damages even for blatant constitutional violations. When district attorneys falsify evidence, knowingly introduce perjured testimony, coerce witnesses, or hide exculpatory information from the defense, their victims generally have no legal recourse. And although such misconduct theoretically can trigger professional disciplinary action, including disbarment, that rarely happens.

Billy Binion does a thorough examination of absolute immunity for Reason magazine. 

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Federal Court denies absolute immunity to prosecutor who fabricated evidence

 A Louisiana prosecutor and a detective lost their bids for absolute immune from a former murder defendant’s lawsuit alleging that they intimidated a juvenile witness to adopt a narrative about the crime they conjured from whole cloth, reported Bloomberg.

The prosecutor was acting as an investigator, rather than an advocate, and thus isn’t entitled to absolute prosecutorial immunity, Judge James L. Dennis said Tuesday. Police officers also aren’t “entitled to the absolute immunity reserved for a prosecutor,” the court said.

The 1998 murder of a pizza delivery driver in Livingston Parish, La., was a cold case until a jail-house informant implicated Michael Wearry. Although Wearry had an alibi, district attorney Scott Perrilloux and detective Marlon Foster allegedly intimidated a juvenile facing prosecution on other charges into testifying that he saw Wearry near the crime scene.

Wearry was convicted for the murder and sentenced to death, but the U.S. Supreme Court overturned the conviction, and the juvenile recanted his testimony. When Wearry sued Perrilloux and Foster for violating his civil rights by fabricating evidence, they both claimed absolute immunity.

Absolute immunity applies only when a prosecutor is performing advocatory functions, such as organizing, evaluating, and presenting evidence, the U.S. Court of Appeals for the Fifth Circuit said. The doctrine doesn’t apply to investigatory functions, such as gathering or acquiring evidence, it said.

Perrilloux and Foster detained and coerced the juvenile into testifying to a narrative that had no basis in any evidence gathered in the case, the court said. Fabricating evidence is evidence creation, which is not part of the advocate’s role, but a corruption of the investigator’s function of searching for clues and corroboration, it said.

Foster argued that since he and Perrilloux were accused of the same fabricating acts, Perrilloux entitlement to absolute immunity should apply to him, too. Not only has the Supreme Court rejected that exact argument, Perrilloux isn’t immune from Wearry’s suit, the court said.

Judge Carolyn Dineen King joined the opinion.

In a dubitante opinion questioning the continued validity of absolute prosecutorial immunity, Judge James C. Ho said “governing precedent requires us to grant prosecutorial immunity in this case.”

The Roderick & Solange MacArthur Justice Center represented Wearry. The Moody Law Firm represented Perrilloux. Breazeale, Sachse & Wilson LLP represented Foster.

The case is Wearry v. Foster, 2022 BL 153489, 5th Cir., No. 20-30406, 5/3/22.

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Trump's lawyers say he is entitled to 'Absolute Immunity'

 Donald Trump’s hours of silence while a violent mob ransacked the Capitol — egged on by his own words and tweets — could be plausibly construed as agreement with rioters’ actions, a federal judge, reported Politico.

U.S. District Judge Amit Mehta made the analysis as he pressed Trump’s lawyers about their efforts to dismiss a series of lawsuits against the former president seeking to hold him financially liable for inciting the Jan. 6 insurrection.

“What do I do about the fact the president didn’t denounce the conduct immediately?” Mehta wondered, homing in on a central focus of congressional investigators probing Trump’s conduct that day. “Isn’t that, from a plausibility standpoint, enough to at least plausibly infer that the president agreed with the conduct of the people that were inside the Capitol that day?

Mehta’s questioning prompted Trump’s attorney, Jesse Binnall, to push back, forcefully arguing that Trump can’t conceivably face legal consequences for actions he did not take.

“The president cannot be subject to judicial action for any sort of damages for failing to do something,” Binnall said.

“If my words had been misconstrued … and they led to violence, wouldn’t somebody, the reasonable person, just come out and say, wait a second, stop?” Mehta wondered. He then referred explicitly to evidence unearthed by the Jan. 6 select committee, noting that Trump’s son Donald Trump Jr. had done just that, imploring White House chief of staff Mark Meadows to get his father to issue a forceful public denunciation of the violence. But Trump didn’t issue any public calls for the rioters to go home for two hours after police lost control of the Capitol.

