“Our goal isn’t to look for blame. Our goal is to correct injustice.”
December 2, 2013 7:43 AM   Subscribe

This post was deleted for the following reason: Poster's Request -- frimble



 
Yeah see. . . this is why we need better funding for the defense of criminal cases. If criminal defendants had the same access to resources as prosecutors do, I wonder whether this sort of thing would happen.

But I doubt that it would go away entirely. The rules of evidence are significantly discretionary, i.e., there's a pretty wide swath of potential evidence that could be admitted or excluded based on a judgment call by the judge, and there really isn't any way of changing that. As long as the voting public likes hanging judges, hanging judges will continue to be elected/appointed. Not to mention the fact that that same voting public is your jury pool.

Changing the funding for criminal defense and appeals would certainly help, and I think we ought to do that, but I'm having a lot of trouble pointing to specific changes we could make that aren't essentially "People should stop being terrible." Which is why we have a criminal justice system in the first place. Plato couldn't solve that problem, after all.
posted by valkyryn at 8:28 AM on December 2, 2013 [7 favorites]


I'm OK with blame
posted by thelonius at 8:33 AM on December 2, 2013 [5 favorites]


Yeah, reading this case, I think it's a shame they're putting a lot of focus on the "one bad cop", and ignoring what seem to be systemic problems. Pressure from on high to obtain convictions. A system where people are allowed to inform on others for immunity or money. The fact that a police officer's word is always given ten times the credence of a non-police officer.

The other point - and this is one I always have to ask, as someone who has seen how war crimes start and how their prosecutions are handled - is what if Scarcella did what he did in a climate and a culture where that was encouraged? What if he wasn't one rogue cop - what if the department at that time just wanted to "put away the bad guys" by any means necessary?

What I find interestingly notable is that every one of the wrongfully convicted suspects were either previous felons or had previously been charged for a crime - and that guy that said Scarcella had said he didn't do enough time for murder - only seven years - and was convicted again. I also think about how high the crime was at that time, and I wonder if they allowed their desire to lower crime override the desire for individual justice in individual crimes.

There seem to be no innocents here, which is certainly a fact of life, but makes scapegoating one guy troublesome.
posted by corb at 8:42 AM on December 2, 2013 [12 favorites]


If you ever want to get kicked off a jury...

Just mention that you don't give more weight to what a police officer says happened than to what the accused said happened.
posted by Windopaene at 8:52 AM on December 2, 2013 [13 favorites]


Well, there are in fact innocents here, and some of them are still in prison. That's the whole point.

Charles Hynes needs to go to prison too. Every day brings more revelations that the reign of corruption in Brooklyn started at the top.
posted by spitbull at 9:06 AM on December 2, 2013 [1 favorite]


I also think about how high the crime was at that time, and I wonder if they allowed their desire to lower crime override the desire for individual justice in individual crimes.

My old con law professor referred to this as the "rough justice" approach. Basically the ends justify the means, people are either 'good guys' or 'bad guys', and the goal is to put the bad guys in prison. How that happens is less important than the ultimate result.

Though it's easy to see why that's wrong, it's not exactly an unpopular approach when communities start to feel threatened by crime.
posted by Kadin2048 at 9:08 AM on December 2, 2013 [2 favorites]


I also think about how high the crime was at that time, and I wonder if they allowed their desire to lower crime override the desire for individual justice in individual crimes.

Yes, but even if the guy you send to jail for murder is a very bad guy, if he's not the one who did it, you're letting a murderer get away.
posted by Kirth Gerson at 9:17 AM on December 2, 2013 [18 favorites]


Though it's easy to see why that's wrong, it's not exactly an unpopular approach when communities start to feel threatened by crime.

The downside being that this kind of justice corruption leads to the Mayor, who was the DA while police were torturing false confessions in capital cases, having a nephew who strangely doesn't face a trial despite punching someone to death until many many years later.

The cost of this 'rough justice' to Chicago in just settlement dollars paid out this year is roughly double the amount that would have kept those 50 closed public schools open. And that is just so far. There are more settlements coming. The other costs in terms of the effects of false imprisonment, neighborhood devastation, racial corralling, police and judicial distrust and all the other things are probably incalculably high.

So even on the most basic amoral economics-only ledger it is a false economy/ false security.
posted by srboisvert at 9:30 AM on December 2, 2013 [10 favorites]


Yes, but even if the guy you send to jail for murder is a very bad guy, if he's not the one who did it, you're letting a murderer get away.

Yep. Every wrongly convicted criminal (whether the wrongly convicted party is a boy scout or not) represents someone getting away with a crime. Only the shallowest understanding of "being tough on crime" overlooks the importance of making sure the system actually works for defendants.
posted by saulgoodman at 9:33 AM on December 2, 2013 [4 favorites]


even if the guy you send to jail for murder is a very bad guy, if he's not the one who did it, you're letting a murderer get away.

THIS. A MILLION TIMES. How many more times with the real murderer kill again, knowing that somebody else took his rap?

If you ever want to get kicked off a jury...
Just mention that you don't give more weight to what a police officer says happened than to what the accused said happened.


We've reached a point of police malfeasance and corruption in the USofA where police can no longer be trusted without substantial independent corroboration. TWENTY YEARS AGO, I was on a jury for a murder case where, after it was declared a mistrial, the prosecutor had a chat with jurors and openly admitted that the entire case was intended to force the Defendant to turn against his own brother, who they believed really was the killer. Sadly, blood was thicker than common sense for this young man and he was convicted on the retrial. An intentional miscarriage of justice (or should we call it an abortion?) and the reason I have not trusted the word of the Police ever since.
posted by oneswellfoop at 9:37 AM on December 2, 2013 [8 favorites]


Changing the funding for criminal defense and appeals would certainly help, and I think we ought to do that, but I'm having a lot of trouble pointing to specific changes we could make that aren't essentially "People should stop being terrible."

there is one simple change: accountability. judges and prosecutors have little in the way of practical checks and balances on their careers when they screw up and/or otherwise act badly. In the "crime lab scandal" in MA, there is lots of evidence that prosecutors sought out the lab technician who was falsifying tests to work on their cases i.e. they knew she was providing false testimony, but there is no movement to hold them accountable and she will be treated like just another bad apple. Prosecutors who suborn cases get to be judges, judges whose decisions are overturned over and over again continue to sit, etc.

The right-wing has little interest in justice as a working system, much like they are little interest in government as a working system. And the left... instead of funding defense, what would really change things would be funding "legal aid." But the consequences of that are too radical.
posted by ennui.bz at 9:54 AM on December 2, 2013 [4 favorites]


“People will look for blame,” said John O’Mara, who leads the Conviction Integrity Unit. “Our goal isn’t to look for blame. Our goal is to correct injustice.”
I'm disappointed they didn't add "and make sure it doesn't happen again". I've made the computer analogy before: It's good that you're fixing the bug, but when something's important you should also think about how the bug got there in the first place.
posted by benito.strauss at 10:10 AM on December 2, 2013 [1 favorite]


there is one simple change: accountability.

