I bet you thought only criminal suspects got immunity deals. Not even close. Prosecutors have better immunity than anyone else. And the Attorney General, our chief law enforcement official, gets the sweetest deal of all. Who said the system is not fair? And it gets better than that. Defendants get what is called use immunity. 18 USC § 6002 provides “but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case.” Suspects, before this statute, obtained transactional immunity which immunized them for the crime they are forced to admit. The new statute, which we called useless immunity, gives immunity only for the words uttered or evidence derived from those words.  Prosecutors, on the other hand, get much more than use immunity, or even transactional immunity, they get job immunity. The courts have created a rule giving them absolute immunity from civil liability for whatever they do in every court case they prosecute.

The Supreme Court recently granted review of four cases on the civil liability of prosecutors for serious misconduct resulting in long prison sentences for innocent men. The court went to great lengths to expand this immunity, instead of holding them to account for the serious and even criminal misconduct which put these men in prison.

This week in Ashcroft v. Al-Kidd, the court gave an immunity bath for our esteemed former attorney general John Ashcroft. See Supreme Court Opinion. Federal agents arrested Abdullah Al-Kidd pursuant to the federal material witness statute 18 U. S. C. § 3144. This statute allows the arrest and imprisonment of potential witnesses in a criminal case whose testimony is material and whose presence can’t be obtained through the use of a subpoena. Al-Kidd was arrested and detained for 16 days and on supervised release for another 14 months. He was never used as a witness in a trial, and the evidence indicates there never was an intent to use him as a witness.

Al-Kidd sued Attorney General John Ashcroft alleging that the federal material witness statute was used as pretext to arrest and detain him. He argued that Ashcroft carried out this policy against terrorist suspects when the government did not have enough evidence to charge an individual with a crime.

Ashcroft clearly abused the great authority he was given as attorney general. He used, or abused, the material witness statute to round up the usual suspects and jail them for indefinite periods of time. This happened before with the infamous Palmer raids in 1919 and 1920. Palmer, then attorney general, ordered the mass arrest of immigrants on the basis they might be anarchists. Palmer appointed as his henchman the 24-year-old J. Edgar Hoover to run the operation, and even Hoover admitted later they had brutalized many suspects. After 9/11 and the fear of all Muslims Ashcroft took a page from Palmer’s play book.

Al-Kidd had a serious damage claim. He was held in three different jails in those 16 days. He was imprisoned in high-security cells, lit 24 hours a day, strip searched, with body cavity inspections, and continually handcuffed and shackled on his wrists, legs and waist. Does anyone really believe these harsh conditions were necessary just to make him available to testify at a trial?

During the oral argument, Deputy Solicitor General Katyal worried that if there had been a “national pattern of abuse” of the material witness statute, which Al-Kidd claimed, “then you’ll be having these damages actions quite a bit of the time.” So if I understand his argument, the more the misconduct, the less reason to punish it. Sort of reverse the way the law punishes the rest of us peasants.  It’s good to be the king.

Just two months before Al-Kidd, on March 29, 2011, the Supreme Court ruled in Connick v. Thompson that the Orleans Parish Attorney does not have to pay John Thompson the $14 million he was awarded in a lawsuit for outrageous prosecutorial misconduct. Thompson was wrongfully imprisoned for 18 years, 14 of them on death row.

A month before his scheduled execution, a defense investigator found a copy of a police lab report that proved his innocence. The report, based on blood found on the clothing of one of the carjacking victims, showed conclusively that Thompson had not committed that crime; the sample was blood type B, and Thompson’s blood was type O. The district attorney’s office in New Orleans had all that evidence when Thompson went on trial, but never disclosed it to his lawyers, as the Constitution demands. To show how mean these people were they even scheduled Thompson’s execution for the day before his son’s graduation from high school.

In a third case Terry Harrington and Curtis McGhee, both African-American, served 25 years of a life term before the Iowa Supreme Court overturned their convictions for murder. The Iowa supreme court said that the key witness against them was a known “liar and perjurer,” and that prosecutors had withheld evidence that pointed to a different suspect in the crime. Harrington and McGhee sued, contending that police and prosecutors framed the two teenagers while ignoring evidence that implicated a white suspect who was the brother-in-law of the local fire chief.

Lawyers for the two prosecutors came up with the novel defense that there is no constitutional right “not to be framed.” The U.S. government, represented by Deputy Solicitor General Neal Katyal, joined this defense and asserted there is no federal constitutional right not to be framed. As Dave Barry would say, I am not making this up. This makes me want to vomit. The state settled the case before the court decided it so we don’t yet know if prosecutors can legally frame a suspect.

Another case that I recall well is that of former CIA officer Edwin P. Wilson who spent 20 years in prison for smuggling tons of plastic explosives to Libya. At his 1983 trial, Wilson said he was still working for the CIA when the shipments were made. The government said that the CIA had no contacts with him at the time, and that assertion turned out to be false. Wilson was a big story back then and he was demonized in the press. Then it turns out he was working undercover and the government sacrificed him for public opinion.