Mehta is primarily focused on whether to permit the lawsuits against Trump to move forward, and he is largely determining, at this stage, whether the complaints against the former president are plausible and legally sound.

In the course of the arguments, Trump’s lawyers offered an exceptionally broad view of Trump’s immunity from civil lawsuits for his acts as president, claiming that virtually every statement Trump made was “immune.”

“That absolute immunity of the presidency is very important,” Binnall contended.

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Circuit Court affirms absolute immunity for former St. Louis prosecutor

The US Court of Appeals for the Eighth Circuit ruled that former St. Louis Circuit Attorney Jennifer Joyce was entitled to absolute immunity over her decision to prosecute former police officer Jason Stockley for first-degree murder, reported Jurist.

In 2011 Stockley and another officer observed what they thought was a drug transaction, which led to a chase in which Stockley shot and killed the suspect. The St. Louis Metropolitan Police Department’s (SLMPD) Internal Affairs Division investigated the death, finding no basis for criminal prosecution. At that time, Joyce, the FBI, the US Attorney and the US Department of Justice Civil Rights Division all declined to prosecute Stockley.

In May 2016 the SLMPD Force Investigation Unit (FIU) reopened the investigation, following protests against Joyce’s decision not to prosecute Stockley. Before completing the investigation, FIU officers were told to return the police file to Joyce, who decided to prosecute Stockley for first-degree murder. Following a bench trial, Stockley was acquitted.

Stockley filed a claim in the US District Court for the Eastern District of Missouri in 2017, alleging that Joyce’s decision violated her own protocol of requiring an FIU investigation of a police shooting before any prosecutorial decision. He argued that she was not immune from liability for doing so.

He also alleged that Joyce announced in public settings that she had new evidence proving him guilty of first-degree murder, even though she did not. Stockley claimed that this violated his substantive due process rights and that it was also defamation. The district court dismissed the claims.

On appeal, the circuit court found that Joyce’s decision to end the FIU investigation and to charge Stockley with first-degree murder, “clearly falls within the prosecutorial function of initiating judicial proceedings.” She had absolute immunity from liability for that decision. Although not immune from liability for violating substantive due process, the court also found that Stockley failed to state a substantive due process claim against Joyce for her remarks. Stockley also failed to state a defamation claim against Joyce.

Because of this, the court affirmed the district court’s dismissal of the claims.

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Is it time to reevaluate absolute immunity for prosecutors?

Bidish Sarma writing for the American Constitution Society examined Absolute Immunity for Prosecutors.

Four decades ago, the U.S. Supreme Court implemented a major, nationwide policy that consolidated prosecutorial authority: it granted prosecutors absolute immunity for acts committed in their prosecutorial role. This decision sheathed prosecutors in protective armor while they pursued criminal convictions through an era of crime-related hysteria, and it eroded one of the few mechanisms available to hold prosecutors accountable. Considering the growing call to acknowledge and address an epidemic of prosecutorial misconduct, now is a critical time to reflect on Imbler v. Pachtman and evaluate whether it holds up to modern-day scrutiny.

Sarma concluded that absolute immunity for prosecutors did not make much sense in 1976, and it makes no sense today. Revisiting the doctrine does not entail a constitutional change; instead, the Court simply needs to update its view on absolute immunity’s applicability (or correct its interpretation of the federal statute). Increasingly, we have recognized that prosecutorial discretion in charging and plea bargaining invisibly resides at the center our criminal justice system. If we are serious about reducing mass incarceration or, more modestly, improving the system’s fairness, we need accountability for the actors who have been authorized to charge, try, and convict. To this point, there has been little more than moral hazard and prosecutorial impunity.

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Kentucky Senator seeks immunity from DUI charge

Kentucky state Senator Brandon Smith, arrested this month on a DUI charge, is making an effort to get the charge dismissed based on a 124-year-old law that says lawmakers are "privileged from arrest" during legislative sessions, according to Newsmax.