Except that both prosecutors and judges are elected officials in most jurisdictions. Even when they aren't directly elected, they're appointed by officials who are themselves elected. So almost every prosecutor and judge in the country is, either directly or indirectly, accountable to voters. And voters really like "rough justice" DAs and hanging judges.

More than that, it seems that less accountability might actually be better. Federal judges are appointed "during good behavior" and impossible to remove shy of congressional impeachment, making them almost entirely immune to public sentiment. Federal prosecutors are appointed by the President with the advise and consent of the Senate, but Assistant U.S.A.s can be hired basically at will, shielding them from a lot of the politics of the DOJ. And all these cases you hear about massive miscarriages of justice in the criminal courts? They're all state courts. Indeed, if you're a defendant in any lawsuit, civil or criminal, you want to be in federal court, as the odds of getting railroaded are much, much smaller. Yet federal courts have far less accountability than state courts do. So I really don't think more accountability is the solution.

And the left... instead of funding defense, what would really change things would be funding "legal aid."

I'm really not sure I understand the distinction you're drawing. Seriously. What do you mean?
posted by valkyryn at 10:15 AM on December 2, 2013


valkyryn, I can't speak for ennui.bz, but when I say "accountability" for judges and prosecutors, I mean two things, both of which address your concerns head-on. First, we should explore ways to make it easier, possibly mandatory, to remove people from elected or appointed office if they commit intentional or repeated misconduct.

But second, and perhaps more importantly, we should hold people personally accountable beyond losing their jobs if the misconduct is egregious enough. In any other circumstances, if a person intentionally causes another person to be held against her will in a cage for many years, that person is guilty of a crime. At the very least, the victim of the caging is entitled to pursue monetary damages. But qualified (and in some cases, absolute) immunity means that defendants who are wrongfully incarcerated don't have that recourse against corrupt prosecutors and judges. I think that withdrawing (or at least, allowing exceptions to) immunity in cases where it can be proved that the misconduct that caused a wrongful conviction was intentional or willful would send a powerful message about the ethical obligations of people who put other people in cages for a living.
posted by decathecting at 10:46 AM on December 2, 2013 [1 favorite]


The problem with that is that you would then have a very, very hard time finding people to work in those professions. The only reason people are willing to work for the police force is because they know that if they do things to the best of their ability, they are not going to be put in jail for it. Like soldiers, who, at least in this Army, know that if they followed someone else's orders, that is a defense. Yes, you're talking about people who are willfully doing it - but people aren't going to think of that. They're going to think, "My god, that could be me, if I made one bad call" and be turned away from the profession entirely.

Which...maybe is fine...but most would not agree.
posted by corb at 10:49 AM on December 2, 2013


The only reason people are willing to work for the police force is because they know that if they do things to the best of their ability, they are not going to be put in jail for it.

Wouldn't they still know that? The original comment concerned exceptions to immunity for deliberate abuse of authority or woeful negligence/incompetence.

Should anybody be able to enter any field expecting a free pass on those things?
posted by saulgoodman at 10:59 AM on December 2, 2013 [1 favorite]


The thing is, immunity is probably essential to the functioning of the criminal legal system. Even though there isn't misconduct the vast majority of the time, if you make it possible to sue public officials and witnesses for their actions in criminal cases, you open up an absolute tidal wave of litigation. The government would spend most of its time litigating meritless misconduct cases rather than actually prosecuting criminal charges. As even getting a meritless case dismissed can take a huge amount of resources, the cost in terms of procedural overhead for both the prosecutor and the courts would be simply prohibitive.

That's to say nothing of the chilling effect upon witnesses. The government has a stable of lawyers on staff. It would have to hire more if this can of worms were opened up. But witnesses in criminal cases generally couldn't even afford a lawyer if they were facing criminal charges themselves. How are they supposed to be able to testify under the threat of massively expensive litigation about their testimony? You'd never be able to get anyone to testify. Which is why witnesses in criminal cases are afforded absolute civil immunity for their testimony. They can still be prosecuted criminally for perjury, but they stand no danger from the defendant himself. It can't really be any other way.

Abuse cannot be eliminated from the system, and I haven't come across any ideas to mitigate what abuse there is which would leave it functioning.
posted by valkyryn at 11:04 AM on December 2, 2013 [2 favorites]


defendants who are wrongfully incarcerated don't have that recourse against corrupt prosecutors and judges

I really hate this use of the word "corrupt". These officials may be bad at their jobs, even engaging in outright misconduct, but they're not "corrupt". They're not accepting improper payments, nor are they being unduly influenced by one party or the other to take actions which are contrary to the law. Even the cops who are framing people don't really get anything out of it other than the misguided notion of having been tough on crime.
posted by valkyryn at 11:06 AM on December 2, 2013 [3 favorites]


Right, but in these cases, many of these people were performing what were accepted best practices in their field, even though now we would title them "abuse of authority." To prosecute them years later, for what were best practices at the time, may even be ethically the right thing to do, but it has a real danger of producing a chilling effect. And perceptions of these things do change over time.

To take a relatively innocent example: I remember when I was a kid, people talking about a "policeman's discount", where bars and restaurants would let cops eat for free, in the hope of attracting them to the area so that there would always be a cop around and they wouldn't get robbed. Now, I'm pretty sure that would be considered unethical - but did the people know that or consider it that at the time?

"Fraternal courtesy" still lets cops, firefighters, and soldiers and veterans out of tickets to this day. I can attest to this - I have definitely been in situations where I should have been ticketed, but instead was questioned about some aspect of my service and then let go with a warning. I imagine it's much more intense for cops. This is blatantly unfair to people who are not a member of an organization that cops consider their "brothers," and it seems to be on the way out - I remember a ticket-fixing scandal in the city that suggests as much, at least. But to go back and retroactively charge people for letting some people skate and ticketing others would be a nightmare.

I think if we want to change the behavior, we have to change the culture, and we have to change what we're asking people to do. We can't demand, for example, that the murder rate constantly drop every single year. We can't demand that police be held accountable for doing "work", because the only documentable work they can do is in arrests and tickets. We can't watch cop dramas that proliferate television, where search warrants are viewed as an inconvenience at best and a thing keeping the man from doing his job at worst. We can't cheer for the Dexters of the world and claim that we're wholeheartedly making a fairer and better system.
posted by corb at 11:09 AM on December 2, 2013 [1 favorite]


Want a concrete example of why eliminating immunity is not a good idea? Rape cases. It's already incredibly difficult to get victims of sexual assault to tell anyone, let alone file an official complaint with the police. If we let witnesses of crimes--and victims are witnesses--be even potentially liable for these sorts of statements, you'd see the number of rape cases drop to zero. Not because there wouldn't be any more rapes, but because the first move in every criminal defense attorney's book would be to work up defamation charges against the alleged victim.

I mean, look, I'm a criminal defense attorney. It's totally what I'd do. The ability to sue witnesses would amount to legalized witness intimidation. Make my job one hell of a lot easier, I tell you what.
posted by valkyryn at 11:13 AM on December 2, 2013 [8 favorites]


valkyryn: " Abuse cannot be eliminated from the system, and I haven't come across any ideas to mitigate what abuse there is which would leave it functioning."

