Blowin' in the Wind

They got away with it again. Sort of.

I'm talking prosecutors who cheat. You know, the ones who intentionally fabricate evidence in order to convict a couple of innocent guys of murder, a couple of guys who spend 26 years (that's 26 years! 26!) in prison before they manage to prove that they're innocent and were railroaded by the prosecutor. That's what happened to Terry Harrington and Curtis McGhee in Pottwattamie County, Iowa back in 1978.

So they sued. The problem is that the Supreme Court held, back in 1976, in Imbler v. Pachtman that prosecutors are absolutely immune from money damages for anything they do in their roles as prosecutors. What's that you say? That's a stupid rule? Yup.

But, you see, the Court figured that you didn't want prosecutors to be busy restraining their proper conduct by worrying about whether someone would think it misconduct. Huh? You still think it's stupid? Join the club. But it's the law.

Anyhow, they sued. The case, Pottawattamie County v. McGhee, made it to the Supreme Court where it was argued in November. Mike Cernovich at Crime & Federalism, rightly called it "the most interesting Section 1983 case this Term." (I've talked about the case before.)

Roughly, the prosecutors argued that if prosecutors become nervous about the consequences of making up evidence, there's no stopping point and they'll be afraid to prosecute anyone. We don't want to make them to flinch when making up evidence, because we want them to be more than willing to present evidence that isn't made up without flinching. Like I say, stupid.

Justice Sotomayor saw through it. During oral argument, she asked a lawyer from the Department of Justice who'd made that argument,

Do you really want to send a message ... that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?

You'd think this would be an easy call. Don't even have to adjust the general rule. All you have to say is that when prosecutors fabricate evidence, they aren't acting as prosecutors, they're acting as criminals: suborning perjury. But if you read the transcript of the argument, you'll see that nobody actually said that. And you'll see that it's far from clear how the Court would rule.

I mean, everyone agreed prosecutors shouldn't fabricate evidence. But whether they should be held liable for doing it? Wow, that seemed like a toughie.

If there were some other remedy for the misconduct, some other punishment to deter that sort of thing, maybe it wouldn't matter so much. But as Harrington and McGhee's brief makes clear, there is no other remedy because there are no consequences for prosecutors who cheat:

Petitioners’ amici describe a host of other remedies to punish prosecutors for misconduct. See, e.g., Nat’l Ass’n of AUSAs Br. 7-16; see also Imbler, 424 U.S. at 428-29. The most notable thing about amici’s lengthy catalog of supposed remedies, however, is that petitioners have not faced any of them. The highest court in the State of Iowa found that petitioners had violated the Constitution by suppressing exculpatory evidence. Harrington v. State, 659 N.W.2d 509, 521-25 (Iowa 2003). What consequences befell the prosecutors for that unconstitutional action? Petitioners did not face so much as a state-bar investigation, and they remain members in good standing of the Iowa bar in private practice in Council Bluffs. “Remedies” that go unused when serious, documented prosecutorial misconduct comes to light are little better, and perhaps worse, than no remedies at all. Unfortunately, the lack of meaningful response is typical. See Wayne D. Garris, Jr., Model Rule of Professional Conduct 3.8: The ABA Takes a Stand Against Wrongful Convictions, 22 GEO. J. LEGAL ETHICS 829, 842-43 (2009).[] The reality is that bad prosecutors are deterred by, and punished by, civil-rights suits like this one, or not at all.[]

(Footnotes omitted.)

So there it all stood. Until everyone blinked.

The case settled. Harrington & McGhee get to split twelve million of Pottawattamie County's dollars and the prosecutors of America get to keep making up evidence. The press release crows about a victory. So the Supremes won't rule.

You can never blame parties to a lawsuit for settling rather than allowing the courts to make up new rules. And frankly, as both Norm Pattis and Sarah recognize, it may be that we're all better off not knowing that the Supremes don't really think fabricating evidence isn't part of acting like a prosecutor. Then again, we might have won. Maybe there really is a limit.

But maybe not. Maybe it really is what the particular cheating prosecutors and the Department of Justice and the various associations of prosecuting attorneys and numerous state and local governments said while trying not to admit they were saying it:

Fabricating evidence and conspiring to convict innocent people of murder is part of what prosecutors do. It's part of the job description.

I've written a lot about Maricopa County here. I've carried on high about the county sheriff and the county prosecutor who start investigations and bring criminal charges against anyone who says a bad word about them. I've said it's a constitutional crisis there, that the rule of law is gravely at risk.

