The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties,” and the Court’s application of absolute immunity has been quite sparing.” Burns v. Reed, 500 U.S. at 486-87 (quoting Forrester v. White, 484 U.S. 219, 224 (1998) (emphasis added)).
There is, Case 3:10-cv-00446-HTW-FKB Document 164 Filed 03/10/14 Page 32 of 38 33 however, a general rule that testimony presented at court is entitled to absolute immunity from § 1983 suits. Mowbray v. Cameron Cnty., Tex., 274 F.3d 269, 277 (5th Cir. 2001).
Even if the witness perjures himself, or conspires to perjure himself, he is entitled to absolute immunity from suit under § 1983. Id. at 277.
As such, Hayes is absolutely immune for her testimony at the Youth Court, but that immunity does not extend to any of her actions outside of the court with respect to Baltazar Cruz’s case.
Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he “has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.” 484 F.2d, at 608-609. See Day v. Morganthau, 909 F.2d 75, 78 (2d Cir. 1990) (denying absolute immunity to a prosecutor who “may have participated in ‘executing [plaintiffs] arrest”’).
[A prosecutor neither is nor should consider himself to be an advocate before he has probable cause to have anyone arrested.] 5 [509 U.S. 259, 275] of course, a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. U.S. Supreme Court Buckley V. Fitzsimmons, 509 U.S. 259 (1993) 509 U.S. 259 (“It is certainly in accord with the principle to say that prosecutors cannot ‘properly claim to be acting as ‘advocates’ before they have ‘probable cause to have any one arrested’ . . . .”)
The reason that lack of probable cause allows us to deny absolute immunity to a state actor for the former function (fabrication of evidence) is that there is no common-law tradition of immunity for it, whether performed by a police officer or prosecutor. See McCormick v. City of Lawrence in the United States District Court For The District Of Kansas August 14, 2003 dale e. Mccormick And Curtis A. Kastl Ii, Plaintiffs, V. City Of Lawrence, Et Al., Defendants.
The Second Circuit has held that, “when it may not be gleaned from the complaint whether the conduct objected to was performed by the prosecutor in an advocacy or an investigatory role, the availability of absolute immunity from claims based on such conduct cannot be decided as a matter of law on a motion to dismiss.” Hill v. City of N.Y., 45 F.3d 653, 663 (2d Cir. 1995).
See also Carbajal v. County of Nassau, 271 F. Supp. 2d 415, 421 (E.D.N.Y. 2003) (“[W]hen a prosecutor supervises, conducts, or assists in the investigation of a crime, or gives advice as to the existence of probable cause to make a warrantless arrest—that is, when he performs functions normally associated with a police investigation—he loses his absolute protection from liability.”).
When a prosecutor performs the investigative functions normally performed by a police officer, it is neither appropriate nor justifiable that, for the same act, [absolute] immunity should protect the one and not the other. 509 U.S. at 273, 113 S.Ct. 260.
As the district court correctly observed, the courts have only “draw[n] the line in the reverse, stating that absolute immunity could not be invoked before probable cause was established.”
Indeed, in Robichaud v. Ronan, 351 F.2d 533, 535 (9th Cir.1969), we held that prosecutors who, soon after the arrest of a suspect, directed police to coerce a confession from that suspect were not entitled to absolute immunity because their activity was more police-like than prosecutorial.
Viewing the facts in the light most favorable to Genzler, we conclude that O’Brien was engaged in an investigative function, not quasi-judicial advocacy, when he met with Flanders prior to Genzler’s bail hearing on April 29, 1996. O’Brien’s report indicates that he met with Flanders “several days prior” to April 29.
In her testimony during the hearing on Genzler’s 2000 motion to dismiss, Flanders estimated that this meeting took place about a week before the April 29 joint meeting with Longanbach and O’Brien.
She remembered that she and O’Brien had talked for about an hour, “primarily … as to the identity of the person who stabbed [Harless].” 38 Police investigations were still ongoing. At this time, the preliminary hearing at which the judge would decide whether there was probable cause to hold Genzler for trial in superior court was still over a month away.
Moreover, it is a supportable conclusion from the evidence that O’Brien’s meeting with Flanders took place before the criminal complaint was filed in municipal court on April 23, 1996, and before police finished their investigation and synthesis, which is dated April 24, 1996. See Kulwicki, 969 F.2d at 1465 (noting that filing of a criminal complaint is a relevant but not dispositive factor in determining whether an interview involves investigation or advocacy). We conclude from the foregoing that there is sufficient evidence in the record to support the conclusion that, during his first meeting with Flanders, O’Brien was, like the prosecutor in Moore, engaged in the process of “acquiring” or manufacturing evidence during performance of an investigative function, rather than engaged in quasi-judicial advocacy.