Abuse can't be eliminated, but just to pick one easy, highly visible example at the federal level, we can do better than this.

The simple rule to follow is "don't let foxes investigate crimes that took place in hen houses." You let someone from outside the chain of command of the offending unit investigate the alleged abuse, preferably outside of the agency where it occurred, far enough removed from the social connections and funding streams that would cause the investigators to look the other way. This costs money, and you might have to pay agents a bit more to balance out the increased occupational hazard, but the status quo is indefensible.
posted by tonycpsu at 11:15 AM on December 2, 2013


You let someone from outside the chain of command of the offending unit investigate the alleged abuse, preferably outside of the agency where it occurred, far enough removed from the social connections and funding streams that would cause the investigators to look the other way.

Umm. . . as opposed to? This is the norm for internal affairs investigations. You're not really suggesting anything that doesn't already happen.

the status quo is indefensible.

And democracy is the worst form of government except for everything else.
posted by valkyryn at 11:25 AM on December 2, 2013


valkyryn: "The thing is, immunity is probably essential to the functioning of the criminal legal system. Even though there isn't misconduct the vast majority of the time, if you make it possible to sue public officials and witnesses for their actions in criminal cases, you open up an absolute tidal wave of litigation."

That's a good rhetorical tack to choose, our course - we all know it would be terrible to allow suits against witnesses in criminal cases. But nobody suggested that in this thread. They suggested that it be possible to sue public officials in criminal cases. And that's far from being as simply a bad idea as you're treating it here.

For instance, I presume you added the qualification "in criminal cases" specifically because it is, in fact, perfectly legal to sue public officials in civil cases. It happens all the time, and the system has not collapsed under the weight of this extraordinary burden. So why is an exclusion from criminal cases necessary?
posted by koeselitz at 11:26 AM on December 2, 2013 [2 favorites]


Even if the guy you send to jail for murder is a very bad guy, if he's not the one who did it, you're letting a murderer get away.

Yeah, I'd love to see one of these articles that, instead of focusing on the innocent people in jail, focused on the murder victims whose crimes are now unsolved, whose murderers are out there, scott free, and lay that on the head of the DA.
posted by straight at 11:26 AM on December 2, 2013 [1 favorite]


I didn't say anything about removing civil immunity for witnesses. My argument was not about that, and I did not address it.

I was talking specifically about immunity for prosecutors and judges. And even if I accept the arguments you make, that still leaves the question of why prosecutors should enjoy absolute immunity when even police officers only have qualified immunity. What is the relevant difference in their functions?
posted by decathecting at 11:28 AM on December 2, 2013 [3 favorites]


valkyryn: "Want a concrete example of why eliminating immunity is not a good idea? Rape cases."

This is actually a good example of why elimination of immunity for public officials is a good idea. There's a lot of evidence that reports of sexual assault are often outright ignored at many police departments. So what if the specific officers who blew off assault victims were subject to litigation in open court by those who sought to file the complaints? Wouldn't this provide strong incentive for police to actually do their jobs and listen to and investigate reports of sexual assault?
posted by koeselitz at 11:32 AM on December 2, 2013 [2 favorites]


valkyryn: " Umm. . . as opposed to? This is the norm for internal affairs investigations. You're not really suggesting anything that doesn't already happen."

No, not really. What I'm talking about is abandoning the pretense that these "internal affairs" units are impartial, and instead disbanding them, and standing up a separate agency that does its own investigations of all other law enforcement units, funded by its own dedicated dollars, and reporting directly to the executive branch of the government.

So instead of the FBI investigators reporting to the head of the FBI, they report to the Attorney General. Instead of internal affairs reporting to the chief of police, they report to the mayor / governor. This doesn't eliminate the possibility of wrongdoing, but it would reduce many of the incentives for investigators to look the other way.
posted by tonycpsu at 11:33 AM on December 2, 2013 [1 favorite]


I feel like if you're a prosecutor and you knowingly prosecute an innocent person, you should be charged as an accessory after the fact.
posted by Pope Guilty at 11:36 AM on December 2, 2013


Pope Guilty: "I feel like if you're a prosecutor and you knowingly prosecute an innocent person, you should be charged as an accessory after the fact."

Baby steps.
posted by tonycpsu at 11:37 AM on December 2, 2013 [3 favorites]


Also, I'll defend my use of the word "corrupt" to describe police officers, prosecutors, and other government officials who violate their sworn oaths to seek justice and to protect the public by intentionally engaging in behavior they know to violate the law, the ethical rules governing their professions, or orders given to them by courts of law. The word "corrupt" doesn't only refer to people who are seeking personal gain at the expense of the public good (although I would argue that wanting to juice one's personal conviction rate is pretty self-interested). It also refers to people or actions that are "dishonest, evil, or immoral" or "characterized by improper conduct." I can think of cases of prosecutorial and judicial misconduct that fall into both of those categories. Abuse of the public trust is corruption, whether it's done for immediate personal gain or out of a misguided sense that the ends justify the means.
posted by decathecting at 11:42 AM on December 2, 2013


reporting directly to the executive branch of the government.

You do realize that law enforcement agencies are all part of the executive branch of the government, yes?

So instead of the FBI investigators reporting to the head of the FBI, they report to the Attorney General.

They do. Not to the AG personally, but the Department of Justice has two bureaus outside the FBI--the Inspector General and the Civil Rights Division--which oversee all shooting reviews. Says so right in the article you linked.
posted by valkyryn at 11:44 AM on December 2, 2013


Pope Guilty: "I feel like if you're a prosecutor and you knowingly prosecute an innocent person, you should be charged as an accessory after the fact."

Prosecutors are lawyers, and it is not and should not be the job of a lawyer to determine guilt or innocence. Indeed, if guilt and innocence were to be determined primarily by lawyers privately - that would be the natural outcome of what you're suggesting - then the whole system would turn to shit. There are guidelines for prosecutors; they are required to make sure all evidence is known to both the prosecution and the defense. Let them be arrested for bending or breaking those guidelines, but let's not start jailing people for what we think we know they knew.
posted by koeselitz at 11:44 AM on December 2, 2013 [3 favorites]


I feel like if you're a prosecutor and you knowingly prosecute an innocent person, you should be charged as an accessory after the fact.

What if you're a defense attorney and you knowingly defend a guilty person? Because that seems like where that leads.
posted by corb at 11:46 AM on December 2, 2013 [4 favorites]


I'll defend my use of the word "corrupt" to describe police officers, prosecutors, and other government officials who violate their sworn oaths to seek justice and to protect the public by intentionally engaging in behavior they know to violate the law, the ethical rules governing their professions, or orders given to them by courts of law.

Most of the people involved don't believe they were doing anything wrong and/or illegal. Whether they were or not is a different issue, but that would eliminate the "intentional" aspect of your condemnation.

