The End of Absolute Immunity for Prosecutors

Another outstanding feature by The Marshall Project.

It’s written by a senior federal trial judge in New York. For 23 years, he’s sentenced the likes of murderers, rapists, gangsters, and fraudsters—some to prison for the rest of their lives. But he says it’s time to put an end to absolute immunity for prosecutors.

Absolute immunity is what it sounds like. It doesn’t just protect prosecutors who follow the rules but make mistakes. It protects those who knowingly and purposely break the rules.

Believe it or not, they can do all kinds of dirty deeds to convict you—even to frame you, on purpose—and you have no right to sue them for it. Crazy, huh? They can withhold evidence, put on false evidence, coerce witnesses to testify against you, or worse. No matter the facts, you have no civil rights or remedies against them as a matter of law.

But as the author notes, cops don’t have absolute immunity; they have a form of qualified immunity, so what’s the difference?

For an overwhelming majority of prosecutors, there would be no difference.

But truly bad actions should suffer civil and criminal consequences for their obstruction of justice. For more on why, see this blog post by the American Constitution Society.

A Tale of Two Rules for California Prosecutors

In the first days of fall, the Golden State has set forth two new, important rules to punish prosecutors who unreasonably, recklessly, or intentionally withhold evidence from the accused. One is a criminal statute that goes into effect next year. The other is an ethics rule that goes into effect if and when the state’s supreme court approves it. Both aim to create real consequences for prosecutors who wreck lives by committing Brady violations.

First, on September 30, Governor Brown signed California Assembly Bill 1909 into law. The new law makes it a felony for prosecutors to not disclose evidence or information that’s material to the outcome of a case if they do it intentionally and in bad faith. It used to be a misdemeanor at most. The new law is effective January 1, 2017. Here is the actual text:

A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any [evidence or information], knowing that it is relevant and material to the outcome of the case, with the specific intent that [it] be concealed or destroyed, or fraudulently represented as the original evidence … is guilty of a felony.

The crime is punishable by imprisonment for 16 months, two years, or three years.

Next, on October 1, the State Bar of California, which regulates the state’s lawyers, adopted proposed Rule of Professional Conduct 5-110 by an 11-1 vote. The new ethics rule would require prosecutors to disclose all evidence that they know, or reasonably should know, would be favorable to the accused. Here again is the actual text:

The prosecutor in a criminal case shall … make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the prosecutor that the prosecutor knows or reasonably should know mitigates the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

The proposed rule now goes to the California Supreme Court for approval.

Some say it’s the best of times; some say it’s the worst of times.

Either way, let’s make it better.

Lies, Damned Lies, and Sex Crimes

If you thought the case from last week was bad, here’s another one that’s worse.

This time, the supposed victim hasn’t stepped forward to admit she lied, so the man she accused of child molestation sits in prison, as he has for seventeen years, and the system seems powerless to stop it.

What happened? The jury never saw medical records in which the girl’s mom told a hospital therapist that her troubled daughter was a “pathological liar and she lives her lies.” The jury never heard about this and other details at trial because the prosecutor didn’t turn over the records. He told the judge there wasn’t anything in there to worry about.

How did it happen? The man was divorced and estranged from the mom, but he’d been in the girl’s life for ten years before that. The girl first reported the abuse three years after the divorce but only after her mom found out that she was dating a 27-year-old heroin-dealing parolee, and they got into a big fight about it. The mom reported the parolee and got him locked up. The girl flew into a rage and attempted suicide several times. It was in that context that she accused him.

But the girl’s story changed throughout the case. Initially, she said that he had touched her inappropriately but denied oral sex or intercourse of any kind. Then she claimed that he had raped her. By the time of trial, her testimony was that her stepfather had routinely raped her for years. Then, after he was convicted, she submitted a victim-impact statement in which she claimed, for the first time, that he had even shared her sexually with others.

The judge was not impressed. She had presided over the trial, and she thought the girl was lying. She asked to see her medical records, but the prosecutor refused. She threatened to throw out his conviction unless she saw the records, and he gave in.

The judge took one look at the girl’s medical records and immediately ordered a new trial. Here’s her written order. You should read it for yourself.