At this stage of the proceedings, O’Brien is therefore unprotected by absolute immunity. Absolute immunity does not protect Longanbach if he was directing this investigative activity by O’Brien. See Joseph v. Patterson, 795 F.2d 549, 556 (6th Cir.1986) (“a prosecutor who assists, directs, or otherwise participates … in obtaining evidence prior to an indictment undoubtedly is functioning more in his investigative capacity than in his quasi-judicial capacities of deciding which suits to bring and conducting them in court”) (citation and internal quotation omitted); Robichaud, 351 F.2d at 537 (holding that prosecutors are not absolutely immune if they either “committed acts, or authoritatively directed the commission of acts, which ordinarily are related to police activity as opposed to judicial activity”); cf. Burns, 500 U.S. at 496, 111 S.Ct. 1934 (prosecutor not entitled to absolute immunity for act of giving legal advice to police). Longanbach cannot, however, be liable for O’Brien’s conduct on a theory of vicarious liability for any independent actions taken by O’Brien. See Monell v. Dep’t of Social Servs. of NY, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (respondeat superior not available as theory of liability under § 1983). In David Genzler, Plaintiff-appellee, v. Peter J. Longanbach, Defendant-appellant, Andjeffrey O’brien; County of San Diego, a Governmental Entity; San Diego County District Attorney’s Office; Gregory Thompson; James Pippen; Paul Pfingst, Defendants.david Genzler, Plaintiff-appellee, v. Peter J. Longanbach; County of San Diego, a Governmental Entity; San Diego County District Attorney’s Office, Defendants, Andjeffrey O’brien; Gregory Thompson; James Pippen; Paul Pfingst, Defendants-appellants, 384 F.3d 1092 (9th Cir. 2004) just as the existence of probable cause to arrest is not conclusive, we do not view the filing of the complaint as an event after which, by definition, all actions by the prosecutor and his staff are protected by absolute immunity.
The timing of a witness interview is most conclusive when the interview occurs during judicial proceedings, and was oriented toward influencing those judicial proceedings. See Imbler, 424 U.S. at 430, 431 n. 33, 96 S.Ct. 984.
A prosecuting attorney may perform many roles, or functions. See Robichaud, 351 F.2d at 537 (citing Edward L. Barrett, Jr.,Police Practices and the Law-From Arrest to Charge, 50 Cal. L.Rev. 11, 16-24 (1962)). Not all of these roles are protected by absolute immunity. See Robichaud, 351 F.2d at 537 (“The distinction between the roles may be significantly controlling.”).
We recognize that the two meetings with Flanders described here were to some degree related to trial preparation, even when viewed in the light most favorable to Genzler. The Supreme Court has cautioned, however, that “[a]lmost any action by a prosecutor, including his or her participation in purely investigative activity, could be said to be in some way related to the ultimate decision to prosecute, but we have never indicated that absolute immunity was that expansive.” Burns, 500 U.S. at 495-96, 111 S.Ct. 1934.
“The actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).
The Buckley Court also denied absolute immunity to prosecutors who had fabricated evidence “during the early stage of the investigation” when “police officers and assistant prosecutors were performing essentially the same investigatory functions.” Id. at 273, 113 S.Ct. 2606. See Briscoe v. LaHue, 460 U.S. 325, 326 n.1 (1983); Pyle v. Kansas, 317 U.S. 213, 216 (1942).
In Buckley I, 81 the Court drew a temporal line, holding that prosecutorial acts undertaken before the establishment of probable cause to arrest will not be considered advocatory. Id. at 274 (“A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.”). Id. at 275 (observing further that there was no evidence that a common law immunity existed for fabricating evidence during a preliminary investigation. Buckley I suggests that while the probable cause line is not dispositive of the immunity issue, the Court will closely scrutinize absolute immunity claims when the challenged prosecutorial act occurs prior to a judicial finding of probable cause.
A prosecutor is absolutely immune from suits for damages arising from the performance of the traditional functions of an advocate. When a prosecutor steps outside of the advocate‘s role, however, his or her conduct is protected by immunity only to the extent that any other individual would be protected in performing the same function. Immunity determinations thus rest on the nature of the function performed, not the identity of the actor who performed it. adv John Franklin Good, Plaintiff, Vs. Board Of County Commissioners Of Shawnee County, Et Al., Defendants. Case No. 01-4067-Rdr United States District Court For The District Of Kansas 2002 U.S. Dist. Lexis 10797 April 22, 2002, Decided.
Because certain of the prosecutors’ acts were not done in their role as advocates, they are not shielded by absolute immunity. Leonard R. Milstein, Plaintiff-appellant, v. Stephen L. Cooley; Robert B. Foltz; Countyof Los Angeles, Opinion Defendants-appellees, 257 F.3d 1004 (9th Cir. 2001). Kalina, 522 U.S. at 126 (quoting Buckley, 509 U.S. at 273).
As the Court explained in Burns: 15 [T]he concern with litigation in our immunity cases is not merely a generalized concern with interference with an official’s duties, but rather is a concern with interference with the conduct closely related to the judicial process . . . . That concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor’s role in the judicial proceedings, not for every litigation-inducing conduct. A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley, 509 U.S. at 274.