That's what makes doing anything about this so hard. Look at the cop in the OP. He thinks he was just doing his job, that everything was above board, and that there's nothing wrong with what he did. He's wrong, but he would not fit into the category you describe here.
posted by valkyryn at 11:46 AM on December 2, 2013 [1 favorite]


valkyryn: " You do realize that law enforcement agencies are all part of the executive branch of the government, yes? "

Of course. My point (which I obviously communicated poorly) is to push the reporting higher up the org chart so that the person doing the prosecuting has fewer ties (budgetary, culturally, socially, etc.) with those accused of the wrongdoing, and has less ability to claim "plausible deniability" and blame it on a subordinate. In the case of the feds, you probably can't have such an agency reporting directly to the President, but you can at least have them reporting directly to the AG instead of to the heads of other bureaus that are overseen by the AG. In the case of state and local, I think having this unit report directly to the mayor or governor would be appropriate.
posted by tonycpsu at 11:54 AM on December 2, 2013


corb: " What if you're a defense attorney and you knowingly defend a guilty person? Because that seems like where that leads."

Our system operates on the assumption that it's better to let criminals go free than to jail the innocent, so there's no contradiction or slippery slope here.
posted by tonycpsu at 11:56 AM on December 2, 2013


valkyryn: "That's what makes doing anything about this so hard. Look at the cop in the OP. He thinks he was just doing his job, that everything was above board, and that there's nothing wrong with what he did. He's wrong, but he would not fit into the category you describe here."

I'm not sure I buy that this is on the level of an existentially difficult question, although I know you have more first-hand experience with it than I do.

What I keep thinking is: this is how police departments have always been; cops have always believed they were doing the right thing. They thought so in the fifties and sixties and into the seventies when they gathered questionable evidence and framed up people they thought were guilty; they thought so when they contaminated crime scenes and did terrible forensic work and, before that, when they didn't rely on forensics at all and just went on "gut instinct" and pursued they guy who seemed most guilty to them at that moment. And yet somehow police work did improve - it got more scientific, more rational, more correct. Why? Because science, coupled with carefully and slowly improved guidelines, made that possible.

I think cops will always generally believe they're doing the right thing, even if they're railroading somebody. As the dirty cop in Touch of Evil says, cops will always naturally believe that they never framed somebody who wasn't guilty. But if they are subject to stricter guidelines, then they will sigh and then grudgingly follow those guidelines. For instance - in the case discussed here, the correct lineup photos were never submitted. Why? Of course cops would rather just be believed, would rather they didn't have to submit anything at all. They only submit evidence because they believe it's expected and regarded as essential. When judges, and the system at large, treats essential things as non-essential, then obviously the cops won't be very careful. So the goal has to be giving these things - lineup photos, lineup procedures in general, the presumption of innocence in lack of evidence, etc - a systemic prominence again.

There have to be ways of beginning to do that directly and in a clean way that doesn't wholly disrupt the system. It shouldn't even necessitate allowing litigation of public officials. There has to be some way to put systemic pressure on judges, prosecutors, and cops to follow the bare minimum of rational procedures, particularly in murder cases. How is that systemic pressure applied now?
posted by koeselitz at 12:04 PM on December 2, 2013 [2 favorites]


tonycpsu: "Our system operates on the assumption that it's better to let criminals go free than to jail the innocent, so there's no contradiction or slippery slope here."

Even if it weren't a terrible idea to encourage prosecutors to take the entire system of justice into their own hands and make themselves the final arbiters of who is innocent and who is guilty even more than they already do - this clearly would not work. How the hell are you expecting to prove that a prosecutor "knew" that someone was innocent when they set out to prosecute them? Even if you could, the assertion that the "knowing" prosecution of the innocent is the problem here is laughable. Every prosecutor, like every cop, believes they are doing God's work and putting away the bad guys by any means necessary. They will cut corners because they think it will help them convict the guilty. What they "knew" does not and should not matter, and should not even be a part of this process, since presumably most prosecutors were not actually present when the crimes they're dealing with were committed and therefore don't actually know any more than anyone else who actually did it. What matters is the truth; and the only way to get to that truth is to expose all the evidence and sort through it in a rational way. If prosecutors hide evidence - and I have no doubt that they do - let them be subject to criminal charges for that crime under the perfectly good laws that already exist for this function, and let them pay the consequences.

In short: to look at cases like the one discussed in the article posted here and conclude that the only issue is that 'the prosecutor knew better, and should be arrested for what they knew,' is to simplify them to an extraordinary degree. We're not talking about a problem with the moral scruples of a prosecutor; the moral scruples of prosecutors aren't something we're supposed to be relying on in the first place. The problem is with a whole system that makes proper procedure and careful scientific work secondary to conviction rate.
posted by koeselitz at 12:17 PM on December 2, 2013 [2 favorites]


The other problem is that punishing prosecutors for prosecuting people they believed to be innocent means you are giving free rein to prosecutors to act on their unconscious biases. Also that no one attractive, sympathetic, or well off will ever get charged of a crime again unless it's truly egregious.
posted by corb at 12:19 PM on December 2, 2013


Sometimes I think the best route to go on these kinds of cases is reforming sentencing guidelines. They are legislatively determined, so presumably changing them would be more direct than changing any executive guidelines; but reforming them seems difficult since they're almost always on a state level in these kinds of cases.
posted by koeselitz at 12:24 PM on December 2, 2013


Most of the people involved don't believe they were doing anything wrong and/or illegal. Whether they were or not is a different issue, but that would eliminate the "intentional" aspect of your condemnation.

That's what makes doing anything about this so hard. Look at the cop in the OP. He thinks he was just doing his job, that everything was above board, and that there's nothing wrong with what he did. He's wrong, but he would not fit into the category you describe here.


OK, but this is something the court system deals with constantly in other sorts of cases. How do we determine whether a right was clear enough that a Bivens action should be allowed to proceed? How do we decide whether someone was acting the the course of his employment for the purposes of agency law or respondeat superior? How do we judge a person's mental state where a crime or tort has a mens rea element? How do we define "reasonable" when asking whether a reasonable person would have behaved in a certain way or would have known a certain fact under the circumstances? When someone claims they didn't know something, or that they believed something to be true that actually wasn't true, or that they didn't intend a particular outcome, how do we decide whether to take their word for it? There aren't absolute, universal answers to these questions, but deciding the answers in particular cases is what courts do all day, every day.

It may be that what I've proposed isn't radical enough to actual result in meaningful disciplinary action against enough public officials to create incentives for the others to behave better. I'm willing to accept that what I've proposed is an inadequate remedy. But certainly it's not any more inadequate than the remedy we have now, which is no remedy. I'm guessing that somewhere in the history of the United States criminal justice system, there is a prosecutor or judge or police officer who is currently immune from suit, but who would not be immune from suit if there were an exception to immunity for intentional or willful conduct. Even if there's only one case we'd be able to prove, I would rather see that one person disbarred or fined or jailed otherwise punished than see no one who commits willful or intentional misconduct punished in any way, ever. And if your only response to a proposal to slightly lower the bar for setting aside prosecutorial immunity is that it would be too hard to actually punish anyone, I would submit that you're letting the perfect be the enemy of the good.