A federal judge set aside his conviction ruling that “in the course of American justice, one would have to work hard to conceive of a more fundamentally unfair process . . .  than the fabrication of false data by the government, under oath by a government official, presented knowingly by the prosecutor in the courtroom with express approval of his superiors in Washington.” Wilson was released from prison in 2004 and now, at 82, rents a room from his brother in Seattle. “Even McDonald’s wouldn’t hire me,” he said. He tried to sue the government, but the suit was dismissed because of the prosecutors’ immunity. “I lost my family, lost my property. But more important, I lost my good name,” Wilson said. They steal 20 years of your life and there is no remedy? Something has to change.

Add to this list of horrible cases the Duke lacrosse players, Senator Ted Stevens, etc., etc.

This immunity rule is judge-made. It was created in 1976 in a case called Imbler v. Pachtman, where the court ruled that prosecutors have absolute immunity from civil rights lawsuits for their work in the courtroom. The court acknowledged that its ruling “does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,” but said it didn’t want prosecutors to fear civil suits based on their work.

Since then, the courts have created two types of immunity for prosecutors under the major federal civil rights statute, 42 U.S.C. § 1983. Absolute immunity and qualified immunity, depending on the function the prosecutor was performing at the time of the misconduct. When they act as advocates, absolute immunity applies. They are immunized even when the plaintiff proves that the prosecutor acted intentionally, in bad faith, and with malice. When they act as investigators or administrators, qualified immunity applies. Under qualified immunity, prosecutors are immunized unless the misconduct violated clearly established law of which a reasonable prosecutor would have known.

So what are the arguments for giving immunity to prosecutors:

1.  Defending against these lawsuits will divert time and resources to defending frivolous litigation. Judges can easily dismiss frivolous lawsuits; Al-Kidd’s time was certainly diverted and no one seems concerned about him. And the Supreme Court, back in 1997, allowed Paula Jones to bring a civil lawsuit against the then-sitting President, Bill Clinton. Prosecutors get a better deal than the president.

2.  Prosecutors serve an important function in the criminal justice system. So do defense lawyers, but no one is suggesting we be immune from suit.

3.  Prosecutors shouldn’t fear a lawsuit even if they send an innocent person to prison. Why not? Shouldn’t we demand they perform competently and lawfully? Why should we give them the absolute right to be either incompetent or even criminal? They say mistakes will happen, but guess what, we all make mistakes. To err is human. Tell it to the judge and jury like the rest of us have to.

4.   Prosecutors don’t want to be held accountable for their failures, whether deliberate or not. Why shouldn’t they be? It is good for the integrity of the system for prosecutors to be afraid of being held accountable for their mistakes in fulfilling their very important function of putting human beings in jail. They should be afraid of being wrong. They should be scared to death of convicting innocent people.

5.  Justice John Roberts expressed concerns about a “chilling effect” on prosecutors if they are subject to civil lawsuits. But isn’t deterrence and “chilling effect” what we use to prevent misconduct? Isn’t that the purpose of punishment? Don’t prosecutors use it against those they prosecute? Is “we were just doing our jobs” a logical defense to hiding evidence, suborning perjury and framing suspects?

6.  Without immunity, prosecutors “would be gun-shy” about taking on difficult cases, Ashcroft claimed. If by a difficult case Ashcroft means one without sufficient evidence, then they should be gun shy.

As Thomas Jefferson said, where the people fear the government, there is tyranny —  but when the government fears the people, there is liberty. So it is good for them to be afraid.

Retired Supreme Court Justice John Paul Stevens, in a May 2011 speech, disagreed with the Connick case and urged congressional action to hold prosecutors clearly liable for the civil rights violations of their underlings. Stevens said the problem could be fixed — as with other statutory interpretations by the Court — by an act of Congress, amending the civil rights protection known as Section 1983. Such a change, said Stevens, would “produce a just result in cases like Thompson’s in which there was no dispute about the fact that he was harmed by conduct that flagrantly violated his constitutional rights.”

But Justice Stevens is being naive. Congress will never pass a law like this; it would make them look soft on crime. There is no chance they will diminish the power of prosecutors; they only increase them.

At the very least, there should be liability for intentionally violating constitutional rights like the withholding and hiding Brady evidence, evidence that is exculpatory or proves the innocence of a suspect. Why should we give immunity for that? We don’t want to encourage it; we want to discourage it. There should be a chilling effect to violate Brady. And even if there is a slight chance of the evidence being exculpatory, allowing liability would cause the prosecutor to disclose rather than hide. That would be good for the process. Immunizing them for hiding it has the opposite effect.

An unintended consequences of the DNA revolution is to prove how many innocent people are sent to prison. Over 250 have been released and at least 30 from death row. And this is only with the prisoners who have biological evidence to test. How many innocent people are in the great majority without this type of evidence? That is a question it seems we will never be able to answer. For our own protection we need to put some deterrence on prosecutors. Obviously giving them absolute immunity hasn’t worked. Isn’t it about time to change the policy and try something new?

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