But the prosecutor’s office appealed the judge’s order. They got the conviction reinstated and the case reassigned to another judge, who sentenced the man to seventy years.

The man remains in prison today, serving out a death sentence. His case has cut a tortured path through state and federal appeals.

Someone should intercede.

California Prosecutor to Pursue Perjury Cases More Aggressively

Speaking of district attorneys’ doing creative things, here’s another one.

The district attorney from Lake County, California has created a perjury-investigations unit to prosecute what he views as rampant, unchecked perjury in the courtroom. And he’s not wrong about that. Just ask a divorce lawyer about the vicious lies that people will tell in court when it suits them. It’s a real problem. It harms people and undermines the rule of law.

In fact, one of the catalysts for the move was the case of a man who spent eighteen years in prison for a child molestation he didn’t commit. We know that now because the child whom he supposedly molested, the daughter of an ex-girlfriend, stepped forward to say it never happened. The now-30-year-old woman was ten years old at the time, and she says her mom made her lie about the man because he’d just won custody of their two-year-old girl.

The district attorney says his office will pursue cases where there is strong evidence of a material lie. It’s a smaller office, but it’s a start. It may be the first such unit in the country, and they’ve already filed their first case.

Says the district attorney, “There’s no way you’re going to completely eliminate perjury. I’m not a dreamer. But we do hope to deter a lot of people from blatantly lying.”

A Postscript to Last Week’s Open Letter

Following up on last week’s post, readers should understand the timeline of events that brought the misconduct to light. Here are the highlights.

  1. In January 2013, a defendant in a murder case filed a motion to get some important information from the prosecution. The trial court found good cause for the motion and granted it, but the district attorney’s office did not comply with the order.
  2. In January 2014, the defense filed three additional motions, alleging that the district attorney’s office was participating in a large-scale operation by the sheriff’s department to purposely violate the constitutional rights of defendants who were awaiting trial in the Orange County jail system.
  3. In February and March 2014, the trial court ordered evidentiary hearings to get to the bottom of these allegations. That is when the district attorney’s office began a campaign to retaliate against the judge.
  4. In August 2014, the judge issued his first decision in the matter. He found that law enforcement had committed due-process violations negligently but not maliciously, and he didn’t disqualify the district attorney’s office from the case.
  5. In December 2014, the judge reopened the hearings because the defense presented evidence that at least two senior sheriff’s deputies had lied during the initial hearings.
  6. In March 2015, the judge issued his second decision in the matter. He found that the two deputies had willfully lied or withheld material evidence during the first set of hearings, and he disqualified the district attorney’s office from the case because of what now appeared to be serious due-process violations:
  • “It is now apparent that the discovery situation in this case is far worse than the court previously realized. In fact, a wealth of potentially relevant discovery material … remained secret, despite numerous specific discovery orders issued by this court.”
  • “After a period of what can at best be described as benign neglect concerning the actions of his law-enforcement partners, the District Attorney cannot or will not in this case comply with the discovery orders of this court.”
  • “In this case, the District Attorney’s conflict of interest is not imaginary. It apparently stems from his loyalty to his law-enforcement partners at the expense of his other constitutional and statutory obligations.”

An Open Letter to the District Attorney of Orange County

Mr. Rackauckas: Just what is going on in your office, sir?

I’m not talking about the fight that broke out in a county courthouse three weeks ago between one of your investigators and a defense attorney. Never mind that if a defense attorney did this to a cop, he’d be arrested so fast his head would spin. (Full disclosure: I met this lawyer two weeks ago at a bar association event and had lunch with him on Monday. Although he’s told me his side of the story, he wasn’t trying to sell anything, and I wasn’t looking to buy, either.) But that’s not the issue here.

I’m not even talking about the jailhouse snitch scandal that led to the fight and that has roiled your office—and my county—for two years now since it’s come to light. Plenty of ink has already been spilled about it, including in a letter to the U.S. Attorney General last November by a coalition of legal authorities, who called on the Justice Department to investigate the scandal. But that’s not it, either.

No, I’m wondering about your office’s response to the scandal, and specifically, the way it has retaliated, systematically, against the trial judge who ordered the hearings that brought the misconduct to light.