If your complaint is that it's too expensive and resource-draining to separate the guilty or liable prosecutors and judges from those who have done nothing wrong, then I think we should probably fold up shop and not have a legal system at all. Because that's what the legal system is for. And if it's too expensive to bother to do it when people want to sue prosecutors who wrongfully sent them to prison for decades, surely it's too expensive to bother separating the meritorious cases from the frivolous ones when all that's at stake is someone who fell down a flight of stairs or had some money stolen from him or whatever.
posted by decathecting at 12:26 PM on December 2, 2013 [1 favorite]


decathecting: "It may be that what I've proposed isn't radical enough to actual result in meaningful disciplinary action against enough public officials to create incentives for the others to behave better. I'm willing to accept that what I've proposed is an inadequate remedy. But certainly it's not any more inadequate than the remedy we have now, which is no remedy. I'm guessing that somewhere in the history of the United States criminal justice system, there is a prosecutor or judge or police officer who is currently immune from suit, but who would not be immune from suit if there were an exception to immunity for intentional or willful conduct. Even if there's only one case we'd be able to prove, I would rather see that one person disbarred or fined or jailed otherwise punished than see no one who commits willful or intentional misconduct punished in any way, ever."

Hm. This actually seems like a good solution. It seems less useful to make "knowing" prosecution of the innocent a crime itself; but if it were simply an exception to the immunity from prosecution normally granted to prosecutors, then it could be a useful tool for enforcing some kind of regularity in criminal prosecutions. Of course I'd rather the immunity from prosecution were severely limited or eliminated entirely, but an exception is a good start.
posted by koeselitz at 12:37 PM on December 2, 2013


Prosecutors are lawyers, and it is not and should not be the job of a lawyer to determine guilt or innocence. Indeed, if guilt and innocence were to be determined primarily by lawyers privately - that would be the natural outcome of what you're suggesting - then the whole system would turn to shit. There are guidelines for prosecutors; they are required to make sure all evidence is known to both the prosecution and the defense. Let them be arrested for bending or breaking those guidelines, but let's not start jailing people for what we think we know they knew.

The existence of cases in which exculpatory evidence was knowingly concealed makes this a great big pile of responsibility-dodging, criminal-abetting horseshit.
posted by Pope Guilty at 12:40 PM on December 2, 2013 [3 favorites]


Pope Guilty: " The existence of cases in which exculpatory evidence was knowingly concealed makes this a great big pile of responsibility-dodging, criminal-abetting horseshit."

Quoted for truth.
posted by tonycpsu at 12:44 PM on December 2, 2013 [1 favorite]


Pope Guilty: "The existence of cases in which exculpatory evidence was knowingly concealed makes this a great big pile of responsibility-dodging, criminal-abetting horseshit."

Why the hell are you proposing new legislation, then? This is already against the law! Like I said above, people should be prosecuted for breaking the law in these cases - specifically, prosecutors who conceal evidence should be prosecuted for that, since it's already a crime. Why sit around inventing weird new crimes that have nothing whatsoever to do with our actual problems when the thing you're focused on eliminating is already against the law?
posted by koeselitz at 12:47 PM on December 2, 2013 [1 favorite]


And at this point I'll note that you emphatically did not say that prosecutors should be jailed for concealing evidence. You said that they should be charged with the crimes they're prosecuting for knowingly prosecuting the innocent. That's completely different - it has nothing to do with concealing evidence, and in fact on its own it wouldn't change anything.
posted by koeselitz at 12:48 PM on December 2, 2013


corb: " What if you're a defense attorney and you knowingly defend a guilty person? Because that seems like where that leads."

Um, no. Because everyone is entitled to a defense, innocent or guilty.

Sorry if I missed someone else saying it, but I work in appeals and it pisses me off when it's implied or said that defense attorneys are shifty somehow for providing a defense to the guilty. Yeah, a lot of defendants are guilty. So what?
posted by agregoli at 12:54 PM on December 2, 2013 [1 favorite]


Why the hell are you proposing new legislation, then? This is already against the law! Like I said above, people should be prosecuted for breaking the law in these cases - specifically, prosecutors who conceal evidence should be prosecuted for that, since it's already a crime. Why sit around inventing weird new crimes that have nothing whatsoever to do with our actual problems when the thing you're focused on eliminating is already against the law?

Because prosecutors actually can't, in the overwhelming majority of circumstances, be jailed, or prosecuted, or sued civilly for misconduct committed during the preparation or trial of a case. That's what "absolute immunity" means. That's what people in this thread are proposing to change: to allow some punishment in the most egregious cases for prosecutors who break this rule and others like it.
posted by decathecting at 12:54 PM on December 2, 2013 [2 favorites]


if your only response to a proposal to slightly lower the bar for setting aside prosecutorial immunity is that it would be too hard to actually punish anyone, I would submit that you're letting the perfect be the enemy of the good.

You don't get it. You are not talking about allowing suit in a tiny fraction of cases. That's not how immunity waivers work. You are talking about allowing suit in every case, if only to litigate the immunity issue. If you create even a chink in absolute immunity, every single case gets litigated. Saying that immunity is only waived for intentional misconduct does nothing to mitigate the procedural costs and chilling effects I'm talking about, because those are incurred even if 99% of the cases get dismissed. Think about it: the only way we know whether misconduct was deliberate is to litigate it.

You seem to be operating under the assumption that we know beforehand which conduct counts as misconduct and which misconduct counts as deliberate. We don't. Rather, what happens is the plaintiff files a complaint, the defendant asserts immunity, and the court has to decide--independent of the merits of the case--whether immunity applies. That would involve a factual determination, making it very difficult to dispose of without significant litigation costs. It's entirely possible that a court could decide that immunity does not apply and for the plaintiff to lose! All you'd be doing is making a finding of no immunity possible in more circumstances. You wouldn't be doing anything to change the process by which we find out whether immunity applies.

The threat of litigation, even meritless litigation, is so enormous that the mere possibility of success would invite a deluge of lawsuits that witnesses in particular would never be able to defend. Getting a ruling on the immunity issue alone would cost thousands of dollars, maybe even tens of thousands. And awarding attorney fees to a prevailing official/witness is useless because (1) they still have to shell out the money before they get reimbursed, and (2) they're never going to get anything out of the criminal defendant (now civil plaintiff) anyway. Criminal defendants could this force officials and witnesses to rack up ridiculous legal fees just for doing their jobs.

So no. This isn't me making the perfect the enemy of the good. It's me preferring the barely-adequate-at-best status quo to an unmitigated f*cking disaster.
posted by valkyryn at 1:15 PM on December 2, 2013 [3 favorites]


decathecting: "That's what people in this thread are proposing to change: to allow some punishment in the most egregious cases for prosecutors who break this rule and others like it."