According to WKYT,  the law provides “The members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place."

Smith was arrested Jan. 6, the first day of the legislative session.

Peter Voss, a political science professor,  told Lex 18 News legislative immunity was created because of problems between the crown and parliament. “It's safer to leave the people's elective representative in office voting and representing them, than it is to make it easy to lock them up," Voss said.

Questions have arisen as to whether the law would apply in Smith’s case. Although he was in session during the day, he was arrested on his way home from a friend’s house that night.

"The people who wrote the Constitution in 1891 did not intend to give blanket immunity to all legislators for any acts committed during the legislative session," Assistant Franklin County Attorney David Garnett told Lex 18. “Nobody is above the law."

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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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Supreme Court Examines Limits of Prosecutorial Immunity

This week, the U.S. Supreme Court listened to arguments about whether to allow former Attorney General John Ashcroft to be sued by Abdullah al-Kidd, an American Muslim, who was arrested and detained using a law intended to make sure witnesses testify in criminal proceedings, according to the Associated Press.

The various Circuit Courts of Appeals have split on whether an arrest under a material witness warrant like the one used on al-Kidd in 2003 was constitutional. The issues before the court are whether prosecutors should continue to have absolute immunity from civil law suits when performing prosecutorial functions and is a material witness warrant a protected function.

The law is settled on the issue of protected prosecutorial functions, for which prosecutors may not be sued. The Court in Imbler v. Pachtman, 424 U.S. 409 (1976) acknowledged that absolute immunity may “leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” But the Court expressed agreement with Judge Learned Hand, who observed that it is “in the end 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.” Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949).

The question for the Supreme Court is whether or not taking a material witness into custody, even as a pretext for investigating the detained witness, is a protected prosecutorial function.

To read more: http://www.msnbc.msn.com/id/41874808/ns/us_news-crime_and_courts/

Questioning Protection

U.S. Supreme Court agrees to take another look at prosecutorial immunity

Pennsylvania Law Weekly
April 13, 2010

John Thompson spent 18 years in prison for a robbery and murder he did not commit.

In fact, he was only months away from execution while on Louisiana's death row. Thompson's fight for freedom was a long and tortured story of misdeeds, wrongful convictions and delay.

Thompson's case included after-discovered evidence, prosecutorial misconduct, a death-bed confession, a last-minute stay of execution, exoneration and a multi-million dollar verdict. It had all the makings of a Hollywood blockbuster. In fact, The Nine Lives of John Thompson, starring Matt Damon, is already in production.

The full story of John Thompson and the legacy of his prosecution, conviction and exoneration, is unfinished, however.

Last month, the U.S. Supreme Court agreed to hear the Orleans Parish District Attorney's Office appeal to John Thompson's $14 million verdict in Connick v. Thompson. The suit alleged that Thompson's civil rights were violated when the district attorney's office failed to train prosecutors regarding their responsibilities under Brady v. Maryland.

In Brady, the U.S. Supreme Court declared that the failure to disclose evidence favorable to the accused violated due process where the evidence was material to either guilt or punishment. In the 1972 case Giglio v. United States, the high court expanded on Brady, holding that a prosecutor's failure to disclose a promise of leniency made to a material witness that could be used for purposes of impeachment violated due process.

In this case, the Brady question is raised in the context of absolute immunity for prosecutors. Absolute immunity has long protected prosecutors from litigation attacking the exercise of their core public functions. Without absolute immunity, a prosecutor may be subject to an unnecessary depletion of resources and the unavoidable distractions that come with defending countless challenges to the decision-making process.

Last term, the U.S. Supreme Court decided Van de Kamp v. Goldstein. The court unanimously extended absolute immunity to claims that supervising prosecutors failed to train subordinate prosecutors on their obligation to disclose impeachment evidence as required by Giglio. The high court held individual prosecutors are immune from suits alleging failure to "adequately train and supervise deputy district attorneys" on disclosure obligations, and "failure to create any system" for managing impeachment evidence.

