

Prosecutors shouldn't have immunity from their unethical – or unlawful – acts - wglb
http://www.theguardian.com/commentisfree/2015/feb/05/prosecutors-immunity-unethical-unlawful-acts#The%20Guardian

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Slartibreakfast
The whole notion of absolute immunity for government agents, whether it's the
mailman or a prosecutor is completely nuts - it seems ridiculous to me that
our legal system includes government agents who are allowed to operate outside
of the constraints of the same laws that govern the rest of us.

I don't have a problem with a cop or prosecutor being immune to a lawsuit as
long as he was acting within the bounds of the law, but I do have a problem
with that immunity being considered an inalienable right as opposed to a
privilege - I would prefer to see immunity granted by a grand jury in the same
way that indictments are. I know you'd have to put some work in to figure out
how to do it, but there has to be a solution of some kind - blanket immunity
for government agents is not something that a free society should tolerate.

~~~
john_b
> _" being immune to a lawsuit as long as he was acting within the bounds of
> the law"_

There is no need for immunity when one acts within the bounds of the law. All
that protects against is the hassle and cost of frivolous lawsuits. Absolute
immunity prevents having to have another lawsuit to determine if the conduct
in the first one was appropriate, and so on.

But you are right that absolute immunity of any kind is nuts. It's the mark of
a tyrannical regime, and claims of self-policing do not in any way diminish
this.

However, the real problem is that gag orders can be enforced after the trial
is over. Why would any form of democracy want to lock up crucial information
about how its laws are being interpreted from the public? What is the point of
even having laws if the public is not made aware of how they are being
interpreted in court?

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Shivetya
I am not a fan of opening up grand jury testimony to the public, because that
will likely end up revealing juror names in the end. I do think there needs to
be a panel of judges who can review the proceedings in particularly sensitive
cases and that panel should be well outside of the same jurisdiction.

Another reason it is hard to change the system is that many of these
prosecutors end up in political positions of power and do their best to stifle
any change that might reveal similar actions they took.

~~~
jMyles
What is wrong with revealing juror names? I don't want juries to be anonymous.
I want them to be subject to public scrutiny. They occasionally make huge,
society-shifting decisions.

~~~
a-priori
It exposes jurors to the risk of harassment, intimidation and violence, both
during and after the case, from people who don't like their verdict. And there
will always be one side who does not like their verdict.

It puts them in the position where they have to consider their personal safety
when they make a verdict, rather than just the evidence presented. A juror
shouldn't be thinking "which verdict is less likely to get me killed?" when
they're making a decision.

~~~
jMyles
Violence is rightly against the law; we're all OK with that I think.

However, I do want a juror to think, "which verdict is likely to subject me to
social ostracization?" I don't see anything wrong with that. Otherwise, the
powerful can always force a mistrial with no consequences.

~~~
dragonwriter
> However, I do want a juror to think, "which verdict is likely to subject me
> to social ostracization?" I don't see anything wrong with that.

The fact that it tends to increase the incentive for juries to act like lynch
mobs is one major potential problem with that.

(Of course, the actual issue in the source article is about grand juries, not
trial juries, so "verdict" isn't properly within the domain of concern -- but
the same general principal is at place. Do we want juries acting based on the
facts properly before them, or do we want them acting as proxy for public
trial-by-media? Because the latter is what wanting a juror to think "which
verdict is likely to subject me to social ostracization" is asking for.)

~~~
jMyles
I agree that the desired outcome is for juries to make decisions based on fact
and good purpose, but I don't think anonymity helps to achieve this outcome.

I think that a neighbor openly questioning the decision or a business deciding
to cut off ties with a morally reprehensible actor are more likely to promote
good decision making.

If anonymity is desirable, why have public trials at all?

Anybody can go to a trial and see the jurors' faces, so what difference does
it make?

If they were to be truly anonymous (ie, not visible), then how do we even know
they're real people?