But that is not what Pope Guilty was suggesting, as is clear from his first comment in this thread.
posted by koeselitz at 1:28 PM on December 2, 2013


valkyryn: "The threat of litigation, even meritless litigation, is so enormous that the mere possibility of success would invite a deluge of lawsuits that witnesses in particular would never be able to defend. Getting a ruling on the immunity issue alone would cost thousands of dollars, maybe even tens of thousands. And awarding attorney fees to a prevailing official/witness is useless because (1) they still have to shell out the money before they get reimbursed, and (2) they're never going to get anything out of the criminal defendant (now civil plaintiff) anyway. Criminal defendants could this force officials and witnesses to rack up ridiculous legal fees just for doing their jobs."

You still haven't convinced me here, mostly because, as I said above, this actually happens every single day. If I believe that the government did something unconstitutional or unlawful, I can sue the public official who carried out the order, even if they were just following orders. If I believe a government action will result in damage to my property or my liberty, I can litigate that. Litigation against public officials in civil cases is by no means a rare or unheard-of thing. It costs a lot of money, yes, but we deal with it because it's necessary. So why would it necessarily be so disastrous to extend that litigation to criminal cases?
posted by koeselitz at 1:35 PM on December 2, 2013


The threat of litigation, even meritless litigation, is so enormous

Let me elaborate on that particular point. I'm a lawyer. I can knock together a civil complaint together in an afternoon. A day at the most. Less if it's a kind of case I handle on a regular basis. I can file that complaint for less than $150 and have it served on you. Doing that, just that, could easily cost you $1,000 in attorney fees even if nothing else happens. Even paying a lawyer to simply read the complaint and sit down with you to explain your options could cost more than that.

Either way, you've got a lawsuit on your hands. There are only two ways out of this. Settle or fight. Settling means giving my client at least part of what they want. Meaning either money or--in this sort of case--modifying your testimony. Say you don't want to settle. Say you think my client and I are full of it. Okay. You've just signed up to pay your lawyer $10,000. Minimum. Can't afford that? Well then if you go pro se I'm going to crucify you and most likely get the better part of the judgment I'm looking for. So it's either pay me, pay your own lawyer, or both. But you're paying. Oh lordy, are you paying.

And no, the protections for frivolous litigation aren't going to help you much here. Courts impose sanctions for that sort of thing, very, very rarely. They'll just dismiss the case and leave you to eat your own costs. You have to get to the level of Prenda before judges start to think about imposing real sanctions for meritless claims, and even then, you probably have to pay your lawyers first and hope against hope for a recovery. So again, you're paying.

In short: for very, very little work on my part, I can, on behalf of my clients, ruin your life. You're talking about making that sort of power available to criminal defendants to wield against prosecutors, judges, and witnesses. This is a no good, horrible, very bad idea.

And if you think this is a terrible way of doing things, now you know why some people are all het up about frivolous litigation and tort reform.
posted by valkyryn at 1:36 PM on December 2, 2013 [5 favorites]


why would it necessarily be so disastrous to extend that litigation to criminal cases?

Because in the cases you're talking about, there's really only the one case: you're pissed that the government screwed up and you want to get paid for it. There aren't usually any other cases riding on the outcome of that one.

But in the situation we're talking about, there is another case. The criminal case. You think the government screwed up, but the government thinks you killed somebody. Or whatever. Maybe you did, maybe you didn't, what you're doing is basically saying that the outcome of the criminal case--which is independently important and significant--is now subject to the outcome of a civil case. Every one, potentially. The criminal cases can't be concluded until the related civil cases are over, and civil cases take enormously longer than criminal ones. You'd potentially be adding a nine-month to two-year delay in every case where a prosecutor made a close call or a witness was turning state's evidence, because every time one of those things happened, the defendant is going to sue. Even if he doesn't have a prayer of winning, he's just delayed his time in jail by that much more. As soon as the ink has dried on the criminal complaint, defense counsel will be filing a civil complaint against the prosecutor, cops, and witnesses. In addition to the general procedural hassle, this could easily scare off potential witnesses, even honest ones, destroying the prosecution's case entirely.

So you've eliminated the ability of the criminal justice system to prosecute crimes with anything like efficiency to catch the relatively few number of cases in which there might actually be actionable misconduct.
posted by valkyryn at 1:46 PM on December 2, 2013 [1 favorite]


valkyryn: "Even if he doesn't have a prayer of winning, he's just delayed his time in jail by that much more."

IANAL, but doesn't a judge have to decide on standing to sue early on in the process? It seems like that would help alleviate the hypothetical strain on the justice system that you are envisioning.
posted by tonycpsu at 2:12 PM on December 2, 2013


IANAL, but doesn't a judge have to decide on standing to sue early on in the process?

Immunity isn't a standing issue, it's an affirmative defense.
posted by valkyryn at 2:40 PM on December 2, 2013 [2 favorites]


Except that both prosecutors and judges are elected officials in most jurisdictions. Even when they aren't directly elected, they're appointed by officials who are themselves elected. So almost every prosecutor and judge in the country is, either directly or indirectly, accountable

Charles Hynes not only corrupted justice. He corrupted, in my opinion, democracy as such by meting out justice differentially depending on the ethnicity of the accused, for direct personal gain (re-election).

Read it and puke. There's not even "rough justice" when child rapists are excused for political gain, not to even mention putting innocent people in jail with racist perjury a la NYPD.
posted by spitbull at 2:56 PM on December 2, 2013


In short: for very, very little work on my part, I can, on behalf of my clients, ruin your life. You're talking about making that sort of power available to criminal defendants to wield against prosecutors, judges, and witnesses. This is a no good, horrible, very bad idea.

And if you think this is a terrible way of doing things, now you know why some people are all het up about frivolous litigation and tort reform.


Right. I think making prosecutors, judges, and witnesses liable simply turns the legal system in to the medical system, where prosecutors and judges will need to carry $500,000-per-year malpractice insurance like OB/GYNs or neurosurgeons and where you'll get multiple tv ads each day looking for anyone ever tried by [insert list of judges here] to join a class-action lawsuit.
posted by jaguar at 3:26 PM on December 2, 2013 [1 favorite]


And voters really like "rough justice" DAs and hanging judges.
The people who have most to lose from abusive prosecutors and judges aren't exactly encouraged to vote in our system.
posted by edheil at 4:03 PM on December 2, 2013 [1 favorite]


I think making prosecutors, judges, and witnesses liable simply turns the legal system in to the medical system, where prosecutors and judges will need to carry $500,000-per-year malpractice insurance like OB/GYNs or neurosurgeons

They already do, mostly. Lawyers carry professional liability, and I don't know why prosecutors would be exempt.

But again, with existing civil malpractice lawsuits, we don't have to put the underlying issue entirely on hold. Now we're talking about basically preventing criminal prosecutions from happening in the first place, because lawsuits could be filed on the basis of criminal information or witness identification, not just convictions.
posted by valkyryn at 4:13 PM on December 2, 2013


I'm confused.

Wouldn't these hypothetical cases only come forward after a full trial and conviction? After all, how could you claim a prosecutor had obtained a conviction through misconduct or gross negligence if no conviction had been served up yet?