Accordingly, the Court noted that the alleged fabrication occurred well before the grand jury was empaneled. Id. at 275. see Williams, 504 U.S. at 48, such a proposition seemingly runs afoul of Buckley’s rule that a prosecutor cannot function as an advocate before probable cause exists. “a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. Buckley, 509 U.S. at 275 n.5.
In fact, before there is probable cause to arrest or to initiate judicial proceedings, a prosecutor’s “mission . . . [is] entirely investigative in character.” In The Court Of Appeals State Of Arizona Division One Belle Whitney And John Doe 1 Ca-Sa 12-0171 Whitney; Andrew Thomas And Ann Thomas, Department D Petitioners, Memorandum Decision V. Filed 9/27/2012 Of Maricopa, Lisa Randall, Individually; Brenna Randall, Individually; Tracy Allen Individually, Real Parties in Interest. He may also be without immunity when investigating a crime before there is probable cause to arrest or charge a suspect (see Buckley v. Fitzsimmons, supra, 509 U.S. 259 in which the Supreme Court split five to four on the issue). See Buckley, 509 U.S. at 273-74 (stating that a prosecutor who “plans and executes a [police investigation] . . . has no greater claim to complete immunity than activities of police officers allegedly acting under his direction”) (internal quotation marks omitted), as opposed to actions a prosecutor might “perform as part of the preparation of the case, even if they can be characterized as ‘investigative’ or ‘administrative.’” Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir. 1984). See Bradley v. Medical Board (1997)
While reiterating that prosecutorial immunity extends to acts preparatory to the commencement of a prosecution, even outside the courtroom [citation], the court held that by working ‘hand in hand’ with sheriff’s detectives to fabricate inculpatory evidence, the prosecutors acted not as advocates but as investigators, functionally no different than that of the sheriff or police department. Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987) (holding that “the supervision of and interaction with law enforcement agencies in acquiring evidence which might be used in a prosecution,” in contrast to organizing evidence for use in seeking an indictment, is of a police nature and not entitled to absolute immunity).
Where the line blurs is after there is probable cause to arrest, as a prosecutor could still continue to perform investigative work. See Buckley, 509 U.S. at 274 n. 5 (“Of course, a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards.”).
When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’ Hampton v. Chicago, 484 F.2d 602, 608 (CA7 1973) (internal quotation marks omitted), cert. denied, 415 U. S. 917 (1974).
“The complaining witness, who (in the Court’s specially-tailored history) was liable at common law and so is liable under § 1983”. Kalina [a Prosecutor]…can be sued if she changes “functional categories” by providing personal testimony to the Court.Because Kalina’s conduct clearly places her in that functional category, I agree with the Court that she is not entitled to absolute immunity under our precedents.See Kalina v. Fletcher 522 U. S. 118 (1997).
Robichaud, 351 F.2d at 537 (holding that prosecutors are not absolutely immune if they either “committed acts, or authoritatively directed the commission of acts, which ordinarily are related to police activity as opposed to judicial activity”)
Chiefly Malley and Kalina, already establish that a “complaining witness” is not shielded by absolute immunity. See Brief for Petitioner 17–22.
In those cases, law enforcement officials who submitted affidavits in support of applications for arrest warrants were denied absolute immunity because they “performed the function of a complaining witness.” Kalina, 522 U. S., at 131; see Malley, 475 U. S., at 340–341.
For the reasons identified in Briscoe, supra, at 342–344, there is no reason to distinguish law enforcement witnesses from lay witnesses in §1983 actions. (“Both English and American courts routinely permitted plaintiffs to bring actions alleging that the defendant had made a false and malicious accusation of a felony to a magistrate or other judicial officer”); Wheeler v. Nesbitt, 24 How. 544, 550 (1861) (“Undoubtedly, every person who puts the criminal law in force maliciously, and without any reasonable or probable cause, commits a wrongful act; and if the accused is thereby prejudiced, either in his person or property, the injury and loss so sustained constitute the proper foundation of an action to recover compensation”); Dinsman v. Wilkes, 12 How. 390, 402 (1852) (no immunity “where a party had maliciously, and without probable cause, procured the plaintiff to be indicted or arrested for an offence of which he was not guilty”).
A prosecutor who functions side by side with police trying to “solve” the crime by actively participating in fabricating evidence is, if anything, even less entitled to immunity than if he advises the police to do the same thing on their own. See Buckley, 509 U.S. at 275 (“After Burns, it would be anomalous, to say the least, to grant prosecutors only qualified immunity when offering legal advice to county detectives about an arrested suspect, but then to endow them with absolute immunity when conducting the investigative work themselves in order to decide whether a suspect may be arrested.
That the prosecutor later called a grand jury to consider the evidence this work produced does not retroactively transform that work from the administrative into the prosecutorial.
The traditional dichotomy in function between police who gather evidence and prosecutors who evaluate its usefulness for prosecution is salutary because it enhances the reliability of the evidence that prosecutors ultimately present in judicial proceedings or at least that is the goal. The more deeply invested a prosecutor becomes in an investigation, especially an overzealous or dishonest one, the less likely his prosecutorial review of the evidence be truly independent.
