The Oddness: Who will watch the watchmen?


Prosecutorial Immunity

Primer: Immunity from civil suit is often added to occupations where the execution of their duties may cause an injury (the legal term) to another party but society has deemed that injury necessary for the greater good. For example, you can’t sue a firefighter for breaking your car window to gain access to a needed fire hydrant. In this case, the firefighter did break your car windows which would ordinarily make them civilly liable for the damage, but because they have immunity for acts they perform in the course of their duties you have no legal recourse.

Carfire hydrant

Now that we understand the purpose and role of immunity in public life,  let’s have a little test. Under which of these circumstances would a criminal prosecutor be civilly liable:

1) The Prosecutor argues a case vigorously and wins a conviction,

2) The Prosecutor hides evidence that the accused is innocent and wins a conviction,

3) The Prosecutor fabricates evidence, suborns perjury and convicts an innocent person.

If you said 2 and 3, then you would be wrong. In the United States, none of those actions would be cause for a lawsuit. This is because, in the US, prosecutors have what is called “absolute immunity,” this means that they cannot be sued for anything (no matter how egregious the actions may be) that they do in the course of their duties. The Supreme Court has asserted that people don’t need the right to sue prosecutors because prosecutors will be policed by their Bar Associations and the criminal justice system itself. Let’s use the infamous Duke lacrosse allegations as a bit of a case study:

In this case, a woman said she was raped while stripping at a party attended by some of the members of the Duke lacrosse team in March of 2006.

The prosecutor (Mike Nifong) charged 3 members with first degree forcible rape, first degree sexual offense, and kidnapping. If convicted on all charges, the accused would have faced 30 years in prison. Nifong proceeded with the prosecution despite 2 negative DNA tests, severe problems with the victim’s story, contradictory testimony from a second stripper, and perjury concerns surrounding the lead investigator.

Overall, Nifong was found to have delivered false statements to the public to pervert the administration of justice, withholding exculpatory (proving that the defendants were innocent) DNA evidence, and dishonest conduct. He was disbarred for his actions in June of 2007. He has faced no other sanction or punishment.

Let’s be clear here, this man accused 3 people of a horrible crime with no evidence and if it had not been for the actions of the State Bar Association (which did something it had never done before: intervened in an active criminal case) he would have most likely gotten convictions. In payment for the coldly calculated attempt to destroy at least 3 people’s lives Nifong lost his job, but not his pension.

There is nothing those people can do to him for his gross malfeasance (bad behaviour) because of the absolute immunity he enjoyed as a prosecutor.

This is the monster that the US Supreme Court has created: a fundamentally unaccountable elite in charge of the administration of justice. Expecting the professional associations and police to police prosecutor misconduct is like expecting twins to punish one another. It just is not likely to happen.

Uis custodiet ipsos custodes? (who will watch the watchmen)


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