How would that prevent a prosecution from coming forward?
posted by saulgoodman at 4:36 PM on December 2, 2013 [1 favorite]


valkyryn: You're basically saying that complaints would slow the system to a halt. But if that's so, why don't they slow the system to a halt now? I guess you'd say it's because these kinds of things aren't allowed. But decathecting is proposing that the nullification of immunity only occur in cases where it be proved that evidence was concealed. Are there really that many cases where that is proved? And if it doesn't matter whether it's proved or not, because the request itself clogs up the trial system, how is it that the vast number of motions in the courts now don't bring down the system already?
posted by koeselitz at 4:37 PM on December 2, 2013


if that's so, why don't they slow the system to a halt now?

Because prosecutors, judges, and witnesses are afforded absolute immunity. That means that under no circumstances can the case be won. Given that, no attorney will bring that case, because doing so would be a violation of the rules of professional ethics. There has to be at least a colorable merit to the claim, and with absolute immunity, there isn't.

But with qualified immunity, there can be. Even the longest shot, if not objectively unreasonable, can be brought without violating the rules. So claims which would not be brought under any circumstances today would pile up immediately if immunity were only qualified.
posted by valkyryn at 5:47 PM on December 2, 2013


After all, how could you claim a prosecutor had obtained a conviction through misconduct or gross negligence if no conviction had been served up yet?

It's not just about obtaining convictions. Misconduct can occur even in the filing of charges, yes? The investigation could be a frame up. And the courts recognize that even exposing someone to jeopardy in the legal system can serve as grounds for a lawsuit independent of the verdict. So as soon as charges are filed, we've potentially got completed misconduct.

Same goes for judges. Judge didn't immediately throw out the case for lack of evidence? Misconduct! Sue 'em!

And for witnesses. Witness IDs the defendant in a lineup that leads to charges being filed? Malicious false statements! Sue 'em!
posted by valkyryn at 5:50 PM on December 2, 2013


valkyryn: "It's not just about obtaining convictions. Misconduct can occur even in the filing of charges, yes?"

But that's a broad thing. I want to ask about this specifically and strictly in the case of concealing evidence. And it doesn't seem possible to claim evidence was concealed during the simple filing of charges.

I mean: the perspective is that it's against the law to conceal evidence from the defense, but there is literally no way to enforce that law. Can't we find some way to do that?
posted by koeselitz at 7:00 PM on December 2, 2013 [5 favorites]


>>I think making prosecutors, judges, and witnesses liable simply turns the legal system in to the medical system, where prosecutors and judges will need to carry $500,000-per-year malpractice insurance like OB/GYNs or neurosurgeons

>They already do, mostly. Lawyers carry professional liability, and I don't know why prosecutors would be exempt.


But I doubt lawyers are paying $500,000/year for that coverage, was my point. Googling was showing $15,000/yr to be top of the range for trial lawyers right now.
posted by jaguar at 7:12 PM on December 2, 2013


valkyryn, I think you're arguing, at least in part, against a strawman. Unless I missed it, no one in this thread is arguing in favor of any changes to immunity for witnesses.

Here's my original sentence (and I think I was the first one to suggest this, please correct me if you're responding to someone else): I think that withdrawing (or at least, allowing exceptions to) immunity in cases where it can be proved that the misconduct that caused a wrongful conviction was intentional or willful would send a powerful message about the ethical obligations of people who put other people in cages for a living.

What I had in mind was something like this (and bear in mind that I'm a criminal defense attorney with no experience whatsoever in legislation, nor in civil court): when a person files appeals post-conviction, one of the appeals he can file is an appeal based on prosecutorial/judicial/other official misconduct (for example in the form of discovery or Brady violations). The appellate court then rules on that appeal, finding that either there was no misconduct, that there was misconduct but that the conviction need not be reversed because of it (e.g., because the misconduct was harmless error), or that there was misconduct that resulted in a conviction that must now be reversed. My proposal is that if that third thing occurs (and only after an appeals court has made such a finding), one of the avenues that should then be available to a defendant is to file suit directly against those government officials responsible for the misconduct for monetary damages. Such a suit, which could be filed only by a defendant after an appellate court had made a finding of misconduct and overturned his guilty verdict, would then require the defendant to prove that the misconduct was intentional. If the defendant could make such a showing, absolute immunity would no longer protect the government official from all liability for his actions, and the case would proceed accordingly. If the defendant could not make such a showing, the government official would retain whatever immunity others in his position normally enjoy. I would also envision that the official would be represented by an attorney from the relevant government agency unless and until a finding of intentional misconduct was made, at which point they could be required to fund their own counsel.

Again, I have no experience in civil court. But I'd be interested to hear from people who do have that expertise whether a very limited carve out, such as I've outlined above, might be workable, in the sense of providing at least a small opportunity for increased accountability without a huge risk of overburdening the civil court system.

I'm not saying, by the way, that I would necessarily prefer this very limited proposal to a larger, more expansive version, in which defendants really could challenge prosecutors/judges/police and sue them personally for a wide variety of rights violations, regardless of whether the courts would prefer not to be burdened by those cases. (I'm honestly not sure whether I would rather just accept that cost as the burden we have to bear in a free society in order to punish those who have committed real wrongs, just as we accept the criminal court system, expensive as it is, as the burden we have to bear as a free society in that context.) But I'm curious to know whether those who are worried about the cost burden of increased lawsuits would accept a highly limited, post-conviction cause of action that requires a threshold judicial finding of wrongful conviction caused by misconduct in the underlying criminal case.
posted by decathecting at 11:10 PM on December 2, 2013 [1 favorite]


Or, in the alternative, if you're really worried about bored prisoners filing frivolous civil suits, I think I would also accept making it a crime for a government official to knowingly or intentionally withhold evidence or manufacture evidence in an effort to secure a criminal conviction. Then, let DOJ prosecute state and local prosecutors and judges and send them to prison when they pull really egregious stunts that violate people's rights and wrongfully incarcerate them.
posted by decathecting at 11:19 PM on December 2, 2013


I think I would also accept making it a crime for a government official to knowingly or intentionally withhold evidence or manufacture evidence in an effort to secure a criminal conviction.

This can already happen. It's rare, but it does. A Michigan ex-judge has been fighting criminal charges since 2006 for misconduct in a criminal trial.
posted by valkyryn at 12:41 AM on December 3, 2013


Unless I missed it, no one in this thread is arguing in favor of any changes to immunity for witnesses.

That'd be a very weird little wrinkle then. Basically, you'd permit prosecutors to be sued for suborning perjury, but not witnesses for perjuring themselves. I don't know that the courts would bite on that one.
posted by valkyryn at 12:42 AM on December 3, 2013


My proposal is that if that third thing occurs (and only after an appeals court has made such a finding), one of the avenues that should then be available to a defendant is to file suit directly against those government officials responsible for the misconduct for monetary damages.

So you'd basically want to make an appellate court ruling an element of the tort? There's no other tort on the books like that. Just so our cards are on the table, I was a civil litigator before I got sick of billing insurance companies and turned to criminal defense. I still keep my hand in.