A rule that an investigatory prosecutor who personally presents fabricated evidence to the Court has immunity for the fabrication, but a prosecutor or county detective who hands off the evidence to another does not, will only discourage the independent review that immunity is intended to encourage and protect. It will centralize in one enormously powerful individual the police and prosecutorial functions that traditionally have been separate and eliminate a significant check on the power of the county detective. Such a vertical system may have its benefits, but it does not deserve to be enshrined with special constitutional status.
It has been 5 years since the McGhee case and 38 years since Imbler left open the possibly of lawsuits against prosecutors for investigative misconduct, and 21 years since Buckley clearly rejected absolute immunity for such behavior but the Defendants herein have provided no proof that this action against them is burdensome, meanwhile El points out that state and local governments indemnify and defend prosecutors against lawsuits, that they are, in any event, professionals who will not be affected by remote fears of civil liability, and that therefore the threat of civil liability will have no effect on them at all.
The routine mantra garbled in several cases in support of immunity is not that lawsuits will succeed, as the A.C.L.U. pointed out McGhee statistically civil rights lawsuits succeed far less often than traditional tort actions, but rather that such lawsuits will deter prosecutors out of fear of being inconvenienced or distracted from their intended functions. Here the defendants have presented no evidence that this has ever occurred since Imbler and Buckley.
By the nature of their job, prosecutors are used to court proceedings and are naturally equipped to deal with depositions or document production. They may employ procedural rules to oppose unduly burdensome or intrusive discovery as was done in this case, which also reveals the ability to commit fraud on the courts with impunity. Moreover, in lawsuits, such as this one, that name police and others as defendants, they may be required to testify and to disclose documents, regardless of whether they have the status of defendant or third party witness.
The distraction, rare and minor as it is in relation to their other duties, occurs regardless. Moreover, the “fear” that prosecutors will be required to explain or defend their actions after a criminal conviction has occurred will be realized far more often during the motion and hearing practice that accompanies collateral attacks on convictions and whenever a disciplinary body conducts a truly searching investigation of prosecutorial misconduct allegations. The rare civil rights suit that survives dismissal on qualified immunity pleading grounds will not add much to the burden.
The United States Supreme Court has regularly turned back similar policy arguments where prosecutors have sought blanket immunity for non prosecutorial functions. See, e.g. Kalima v. Fletcher, 522 U.S. at 131 (Court not persuaded by prosecutors concern about chilling effect); Burns. Reed 500 U.S. at 494 (the concern with litigation in our immunity cases is not merely a generalized concern with interference with an official’s duties, but rather a concern with interference with the conduct closely related to the judicial process”).
It also commonly argued that there is no need for a civil remedy because prosecutors who engage in investigative misconduct are subject to, and will be, disciplined by outside professional disciplinary authorities or by their own offices. El v. Wehling case demonstrates that argument to be unfounded as it shows that the Defendants participated in criminal activity, were exposed and were not disciplined. See, e.g., Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. Rev. 721, 755 (2001) (noting that discipline rarely occurs…) Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275, 296 (2007).
The Defendant Wehling was the only person subject to investigation, where El Aemer filed complaints against her constituents and co-conspirators as well to no remedial effect. The defendants who are licensed to practice law were not investigated or disciplined by the Office of Attorney Ethics which undermines the use of disciplinary mechanisms as an example of an adequate alternative remedy for prosecutorial misconduct.
The unfortunate reality is that, regardless of a prosecutor’s theoretical amenability to professional discipline by an association of his peers,” Imbler v. Patchman, 424 U.S. at 429, the discipline that the Imbler Court reasonably expected to occur in the wake of its decision has occurred with shocking rarity. Prosecutorial misconduct remains a substantial cause of wrongful convictions, yet the offending attorneys are virtually never disciplined as herein.
In the year 2000 A conferences on wrongful convictions in the US criminal justice system was held Saturday, May 6 in East Brunswick, New Jersey. Panelists at the Wrongful Convictions Conference included lawyers and advocates for the wrongfully convicted, as well as individuals who had been released from either life sentences or death row.
In retelling the series of events that led to the wrongful convictions of Jimmy Landano and Earl Berryman, advocates for the men emphasized the way in which prosecutorial abuses of power altered the outcome of the trials. The inability of the defendants—both working class men who lived in the New York metropolitan area—to pay for expensive lawyers placed them in a highly disadvantaged position. While contending with the aggressive maneuvers of state attorneys out to secure convictions, Landano and Berryman were forced to rely on the services of court-appointed attorneys.
While many of these individuals are able lawyers, they are often overburdened with heavy caseloads and lack the financial and personnel resources necessary to build a strong defense. The stories told by Landano and Berryman reveal a great deal about the workings of a criminal justice system that both feeds off and perpetuates legal and social inequalities. Landano fought the conviction for several years and lost his appeals at every level of the court system (the Supreme Court refused to hear his case), a federal judge ordered a raid on the files of all government agencies that played a part in Landano’s prosecution.
