The prosecution never rests -- from lying "Early" and often

Whenever there is an opinion piece in the mainstream media about prosecutors doing evil things, there always is the disclaimer: "The majority of prosecutors in this country are ethical and truthful, and we are just dealing with a 'few bad apples' here." Once upon a time, I believed that, too. No longer.

The "tipping point" for me was not simply the Duke Lacrosse Case, but the statements of other prosecutors around the country when the charges still were in play and the story was dominating the talk shows in 2006 and 2007. In particular, Norm Early was especially outrageous.

Early is not a bit player among prosecutors in the USA. While he no longer is a district attorney, for many years he was the elected DA in Denver, Colorado, and was a major player in Democratic politics there. He later served as media director National District Attorneys Association, an organization that serves as “the voice of America’s prosecutors and to support their efforts to protect the rights and safety of the people.”

According to the NDAA's official "mission," the organization professes "to foster and maintain the honor and integrity of the prosecuting attorneys of the United States in both large and small jurisdictions by whatever title such attorneys may be known
." Actually, given Early's conduct as the former face of the organization, perhaps its Official Mission should be "encouraging prosecutors to lie, hide exculpatory evidence, convict innocent people, and get away with it, all while hiding behind the robes of U.S. Supreme Court justices."

If you wish to get a sense of the outrageous conduct of Early in the Duke case, K.C. Johnson's Durham-in-Wonderland blog had an excellent post on the man and his statements that were made while he was a major player for the NDAA. If this guy is typical of prosecutors in the USA, then there is no hope for any of us.

I would urge you to read the post if for no other reason than to understand how these people think and the lies they will tell in order to pursue innocent people. Furthermore, to get a sense of how prosecutors view the rights that Americans have to defend themselves against criminal charges, read what Early had to say about that, too. According to typical prosecutors, we should go directly from accusations to sentencing. Why bother with innocence, since prosecutors tell us there are no innocent people?

For me, the one event that seals my views has been the situation with Carola Jacobson. A prosecutorial office that will engage in the outright murderous assault against a single mother, a good woman who has done nothing to deserve this treatment, is nothing but a den of liars. But, the U.S. Supreme Court says that liars like this are special people who deserve special protection. The SCOTUS, however, does not say how we can be protected against a pack of vicious dogs as make up the Maricopa County District Attorney's office and other prosecutorial offices around the country.

Happy Easter.

How far should prosecutorial immunity go? Apprently, SCOTUS believes into infinity. Or, Liability for Thee, but not for Me!

Because this blog deals with prosecutorial misconduct, the issue of immunity is front-and-center. Years ago, the U.S. Supreme Court (SCOTUS) ruled that judges and prosecutors have absolute immunity from civil action, which means that for the most part, they are not liable for pursuing wrongful convictions.

Because the various state bars are very, very reluctant to discipline prosecutors, the typical prosecutor knows he or she pretty much is invulnerable. Yes, they can be criminally prosecuted, but no prosecutor in the history of this country ever has been convicted of criminal malfeasance for conduct in the "line of duty," even though it has been obvious that at least in some cases, the criminal behavior was deliberate and cold. Thus, armed with that knowledge, a prosecutor knows that he or she does not operate with the same set of personal restrictions that hold back the worst behavior in other occupations.

The SCOTUS ruled in the Imbler v. Pachtman case (1976) that district attorneys or prosecutors were found to have full immunity from civil suits resulting from their government duties. Unlike the qualified immunity that was given to many public officials, the justices reasoned that while a wrongly-charged defendant would not be able to seek legal satisfaction against a prosecutor who engaged in outrageous conduct, nonetheless the immunity would better fit a broad "social good" as the court saw it.

Obviously, the court opened a huge can of worms, as it basically said that as long as a prosecutor can claim he or she was doing something within the scope of prosecutorial duties, then that person cannot be sued, even if he or she deliberately withheld evidence. Furthermore, the SCOTUS declared that

alternative sanctions to civil lawsuits against prosecutors were available to deter a prosecutor’s malicious and dishonest behavior. Indeed, the availability of bringing criminal charges against a prosecutor, as well as the availability of professional discipline by bar associations, would “not leave the public powerless.” “These checks,” said the Court, “undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.”

People who saw that decision as overreaching had some hope in a case Pottawattamie County v. McGhee in which prosecutors clearly framed innocent people for a murder. In fact, prosecutors claimed in their defense the following outrageous statement: there is no constitutional "right not to be framed.” That's right; prosecutors were claiming that even if they framed someone, that was OK, as the Constitution does not forbid it.

Unfortunately, the case was settled before the Supremes could rule on it. However, they gave what I hold to be a partial answer in Connick v. Thompson, declaring that the DA's office of New Orleans Parish could not be held liable for failure of its prosecutors to turn over exculpatory evidence. In other words, the SCOTUS ruled that violation of the Brady Rule inferred no particular responsibility upon the people who were responsible for violating it.

Keep in mind that most readers of this post are not prosecutors, nor are public officials. That means that the laws regarding liability are imposed differently upon them than upon those who are sworn to uphold the law and who hold special powers in bringing people to trial. The people with greater responsibility have less liability than everyone else.

If that seems to be an outrage, that is because it IS an outrage. What SCOTUS has done once again is to declare that prosecutors are a special class of people who, de facto, do not have to obey the law. And, guess what? There are lots of prosecutors who take advantage of that privilege and, surprise, surprise, violate the law with impunity.

The Rule of Law is supposed to mean just that: rule of law. A nation that has Rule of People Who Do Whatever They Want cannot survive as a decent society.