The Supreme Court is now being asked to decide whether a single-incident failure-to-train claim that is covered by absolute immunity for an individual prosecutor pursuant to Van de Kamp can stand against a district attorney's office pursuant to a 42 U.S.C. 1983 civil rights action.

The facts of Thompson are compelling.

Thompson and an accomplice were arrested for the 1984 robbery and murder of a man outside his New Orleans home. As a result, Thompson's photograph was in the newspaper.

The victim of a separate robbery identified Thompson, through the newspaper, as her assailant. Thompson was arrested for the second robbery. The robbery investigation revealed blood on the clothing of one of the victims. The blood was earmarked for testing.

The same two assistant district attorneys were assigned to Thompson's pending murder and robbery trials. They made a tactical decision to try the robbery before the murder. The rationale was that a robbery conviction against Thompson would keep him from testifying at his murder trial. A robbery conviction could also be useful in obtaining a death sentence at the murder trial.

The blood from the robbery was tested on the eve of trial and found not to be that of Thompson. The blood test was not provided to the defense as required by Brady. Instead, the test was buried and a third prosecutor actually removed the blood stained clothing from the evidence room.

The trials proceeded as planned by the district's office. Thompson was convicted of robbery, he did not testify during his murder trial and the robbery victims testified during the penalty phase following his murder conviction. Thompson was sentenced to death.

A Buried Blood Test
Fast forward 14 years and Thompson was on death row. He was scheduled for execution when a defense investigator found the buried blood test. A subsequent test of Thompson's blood eliminated him as the offender in the robbery. It was then revealed that the assistant district attorney who removed the blood evidence was stricken with terminal cancer and made a death bed confession regarding the disposal of the evidence.

Thompson's murder conviction was overturned by the Louisiana Court of Appeals due to the fact that his robbery conviction — now overturned — deprived him of his right to testify in his own defense during his murder trial. Thompson was awarded a new trial and subsequently found not guilty.

He sued the Orleans Parish District Attorney's Office. The jury found that the district attorney's office showed "deliberate indifference" to establishing policies and procedures to avoid unconstitutional Brady violations. The jury awarded Thompson $14 million and an additional $1 million in legal fees. A divided en banc panel of the U.S. Court of Appeals for the Fifth Circuit affirmed the verdict.

The issue before the Supreme Court is whether a single-instance of failure-to-train gives rise to municipal liability, in this instance a district attorney's office, and whether such a claim is compatible with the court's previous decision affirming absolute immunity for failure-to-train as it applied to the occupants of that municipal body.

The U.S. Supreme Court has recognized municipal liability for failure-to-train under Monell v. Department of Social Services, City of Canton v. Harris and Board of the County Commissioners of Bryan County v. Brown.

Beyond the issue of municipal liability, the U.S. Supreme Court has shown a recent interest in prosecutorial immunity.

Last term, it was Van de Kamp and another major prosecutorial immunity case, Pottawattamie County v. McGhee, was argued earlier this term before the parties reached a settlement.

The limits of prosecutorial immunity have garnered the attention of prosecutors across the country. The National District Attorneys Association filed a brief expressing concern that liability based on a single-incident of failure-to-train created an "alarming prospect" that the strong tradition of prosecutorial immunity may begin to erode.

Why are prosecutors concerned?

Holding an office liable for the conduct of its occupants, when those occupants individually have absolute immunity seems to abrogate the very holding of Imbler v. Pachtman and Van de Kamp. If a district attorney's office were subject to the same litigation that is barred against its employees, how are those individual prosecutors protected from the "judgment-distorting burdens of litigation" protected through Imbler and Van de Kamp?

In Thompson, the very prosecutors who committed the egregious acts of withholding and destroying exculpatory evidence would be protected by absolute immunity. Their office, on the other hand, would not be protected by immunity on the premise that the office failed to train when, in fact, there is scant evidence that training would have had any impact on preventing the intentional misdeeds by the prosecutors involved in this glaring injustice.

Elected district attorneys need to take heed of the growing volume of civil rights suits alleging, among other things, "deliberate indifference" to training and establishing office policies regarding the intricacies of Brady and Giglio, and the constitutional implications of failing to meet those standards, and the liability issues that could follow.