The material uncovered revealed that the prosecution consciously targeted an individual that they knew was not guilty, with one document even explicitly stating this. Berryman was eventually convicted and sentenced to life in prison. Based on the material presented at the conference, it appears that Earl Berryman’s conviction arose out of a confluence of factors. His case epitomizes the ways in which the legal system targets certain layers of the population.
When he was first arrested, police told Berryman that if he implicated Michael Bunch, another man charged in the crime, the charges against him would be dropped. Berryman refused. Berryman and Bunch never saw their court-appointed attorneys before going to trial. Berryman’s lawyer was later disbarred. Earl Berryman’s conviction seems to have been based on even less credible evidence than that which led to Landano’s conviction.
Professor Mike Israel stated, “The problem is not only social class.” He then went on to remark that wrongful convictions were in large part the product of “police culture and the general mood of getting down on crime.” But he failed to make the point that the methods of the police and prosecution overwhelmingly target workers and the poor.
In Pottawattamie County v. Mcghee the A.C.L.U. provided that the New York State Bar Association Task Force on Wrongful Convictions (“Task Force”) found that prosecutorial misconduct was a substantial cause of wrongful conviction in the state, but that prosecutors rarely were disciplined, either by their own offices or by state disciplinary authorities. See Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions (2009) (“Task Force Report”), at 19. 29-31, available at http: www.nysba.org/Content/Content Foldrs Task Force on Wrongful Convictions/FinalWrongfulConvictionsReport.pdf.
The Task Force assembled a panel of judges, prosecutors, and defense attorneys to “identify the causes of wrongful convictions” and “attempt to eliminate them.” Task Force Report, at 5. The Task Force studied 53 cases of wrongful convictions that were overturned by “exoneration,” and conducted hearings at which practionars from both sides, and exonerated individuals themselves, testified. Id. at 5, 17.
It concluded that 31 of those wrongful convictions were attributably to “governmental practices.” Id. at 7. Yet, it reported, “Research has not revealed any public disciplinary steps against prosecutors.” Task Force Report at 29.
The Task Force surveyed District Attorneys in New York, 20 of whom responded to a written questionnaire, to determine “whether sanctions for prosecutorial misconduct had ever been imposed,” and found that just one prosecutor had been referred to an outside attorney disciplinary committee by these offices and just one prosecutor had been sanctioned internally. Id at 30.
Testimony the Task Force credited revealed that, despite findings by courts of prosecutorial misconduct in approximately 200 cases between the late 1970’s and 2003 prosecuted in several counties, only two prosecutors in those counties had been disciplined by their own offices. Id. at31.
The Task Forced defined “governmental practices” to include the use of false testimony, violation of Brady, improper evidence retention or transfer, and refusal to investigate alternative suspects to crimes. Task Force Report, at 19. Thus, the Task Force concluded, in a section focusing on Brady disclosure, “there is little or no risk to the specific individual [prosecutor] resulting from failure to follow the [Brady] rule.” Id. at 29.
In California, the Commission on the Fair Administration of Justice (“Justice Commission analyzed 2,131 California cases where claims of prosecutorial misconduct had been raised. See Final Reports, California Commission on the Fair Administration of Justice (Gerald Uelemen ed., 2008) available at http://www.ccfaj.org/documents/CCFAJFinalReport/pdf,at71.
While courts had found prosecutorial misconduct in 444 of these cases, the Justice Commission focused on 54 cases that resulted in the reversal of the conviction and which, pursuant to California Law, should have been reported to the state bar association for disciplinary investigation. Id. The Commission could not find a single instance where any such referral was made. Id. The Commission concluded that “our reliance upon the State Bar as the primary disciplinary authority is seriously hampered by underreporting.” Id.
Moreover, the Justice Commission cited no specific examples of internal discipline in those case or any others. See id. At 73-74. A study conducted by the Chicago Tribune in 1999 found that out of 381 nationwide reversals in homicide cases (67 of which carried death sentences) since 1963 for “using false evidence or concealing evidence suggesting innocence,” only “one [prosecutor] was fired, but he appealed and was later reinstated with back pay”, “and then received an in-house suspension of 30 days”; and a “third’s law license was suspended for 59 days, but for other misconduct in the case.” Maurice Possley & Ken Armstrong, The Verdict: Dishonor, Chicago Tribune, January 11, 1999, at c1. None were disbarred or received any public station. Id.
Legal scholars and commentators agree: “prosecutors are rarely, if ever, punished” by professional disciplinary bodies, even when engaged in “egregious” misconduct. Shelby A.D. Moore, Who is keeping the Gate? What Do We Do When Prosecutors Breach the Ethnical Responsibilities They Have Sworn To Uphold? 47 S. Tex. L. Rev. 801, 807 (2006).