Maricopa is a special place because it's ground zero for the problem. But it's also no more than an example. Today it's Sheriff Joe and Andy Thomas. In 1978, it was the prosecutor in Pottawattamie County. Tomorrow?

As Dylan wondered back in the day:

How many times can a man turn his head
And pretend that he just doesn't see?

The answer's still in the wind.

BECAUSE WE'RE THE DECIDERS: THE IMMUNITY EDITION

Back in 1909, treating it as a failure of, human decency and good sense, by which he meant as much as anything else a failure of capitalism, George Bernard Shaw explained it this way.

It is not the fault of our doctors that the medical service of the community, as at present provided for, is a murderous absurdity. That any sane nation, having observed that you could provide for the supply of bread by giving bakers a pecuniary interest in baking for you, should go on to give a surgeon a pecuniary interest in cutting off your leg, is enough to make one despair of political humanity. But that is precisely what we have done. And the more appalling the mutilation, the more the mutilator is paid. He who corrects the ingrowing toe-nail receives a few shillings: he who cuts your inside out receives hundreds of guineas, except when he does it to a poor person for practice.

Scandalized voices murmur that these operations are unnecessary. They may be. It may also be necessary to hang a man or pull down a house. But we take good care not to make the hangman and the housebreaker the judges of that. If we did, no man's neck would be safe and no man's house stable. But we do make the doctor the judge, and fine him anything from sixpence to several hundred guineas if he decides in our favor. I cannot knock my shins severely without forcing on some surgeon the difficult question, "Could I not make a better use of a pocketful of guineas than this man is making of his leg? Could he not write as well--or even better--on one leg than on two? And the guineas would make all the difference in the world to me just now. My wife--my pretty ones-- the leg may mortify--it is always safer to operate--he will be well in a fortnight--artificial legs are now so well made that they are really better than natural ones--evolution is towards motors and leglessness, etc., etc., etc."

Now there is no calculation that an engineer can make as to the behavior of a girder under a strain, or an astronomer as to the recurrence of a comet, more certain than the calculation that under such circumstances we shall be dismembered unnecessarily in all directions by surgeons who believe the operations to be necessary solely because they want to perform them. The process metaphorically called bleeding the rich man is performed not only metaphorically but literally every day by surgeons who are quite as honest as most of us. After all, what harm is there in it? The surgeon need not take off the rich man's (or woman's) leg or arm: he can remove the appendix or the uvula, and leave the patient none the worse after a fortnight or so in bed, whilst the nurse, the general practitioner, the apothecary, and the surgeon will be the better.

The Doctor's Dilemma, Author's Preface.

This is not a post about health care, public options, or death panels. Instead, it's about corruption and legal liability. It's about prosecutors and judges and accountability. And it's about the price of fiction.

If you're the type to be reading this blog (one of these days I may decide whether I'm going to go consistently with "blog" or "blawg," "blogging" or "blawging," but not today), you probably already know the stories.

Pottawattamie County, Iowa

In 1978, prosecutors in Pottawattamie County fabricated evidence to frame two innocent men, Curtis McGhee and Terry Harrington, for murder. McGhee and Harrington spent 25 years in prison for the killing before they proved what had been done to them. When they got out, they sued the prosecutors.

Their claim, at its heart, was simple: Government agents cannot lawfully frame innocent people for crimes and should be held accountable for civil damages (cash) when they do - both because it's right for them to suffer the damages and because McGhee and Harrington deserve recompense. The answer was equally simple. In 1976, in a case called Imbler v. Patchman, the Supreme Court said that Prosecutors have absolute immunity from civil damages for anything they do as prosecutors. The corrupt prosecutors of Pottawattamie County say that framing people for crimes and then prosecuting them is a prosecutorial act, so they're immune.

The argument, you see, is that prosecutors must be immune from suit or they'll be too cautious. "Should I frame this guy or not? Damn, I can't take the chance, I'd better not." OK, they don't argue it quite that way, but that's the general idea. Pottawattamie County v. McGhee is now before the Supreme Court which will decide sometime this term.

Luzerne County, Pennsylvania

The corruption in Luzerne County was more prosaic. It was just about cash. The juvenile court judges took in millions of dollars in bribes to find kids delinquent and send them off to a privately run, for profit, kiddie prison. The judges face criminal charges. Almost all the kids, thousands of them, have had the delinquency determinations vacated, their records cleared, and the papers sealed. (They should have fixed it for the last hundred or so, too, but didn't.) You can read about that here and by following the links to Sarah's powerful posts on it here, here, and here.