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agwa
I'm all for getting rid of absolute immunity, but it's a very bad idea to
throw out grand jury secrecy just because of what happened in the Michael
Brown and Eric Garner cases. In every other grand jury proceeding, the
prosecutor does not sabotage his own presentment, and when the grand jury
doesn't indict it's because the prosecutor's evidence is crap, and so the
secrecy prevents an innocent person from being smeared. Keep in mind that
grand juries are entirely one-sided - the defendant does not have a chance to
refute anything the prosecutor says. Get rid of their secrecy and you've just
given prosecutors one more way to abuse grand juries.

~~~
SnacksOnAPlane
But grand juries almost always indict if the prosecutor wants them to. Look up
the statistics.

~~~
agwa
I'm well aware, but that doesn't change my point. It's still more common for
non-cops to not be indicted than it is for prosecutors to sabotage their own
presentment so that cops aren't indicted. The non-cops have more to lose, so
let's not do something that will harm them just because there were recently
two high-profile non-indictments of cops.

------
wglb
And another link to the same content:
[http://www.northwestern.edu/newscenter/stories/2015/02/opini...](http://www.northwestern.edu/newscenter/stories/2015/02/opinion-
guardian-van-brunt-prosecutors.html)

------
spiritplumber
The fact that they do is a point against having a system of laws in the first
place. Seriously, it delegitimizes the concept of law altogether. The law is
equal for all, or isn't law; this physics teaches us.

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s_q_b
Sovereign immunity is literally derived from the divine right of the King to
be immune from prosecution and civil suit. It's an anachronism in the legal
field, and one that most people don't realize exists, but is responsible for a
lot of ills in our criminal justice system.

There are two types of sovereign immunity granted to law enforcement and
prosecutors today. The first is investigative or "qualified immunity," which
is the weaker of the two. This is the type of immunity detectives and police
officers have in investigating crimes. Prosecutors can occasionally find
themselves subject to the same level of immunity if they direct investigations
e.g through specific instructions to county detectives or outright
interviewing of witnesses not produced by the police.

The doctrine states that you cannot sue a person engaged in investigatory
activities on behalf of the state _unless_ you can show first that he or she
violated a _clearly established_ Constitutional right. So even if a police
officer violates a Constitutional right, it must be _clearly established._

Some states and circuit courts disagree on what "clearly established" means on
a per-right basis, but basically if a police officer busts down your door
without a warrant absent exigent circumstances, they've lost their immunity,
and you can sue him or her for deprivation of civil rights under 42 U.S.C. §
1983.

Short of egregious actions, it's difficult to pierce this shield. Many states
even have a "good faith" exception to this rule, where if the police officer
was unaware that the right they were violating was clearly established, then
qualified immunity applies. Which is a perfect example of the law gone
haywire. If ignorance of the law isn't a defense for citizens, why should law
enforcement officers be able to use it to claim immunity?

The second, and much more powerful, form of sovereign immunity is "judicial
immunity." It applies not only to judges, who arguably actually should be
immune from threats of prosecution, but also to prosecutors during preparation
for grand jury and trial. The truly problematic part is that judicial immunity
is _absolute_. It cannot be pierced for any reason, no matter how egregiously
a prosecutor violates your Constitutional rights: hiding exculpatory evidence,
deliberately keeping you in prison for long periods to force a plea, etc.

Of course there is recourse to the ethics committee of a state. However, in
all but the most public and embarrassing cases, state ethics boards are
toothless against prosecutors. Usually, a complaint has to be a approved by a
regional reviewer, who is tied into the county legal system and has a strong
incentive not to aggravate the prosecutor's office.

The only saving grace here is the "municipal person" theory. Essentially, if a
state governmental agency, such as a county, has a policy or practice that
actively encourages or directs its employees, whether investigators or
prosecutors, to violate Constitutional rights, then one can sue the
municipality which is not protected by investigative or judicial immunity
under Section 1983.

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Zigurd
Limiting liability could be accomplished by bonding. Bad prosecutors would
price themselves out of the market.

~~~
golemotron
That pushes the problem onto campaign finance and bribery.

~~~
Zigurd
How does requiring a bond do that? It's form of insurance. But, instead of
pricing depending on how a government performs, the price signal is shifted to
the individual.

~~~
golemotron
If you can get people to give you money, you don't have to care how expensive
your bond is. It invites quid pro quo.

~~~
Zigurd
How does that differ from now?