A comprehensive study of all reported cases across the country professional discipline for prosecutorial misconduct found only 27 instances in which prosecutors were disciplined for unethical behavior occurring were disciplined for unethical behavior occurring at an affecting the fairness of criminal trials. Zacharias, supra, at 751-54, Tables VI & VII (2001). See also, Bennet T. Gershman, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685, 722 (2006) (“most commentators agree that professional discipline of prosecutors is extremely rare”); Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 D.C. L. Rev. 275, 276 n.7 (2004), citing Bennett T. Gershman, Prosecutorial Misconduct, Section 14.1., n.5 (2d ed. 2001) (citing “hundreds of cases of flagrant misconduct, none of which resulted in punishment”); Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations; A Paper Tiger, 65 N.C. L. Rev. 693,718, 720, 730 (1987) (finding only nine cases where professional discipline of prosecutors was sought for “Brady-type” violations, and only six where it was actually imposed, after conducting an exhaustive search of myriad materials, as well as surveying bar counsel in all states). See also Jeffry Weeks, No Wrong without a Remedy, 22 Okla. City. U.L. Rev. 833, 881 (1997) (updating Rosen’s research 10 years later to add only seven additional cases where discipline was sought, and only four where it was imposed).
As persuasive as these statistics are, even more compelling are the individual reported accounts of the failure to discipline prosecutors who, either intentionally, or with cavalier disregard, obtain convictions by violation the due process and equal justice rights of the accused.
Alberto Ramos, a 21 year old college student and part-time child care worker, was convicted in 1985 of forcibly raping a five year old girl at the day care center where he worked. See Stephen Gille, In the Pink Room, in 124 TriQuarterly 257 (Leigh Buchanan Bienen et al., ed.s, Northwestern U. Press), discussing People v. Ramos, 614 N.Y.S.2d 977 (N.Y. App. Div. 1st Dept. 1994).
The prosecutors deliberately concealed evidence in her file showing that Ramos almost certainly was innocent of the crime and that the crime never occurred. I.d.
Only because of discovery in a civil case that the child’s mother brought against the New York City funded day care center was the suppressed discovery revealed, seven years after Ramos’s conviction and after he had been repeatedly beaten and sexually assaulted in prison. See Gillers, supra, at 261; Ramos, 614 N.Y.S. at 980.
The Bronx District Attorney’s Office vigorously fought Ramos’s successful motion to vacate his conviction and brought a frivolous appeal his conviction and brought a frivolous appeal that the appellate court resoundingly rejected. See Ramos, at 983-94.
Discover in Ramos’s subsequent lawsuit against the City of New York revealed that, out of 72 reported cases of prosecutorial misconduct, only one prosecutor, who had been named in repeated appellate reversals, was disciplined in any respect. See Yaroshefsky, supra, at 281-82 (noting that the prosecutor was “suspended for four weeks and lost two weeks pay,” and on his return was immediately granted a bonus and a series of merit increases).
As for Ramos’s prosecutor, even though both the trial and appellate courts found, at the very least, that she had handled Ramos’s case in a “cavalier and haphazard” manner, People v. Ramos, No. 3280/08, Slip. Op. at 8 (N.Y. Sup. June 1, 1992), aff’d, 614 N.Y.S.2d 977 (N.Y. App. Div. 1st Dept. 1994), the New York State attorney disciplinary committee failed to institute any professional sanctions not even a private reprimand. Yaroshefsky, supra, at 281 n. 26. See also Ramos v. City of New York, 729 N.Y.S.2d 678, 682 (N.Y. App. Div. 1st Dept. 2001) (conduct in Ramos prosecution was “far astray from “diligence,” calling “good faith,” and “even honesty,” into question).
The disciplinary committee conducted a secrete interview of the prosecutor and “closed the investigation without affording Ramos or his counsel any notice or opportunity to be heard.” Id. at 281 n. 27. Similarly, no professional discipline was meted out in the troubling case of Delma Banks. See Banks v. Dretke, 540 U.S. 668 (2004).
This Court reversed and remanded Bank’s capital murder sentence based on the Texas prosecutors’ withholding of evidence undermining key witnesses’ credibility at trial, their knowing failure to correct false testimony, and their false and/or misleading argument to the jury. Id. at 675-76.
Banks’ prosecutors continued to “hold secrete Key within. In Pottawattamie County v. Mcghee the A.C.L.U. found that witnesses’ links to police and allowed their false statements to stand uncorrected” throughout direct appellate and collateral review proceedings. Id. at 675. In all, Banks spent 24 years on death row. See Moore, supra, at 804.
The prosecutors’ misconduct in this well known case could not have been a secret to the Texas professional disciplinary authorities, yet there is no record on file of any discipline of the prosecutors involved, and “it is unlikely the prosecutors will ever be punished for violating Mr. Bank’s constitutional rights.” Id.
Discovery obtained in another civil rights lawsuit, Shih-Wei Su v. City of New York, No. 06 Civ. 687 (E.D.N.Y. 2006), revealed that, our of 84 reported cases in Queens, New York, between 1989 and 2003 overturning convictions based on prosecutorial misconduct, not one prosecutor was disciplined either externally or internally. See Letter to the Court, dated July 24, 2008, Su v. City of New York, supra, Docket No. 111 (Jul. 24, 2008), available at, http://ecf.nyed.uscourts.gov/cgi-bin/iquery.pl? 100207525478475-L_665_0-1.