You'd basically be saying that someone who is staring down the barrel of a really nasty impending injury wouldn't be able to do anything about it until the injury is complete. I'm not sure that's consistent with due process. Once you start to grant some rights there, forcing people to wait on those suits until after the conviction seems to constitute a significant infringement on the very rights you're granting. I'm not sure that's a viable middle ground. I think the courts might be more comfortable with there simply not being any available relief, then with conditioning relief in such a way as to make it entirely backward-looking and this significantly ineffectual. In short: if you're serious about granting any rights in this situation, I don't think you're going to be able to condition them in the way you want.

Here's another thing: you could easily run into other due process problems. The statute of limitations for most torts of this sort in most jurisdictions is two years. When's the last time you heard of a criminal case going from complaint to appellate ruling in that time? There was a story on the news just yesterday about somebody getting his conviction overturned a decade later. But a lot of the misconduct is going to happen before charges are filed, and most of the rest would happen before trial. So you'd either be forcing criminal defendants to file their civil suits right up against that statute of limitations (which doesn't seem fair to them), or, more likely, expanding the statute of limitations to allow those suits (which has its own problems).

The reason SOLs exist is because springing civil suits on defendants years after the civil plaintiff became aware of the injury isn't fair to the defendants. Evidence dissipates, and permitting/forcing civil plaintiffs to wait years and years before filing suit would enable them to sit on their favored evidence while the defendant, unaware of the pending litigation, does nothing to preserve exculpatory evidence. And even if he were aware that a suit might be pending and the plaintiff isn't acting in bad faith, the more time passes, the harder the case gets to defend. Honestly, if someone were to depose you today about a case you tried in 2008, how well do you think you'd be able to account for your litigation strategy? What if the case were in 2003? Or 1993? Permitting those kinds of lawsuits would be really, really problematic.
posted by valkyryn at 1:06 AM on December 3, 2013 [1 favorite]


In short: for very, very little work on my part, I can, on behalf of my clients, ruin your life. You're talking about making that sort of power available to criminal defendants to wield against prosecutors, judges, and witnesses. This is a no good, horrible, very bad idea.

Pointing out the obvious, but: Knowingly locking an innocent person in a cell for days, weeks, or years can ruin their life too. Aside from unjustly losing their freedom, they will likely (depending on the sentence) lose their job, their house, their family, their emotional wellbeing, and quite possibly their future as a functioning adult when they're released. For doing nothing wrong.

There needs to be a real deterrent against this sort of injustice. No system is perfect, but if the cost of keeping innocent people not locked in cages is that a few judges and prosecutors declare personal bankruptcy and/or have to pick a new career path, I'm okay with that.
posted by NiceKitty at 2:08 AM on December 3, 2013 [3 favorites]


if the cost of keeping innocent people not locked in cages is that a few judges and prosecutors declare personal bankruptcy and/or have to pick a new career path, I'm okay with that.

I might be too, but that's not really what the cost would be. The cost (or at least the risk) would be that every witness and every cop and every prosecutor would be faced with that in every case. Again, barring decathecting's rather novel suggestion (which I don't think practical for the reasons I've discussed), the only way to find out which cases involve misconduct is to litigate them. Even a successful defense could easily drive a cop or witness into bankruptcy. That's a cost I'm not willing to pay. Are you?
posted by valkyryn at 3:54 AM on December 3, 2013 [2 favorites]


It would be kinda nice to see, I gotta admit.
posted by agregoli at 6:37 AM on December 3, 2013


Tangentially Related: The Wrong People Decide Who Goes to Prison
Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors.
The article basically attributes the massive spike in US incarceration rates to the changes in sentencing law and "...prosecutors ... in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long."

(which I don't think practical for the reasons I've discussed)

I'm still not clear what your argument against the qualified limitation on immunity was specifically other than "the court wouldn't go for that."
posted by saulgoodman at 7:54 AM on December 3, 2013 [1 favorite]


valkyryn: "That'd be a very weird little wrinkle then. Basically, you'd permit prosecutors to be sued for suborning perjury, but not witnesses for perjuring themselves. I don't know that the courts would bite on that one."

Why would it be weird to hold lawyers to different standards than witnesses? And why does it matter whether courts will "bite on" something? Who decides what the law is in the United States - the courts, or the government of the people? I begin to worry I won't like the answer to that question.
posted by koeselitz at 9:17 AM on December 3, 2013 [1 favorite]


> The problem with that is that you would then have a very, very hard time finding people to work in those professions.

We get this argument over and over again - we can't disallow conflict of interest in politicians because no one would run - and now we can't hold legal professionals responsible for their actions, no matter how terrible the results, no matter how desperately dishonest they are, because we couldn't get any people for jobs like judge and prosecutor.

That's SUCH bullshit that I have trouble containing myself.

You're aware, right, that today in 2013 there are huge numbers of perfectly good lawyers who are unemployed or underemployed? I personally could name any number of people, called to the bar, with impeccable school and work lawers, people who would JUMP at the chance to be a DA or a judge under those conditions - many of whom actually believe that those conditions should in fact be imposed. Heck, I can name at least one Mefite...

The idea that we can't hold judges and prosecutors accountable because we couldn't find anyone to fill these well-paid, highly-respected job, in the middle of a huge period of universal underemployment...!
posted by lupus_yonderboy at 1:18 PM on December 3, 2013 [3 favorites]


> Basically, you'd permit prosecutors to be sued for suborning perjury, but not witnesses for perjuring themselves. I don't know that the courts would bite on that one.

I'm sorry - why is this any sort of problem at all?

There is a clear logic to giving witnesses immunity - because it allows you to get testimony that you otherwise couldn't - because it prevents the witness from having to make the hard choice of "Testify and go to jail yourself, or don't testify and let a bad person go free."

There is no logic to giving prosecutors immunity from criminal deeds that they perform, whether in court or out. If they don't want to go to jail, they can simply avoid committing crimes.

If the courts don't look favorably at conditions that would encourage prosecutors not to commit crimes, then we need new, honest judges who will.
posted by lupus_yonderboy at 1:24 PM on December 3, 2013 [2 favorites]


The idea that we can't hold judges and prosecutors accountable because we couldn't find anyone to fill these well-paid, highly-respected job, in the middle of a huge period of universal underemployment...!

People who think they can get away with bending the law are going to do so regardless, while conscientious people are going to think twice about participating in a system where they're likely to be sued often, regardless of whether they'll win those suits. And if the system looks anything like that in healthcare, there will be a huge incentive for defendants to sue because most prosecutors and judges and their malpractice companies will decide that settling is easier than fighting it out. I don't think this suggestion actually incentivizes the right behavior to get the result you want.

What do typical bar sanctions look like? Wouldn't it make more sense to hold investigations at that level, where there's no financial motive clouding the picture?
posted by jaguar at 2:38 PM on December 3, 2013


Who decides what the law is in the United States - the courts, or the government of the people?

The courts are the government of the people. Part of it anyway, and just as much a part as the executive and legislature.
posted by valkyryn at 4:32 PM on December 3, 2013 [2 favorites]


« Older That's amazing. I've got the same combination on...   |   More pictures of cats. Big cats. Newer »


This thread has been archived and is closed to new comments