Anyway, now that it's all revealed, the kids sued, as well they should have. The judges and the officials who enabled them (which group, by the way, includes the kids' defense lawyers when they had them and the local prosecutors all of whom at least looked the other way while this was going on and, none of whom have been chastized except in the blawgosphere, and none of whom, it seems, have been sued) ought to have to pay civil damages to the kids for what was done to them. Again, it's right that they should suffer the damages and the kids deserve more than just clean slates - they deserve recompense.

But, you see, judges are like prosecutors. They have absolute immunity from damages for what they do as judges. The Supreme Court decided that in Bradley v. Fisher back in 1872. The decision was not without dissent. Justice Davis (joined by Justice Clifford) wanted a limitation.

I dissent from the rule laid down by the majority of the court, that a judge is exempt from liability in a case like the present, where it is alleged not only that his proceeding was in excess of jurisdiction, but that he acted maliciously and corruptly. If he did so, he is, in my opinion, subject to suit the same as a private person would be under like circumstances.

That makes perfect sense. But it's not the law. And so, on Friday, a federal judge granted (albeit only in part) motions to dismiss the case the kids brought. In explanation, Judge Caputo quoted (opinion here, as Order 1) Mirales v. Waco (1991) which was quoting Bradley v. Fisher:

[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions without apprehension of personal consequences to himself.

Joel Jacobson cuts through the gobbledygook.

Why should judges be immune from civil suit for their dishonest derelictions of duty? You guessed it: so judges won't be discouraged from fulfilling their duties honestly.

Does it really shock any but the most naive believer in second grade civics that the courts protect government officials from some of the consequences of their wrongdoing? Is it the least bit surprising that judges and justices* are inclined to protect judges and justices? Are we at all surprised that prosecutors are protected from whatever they do because, well, because they are the formal part of the power structure that goes after bad guys and if you say they can't get away with fabricating evidence, then you've started down the slippery slope of suggesting that they can't get away with hiding evidence or pursuing charges against people they think probably aren't guilty or just turning a blind eye to perjury or lying to jurors.

It's not that Judge Caputo was dishonest. As a matter of law, he's absolutely right. The corrupt judges of Luzerne County do have absolute immunity from damages for imposing punishment solely because they get bribes and kickbacks for doing so. And irritating as it is, the argument of the Pottawattamie County prosecutors is far from frivolous as a matter of law.

But the theory under which we operate is that there's some relation between the law and reality. It was Olivsr Wendell Holmes, Jr., in The Common Law who famously said

The life of the law has not been logic: it has been experience.

The reality, though, is that the life of the law has been power. Experience is, rather, the fiction on which power often (not always, maybe not even most of the time, but often) is based. There is, for instance, this arrant nonsense from Justice Scalia explaining why exclusionary rules are no longer relevant to deterring police violations of the Fourth Amendment.

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to 599 "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e. g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBride, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U. S. 378, 388 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

It's the same sort of claim that's been made about why prosecutors don't cheat anymore (if they ever did). There's too much integrity and too much penalty for misconduct. The odd prosecutor who misbehaves will be slapped down hard. But, of course, as Mike at Crime & Federalism discussed in detail in a series of posts on Pottawattamie County (and elsewhere on his blog, too), the fiction is just that.

As for judges, just read the words of Chief Justice Moyer of the Ohio Supreme Court. The case was State v. Fears. The Chief Justice dissented in part and would have reversed the death sentence because of the prosecutorial misconduct. We condemn it all the time, he said, but then we let it go.

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

But we have these fictions. And we pretend they're true. Because it suits those in power this week or that to think so. And to make the rest of us think so. It's not corruption, exactly. It's not even dishonesty strictly speaking. I suspect Scalia really does believe in the new police professionalism. Certainly, the cops treat him with respect. The evidence that it's all nonsense simply doesn't penetrate to those in the drivers seat.

You know, President Bush was right when he explained who makes the decisions.

It's the deciders who decide. And they protect their own. And we (most of us, anyhow) ain't they.

I said, this isn't a post about health care, public options, or death panels. It's about power and corruption and honesty and integrity. Oh, wait, maybe it is about health care, public options, and death panels.

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*More than one wag has looked at judicial titles and observed that there is no justice in the lower courts and there are no judges on the Supreme Court.