The prosecutors who escaped discipline included Su’s, notwithstanding Second Circuit Judge Calabresi’s conclusion that this prosecutor had “knowingly elicited false testimony form a crucial witness,” Su v. Filion, 335 F.3d 119, 121 (2d Cir. 2003).
One of the cases relied upon by Su in his civil lawsuit, People v. Steadman, 623 N.E.2d 509 (N.Y. 1993), involved a high level prosecutor’s deliberate creation of an elaborate wall to “shield’ the trial assistants” from knowledge of his secret promise of leniency to the principal prosecution witness’s attorney. 623 N.E. 2d at 511-12.
The prosecutor was not disciplined despite the finding of New York’s highest court that he had made a “determined effort to avoid accepted standards of conduct” under state law requiring disclosure of quid pro qou deals with witnesses. Id. The lack of prosecutorial discipline may be attributable to an overarching institutional failure of both professional disciplinary committees and individual prosecutor’s offices to establish effective procedures to investigate allegations of misconduct. “Displinary authorities have limited resources to prosecute violations of the professional rules.” Zacharias, supra, at 756 (2001).
Properly investigating such claims, particularly if the misconduct occurred during the investigative stage of a case, involves reconstructing events that often occurred several years prior, where little “hard” evidence exists. But most disciplinary committees function as reactive bodies, making them very effective for sanctioning an attorney who bounced an escrow check, but far less so for determining whether a prosecutor coached a witness to lie under oath. They may be reluctant to take seriously complaints by criminal defendants. See Rosen, supra, 733-35.
Bar disciplinary authorities in many jurisdictions are controlled by the judicial branch and this “separation of powers concerns can also make bar authorities hesitate to intrude on the prosecutor’s province.” Stephanos Bibas, Prosecutorial Regulation versus Prosecutorial Accountability, 157 U. Pen. L. Rev. 101, 119-120 9forthcoming 2009), available at, http://ssrn.com/abstract=1313215), citing Zacharias, supra, at 761.
As the A.C.L.U. noted in Pottawattamie County v. Mcghee , even if professional disciplinary authorities had the administrative capability of meaningfully investigating a significant number of allegations of prosecutorial misconduct, they would still be handicapped by the absence in most states of specific provisions governing prosecutor’s pre-charging conduct as investigators. See, e.g., Model Rules of Professional Responsibility, Rule 3.8 92009) adopted in some form in most states) (setting forth the “Special Responsibilities of a Prosecutor” relating to the initiation and the conduct of criminal proceedings, but containing no provisions addressing a prosecutor’s ethical responsibilities in investigating a case before filing charges); Davis, supra, at 284 (noting that Model Rule 3.8 “fails to address” prosecutors’ “relations with the police and other law enforcement officers”).
Thus, as Zacharias pointed out, “many of the rules of professional conduct are blunt instruments altogether inapplicable, or barely applicable, to full-time prosecutors.” Zacharias, supra, at 725. While individual prosecutor’s offices, unlike outside bar committees, may have the resources or the knowledge to investigate or discipline, they have not demonstrated the will. Although several prosecutors have argued that prosecutor’ offices “often” have internal mechanisms for discipline, Nat’l Ass’n of AUSAs, et al.
They have never cited specific examples other than the Department of Justices’ Office of Professional Responsibility. And compelling evidence suggest otherwise.
The New York Task Force and the California Justice Commission both found that prosecutor’s offices in their respective states lacked consistent or transparent internal policies or procedures for attorney discipline. See Task Force Report at 30; Justice Commission found a “complete lack of transparency of internal discipline procedures’ within state prosecutors’ for individuals accused of misconduct. Justice Report, at 73-74.
As the A.C.L.U. noted in its Amicus Brief the Justice Report, at 73-74 Cook County described the substantial involvement its prosecutors have in the investigation of criminal cases, see Cook County Br. 5-6, 21-22, but nowhere mentions any procedure for or history of disciplining attorneys for misconduct. When the Chicago Tribune attempted to find out how often Cook County prosecutors are internally disciplined for prosecutorial misconduct, it could not find any instances of prosecutors facing dismissal for misconduct from 1980-1999, even though the Tribune found “trial after trial where prosecutors cheated, lied or spun out of control during arguments before a jury.” Possley & Armstrong, The Flip Side of a Fair Trial, supra.
Finally, Imbler’s theoretical observation that prosecutors are more amenable to discipline than other state actors, such as police, therefore reducing the need for prosecutorial accountability under Section 1983, unfortunately has not proven to be true in practice. Police officers are subject to internal and external discipline to a far greater extent than most prosecutors.
Internally, most police departments have “internal affairs” bureaus comprised of officers assigned to investigate and prosecute crimes committed by their own. In addition, municipalities in 26 states and Washington, D.C. have civilian review boards to investigate allegations of police misconduct and make recommendations for remedial actions. See Police Assessment Resource Center, List of Oversight Agencies, available at
http://www.parc.info/oversight_agencies.chtml (listing police oversight agencies by state_. Independent investigators, who interview witness, gather evidence, and review court documents and transcripts in order to make factual findings, staff many of these civilian review boards. However, there appear to be no disciplinary boards anywhere dedicated to investigating prosecutorial misconduct allegations.
