Misbehaving Prosecutors

When you use a metric to determine performance, that metric will be gamed. With prosecutors, that metric is winning. Innocence or guilt become mere trivialities; what matters is the win. [Link]

And in a culture where racking up convictions tends to win prosecutors promotions, elevation to higher office and high-paying gigs with white-shoe law firms, civil liberties activists and advocates for criminal justice reform worry there's no countervailing force to hold overzealous prosecutors to their ethical obligations.

In the end, one of the most powerful positions in public service -- a position that carries with it the authority not only to ruin lives, but in many cases the power to end them -- is one of the positions most shielded from liability and accountability. And the freedom to push ahead free of consequences has created a zealous conviction culture.

Nowhere is the ethos of impunity more apparent than in Louisiana and in Orleans Parish, the site of Thompson's case. The Louisiana Supreme Court, which must give final approval to any disciplinary action taken against a prosecutor in the state, didn't impose its first professional sanction on any prosecutor until 2005. According to Charles Plattsmier, who heads the state's Office of Disciplinary Counsel, only two prosecutors have been disciplined since -- despite dozens of exonerations since the 1990s, a large share of which came in part or entirely due to prosecutorial misconduct.

Since the Supreme Court issued its decision in Connick v. Thompson in March 2011, several defense attorneys in New Orleans have responded by filing complaints against the city's prosecutors. Leading the charge is Sam Dalton, a legal legend in New Orleans who has practiced criminal defense law in the area for 60 years. According to Dalton and others, not only have these recent complaints not been investigated, in some cases they have yet to hear receipt of confirmation months after they were filed. Even the head of the board concedes that significant barriers to accountability persist.

Thompson is certainly aware of that. "These people tried to eliminate me from the face of the earth," Thompson says of his own prosecutors. "Do you get that? They tried to murder me. And goddamnit, there have to be some kind of consequences."

And

Now even a prosecutor who knowingly submits false evidence in a case that results in the wrongful conviction -- or even the execution -- of an innocent person can't be personally sued for damages. The only way a prosecutor can be sued under present law is if she was acting as an investigator in a police role -- duties above and beyond those of a prosecutor -- at the time she violated the defendant's civil rights. But even here, prosecutors enjoy the qualified immunity afforded to police officers: A plaintiff must still show a willful violation of well-established constitutional rights to even get in front of a jury.

The 2009 Supreme Court case Pottawattamie v. McGhee shows how absurd the logic behind prosecutorial immunity can get. Prosecutors were found to have fabricated evidence to help them convict two innocent men, Terry Harrington and Curtis McGhee, who between them spent more than 50 years in prison. Attorneys for the prosecutors, along with the Office of the Solicitor General and several state attorneys general, argued they should be immune from any liability. They said that while the prosecutors may have been acting as police investigators when they fabricated the evidence, the actual injury occurred only when the jury wrongly convicted Harrington and McGhee. It followed that because the prosecutors were acting as prosecutors when the injury occurred, they were still shielded by absolute immunity. Deputy Solicitor General Neal Katyal even argued to the court that there is no "free-standing due process right not to be framed."

During oral arguments in the case, Justice Anthony Kennedy summed up this defenseless than sympathetically: "The more deeply you're involved in the wrong, the more likely you are to be immune." And there was at least some indication during the oral arguments that some justices were moving toward limiting prosecutorial immunity.

But before the court could rule, Pottawattamie County settled with Harrington and McGhee. For now, the question of whether a prosecutor can be held personally liable for knowingly manufacturing evidence to convict an innocent person remains unsettled.