I couldn’t believe it at first.

More than once after the scandal broke, I had attended events at which some of your senior deputies expressed both regret and resistance over the news. By turns, what I heard from them was that, yes, some mistakes were made, and we understand your concern, but please don’t blow it out of proportion, give us the benefit of the doubt, and by the way, we’re already doing better and will continue to do better.

Then I learned that, in December, a supervising judge of the superior court had to take your office to task for repeatedly using a procedural tool to disqualify the trial judge from 94% of the murder cases that he’s been assigned to since he began scrutinizing your misconduct. That’s 46 out of 49 murder cases, sir. Your office never did that before, and this to a judge who’s among the more experienced, independent, and respected on the felony trial panel. (Full disclosure: I have a white-collar case pending before this judge.)

The supervising judge found that your office had violated the separation of powers under the state and federal constitutions, and he rightly called it an attempt to punish, silence, and intimidate the trial judge as well as send a signal to the rest of the bench. It’s a national story, and the Orange County Bar Association has taken a stand against it.

I’m wondering if you think this demonstrates good faith by an office whose mission is to “enhance public safety and welfare and create a sense of security in the community through the vigorous enforcement of [the] laws in a just, honest, efficient, and ethical manner.”

Sometimes, the right thing to do is take your lumps and stand down, but instead, your office has chosen to appeal the supervising judge’s order, taking the position that you did not direct your deputies to retaliate against the trial judge.

But either you directed them, sir, or you are not sufficiently in command of your office.

Which is it?

The Grievous Case of the Three Missing Grouper

You may have heard about this one.

On November 5, the U.S. Supreme Court will hear oral arguments in Yates v. United States, a case that may be a figurative poster child for overcriminalization in America.

The case involves the application of certain obstruction-of-justice statutes—one of which was enacted to respond to Enron-style corporate bad acts—to three missing fish.

Here’s what happened. The defendant was a commercial fisherman who was harvesting red grouper in the Gulf of Mexico. One day, his vessel, the Miss Katie, received a visit from a state fish-and-wildlife officer who was deputized to inspect fish for compliance with federal size limits. Federal law required that any harvested red grouper be at least 20 inches in length, and based on his measurements, the officer concluded that 72 grouper were undersized, so he issued the fisherman a citation. You see, it was not a crime to harvest undersized fish; it was a civil violation punishable by a fine or by suspension of one’s fishing license. The officer told the fisherman to leave the undersized grouper in crates until the Miss Katie returned to dock, where they would be seized and destroyed. A couple days later, however, the officer measured the grouper again and concluded that 69 of them were undersized. An investigation ensued, and the fisherman was eventually indicted for lying to federal agents, throwing undersized fish overboard to prevent their seizure, and obstructing a federal investigation. See 18 U.S.C. §§ 1001(a)(2), 2232(a), & 1519.

I’m sure there was no other solution than to charge the guy federally with multiple felonies.

The case is reminiscent of another one, Bond v. United States, that the Court decided just last term. There, federal prosecutors went gangbusters on a woman who acted out after finding out her best friend was pregnant by her husband. To exact revenge, the woman repeatedly applied chemical irritants to her former friend’s door knobs and mailboxes, but her actions resulted merely in a minor burn on the friend’s thumb, which the woman treated by rinsing with water. All sides agreed that the wife did not intend to kill the friend, only to afflict her with an uncomfortable skin rash. Even so, the government charged her with possessing and using a “chemical weapon” in violation of the Chemical Weapons Convention Implementation Act of 1998, a statute enacted pursuant to an arms-control treaty that was concerned with weapons of mass destruction. On appeal, the Supreme Court unanimously reversed her conviction, holding that it would violate constitutional principles of federalism to interpret the statute in a way that makes a federal case out of simple assaults. Or, to summarize the opinion: Give me a break.

Simple assault, there. Three missing grouper, here. Overcriminalization, everywhere.

The fisherman is being represented before the Supreme Court by the Federal Public Defender’s Office for the Middle District of Florida. For a short, animated video about the case, see here. For a news release about next week’s arguments, see here. And for a well-written amicus curiae brief in support of the fisherman, saunter over here.

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