Prosecutors shouldn't have immunity from their unethical – or unlawful – acts | Hacker News Reader

Prosecutors shouldn't have immunity from their unethical – or unlawful – acts

theguardian.com

73 pointswglb23 comments

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.

> "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?

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.

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.

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.

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.

> 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.)

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?

Why would the juror names need to be revealed?

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.

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

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.

And another link to the same content: http://www.northwestern.edu/newscenter/stories/2015/02/opini...

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.

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.

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

That pushes the problem onto campaign finance and bribery.

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.

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.

How does that differ from now?

Not a strong enough prohibition. They need to be exposed to criminal liability for their crimes, same as a citizen. When they wield immense state power, they should be extremely constrained in its use. Violations of law while wielding the state's power should be taken much more seriously than they are.

Completely agreed. But that's a whole other dimension of the problem. And it doesn't address liability and who pays.

A lot of what prosecutors, police, judges, and other parts of the criminal justice system do, especially in cases of wrongful prosecutions and convictions causes significant liabilities for municipalities and other levels of government. The taxpayer ends up paying, and the individual who incurred the liability gets off scot free.

With bonding, the participants in the CJ system pay up front to be bonded, which encourages them to keep their bonding costs down. And that would encourage them to throw their dirty colleagues under the bus for criminal liability.

I believe it is necessary to maintain the threat of a huge judgement against a local government for the crimes of its hired employees. There is no other effective form of accountability.

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