Thus, the possibility of outside discipline does not suggest the conclusion that prosecutors should receive more favorable treatment than police for performing the same function. Buckley’s refusal to extend immunity to functions that are not uniquely prosecutorial, but are routinely performed by police officers, continue to make sense.
Prosecutorial opposition to civil liability has argued that prosecutors are deterred from committing misconduct by the threat of sanctions or reversals by trial or appellate court judges.
The A.C.L.U. Amicus Brief also noted that 16 percent of all capital cases are reversed on appeal for prosecutorial misconduct, which tends to prove that prosecutors are not sufficiently deterred. Id at 14 n. 7, citing James S. Liebman, et al., A Broken System: Error Rates in Capital Cases (2000). Many prosecutors responsible for misconduct found by courts are “repeat offenders.”
The California Justice Commission identified 30 such offenders, out of 347 reported decisions of prosecutorial misconduct; two-thirds of these prosecutors committed the same offense more than once. Justice Commission Report, at 74. See also Andrea Elliot, Prosecutors Not Penalized, Lawyer Says, N.Y. Times, December 17, 2003, at B1 (14 OUT of 74 Bronx prosecutors found by judges to have committed misconduct were cited in several cases”).
The “horizontal” structure of many prosecutors’ offices, in which different attorneys handle trials and appeals, the high rate of turnover in prosecutors’ offices, and the fact that few court decisions mention the prosecutor’s name, diminish deterrence. See generally Zacharias, supra, at 770. See also Yaroshefsky, supra, at 291 (“judicial oversight is unlikely to provide a remedy in most cases”).
The Solicitor General surprisingly contended that other civil remedies provide just compensation for virtually all victims of prosecutorial misconduct. See S.G. Br. 29033. Yet only 25 states, Washington, D.C., and the federal government have statutes under which the wrongfully convicted may claim compensation. Almost all of these statutes contain substantial barriers to recovery. See Howard S. Masters, Revisiting the Takings-Based Argument for Compensating the Wrongfully Convicted, 60 N.Y.U. Ann. Surv. Am. L. 97, 108 (2004-2005) (“most existing compensation statutes require wrongfully convicted individuals to surmount onerous obstacles in order to be eligible for compensation”).
In almost all cases, unjust conviction statutes require that in order to recover, the individual seeking compensation must affirmatively prove his or her innocence of the underlying crime. Moreover, many states impose the further requirement that a claimant show that he or she “did not, by any act or omission on his part, either intentionally or negligently contribute to brining about his arrest or conviction. See e.g. CA PENAL Section 4900-4906; N.J. Stat. Ann. Section 52:4C-I, W.VA. Cod Ann Section 14-2-13a; Wis. Stat. Ann. Section 775.05.
This provision often “denies justice to those who were coerced, explicitly or implicitly, into confessing or pleading guilty to crimes it was proven they did not commit.” See Innocence Project, Compensating the Wrongfully Convicted Fact Sheet, available at http://www.innocenceproject.org/Content/309.php.
Finally, many statutes limit recovery to individuals whose convictions were vacated on certain statutory grounds, “consistent with innocence,” see e.g. N.Y. CT. CL. ACT Section 8-b, which may preclude cases where courts vacated convictions based on prosecutorial misconduct. For example, New York woman Betty Tyson spent 25 years in prison before her conviction was vacated based on a finding that her trial prosecutor withheld exculpatory evidence. See Tyson v. State, 698 N.Y.S. 2d 410, 415-16 (N.Y. Ct. Cl. 1999).
The Court of Claims dismissed her claim for compensation, finding that the legislature had “placed a high threshold upon those seeking recompense under this statute,” and thus, “there can be no recovery here and no opportunity for her to prove her innocence, perhaps her ultimate goal.” Id. The indifference of such statutes to constitutional violations makes them wholly inadequate substitutes for Section 1983.
The A.C.L.U. agreed with the Pottawattamie County, that “There should be serious consequences for prosecutors whose misconduct deprives a criminal defendant of his or her constitutional rights.” But at present, and since Imbler, experience has shown that this rarely is the case. The handful of times it has occurred is no basis to deny relief pursuant to 1983, and will only encourage, rather than deter such misconduct in the future. Surely due process is offended by the fabrication of evidence that results in a false guilty plea, just as surely as a false jury conviction. “The greatest crime of all in a civilized society is an unjust conviction,” wrote the haring court in Ramos. “It is truly a scandal which reflects unfavorable on all participants in the criminal justice system.” People v. Ramos, 614 N.Y.S.2d at 984.
New Jersey conference exposes cases of wrongful conviction and imprisonment By Andrea Peters 10 May 2000 http://www.wsws.org/en/articles/2000/05/conv-m10.html