Academic journal article The Quarterly Journal of Austrian Economics

Protected Lying: How the Legal Doctrine of "Absolute Immunity" Has Created a "Lemons Problem" in American Criminal Courts

Academic journal article The Quarterly Journal of Austrian Economics

Protected Lying: How the Legal Doctrine of "Absolute Immunity" Has Created a "Lemons Problem" in American Criminal Courts

Article excerpt


On November 4, 2009, the U.S. Supreme Court heard arguments in the Pottawattamie County v. McGhee case in which the High Court was to decide whether or not to overturn or modify its 1976 Imbler v. Pachtman decision in which it had ruled that prosecutors in criminal cases, both state and federal, are protected by absolute immunity from lawsuits for actions they may take relative to their prosecutorial duties. The prosecution in the Pottawattamie case allegedly fabricated evidence to convict two black teenagers of murder (Rosenzweig and Shatz, 2009), only to see the verdicts overturned after the men had served 25 years in prison.

Lynch and Shapiro (2009) write about the lawsuit that the two wrongfully-convicted men brought against Pottawattamie (Iowa) County and the prosecutors:

After the convictions were overturned for prosecutorial misconduct,
McGhee and Harrington sued the county and prosecutors. The defendants
in that civil suit invoked the absolute immunity generally afforded
prosecutors to try to escape liability. After the Eighth Circuit ruled
against them, the Supreme Court agreed to review the case. (p. 1)

According to Richey (2009), prosecutors made an especially egregious argument in their defense claiming there was "no freestanding constitutional right not to be framed.'" (Emphasis ours) The facts of the case--that prosecutors framed innocent people in order to win a conviction--were morally repugnant to most observers. Nonetheless, then-U.S. Solicitor General Elena Kagan (before she joined SCOTUS herself) wrote in a friend-of-the-court brief in favor of the prosecutors: "A prosecutor, however, may receive absolute immunity from suit for acts violating the Constitution in order to advance important societal values. This Court's cases recognize a common law tradition of immunity that ensures that prosecutors are free to carry out their work 'with courage and independence.'" (1) (Emphasis ours)

The Supreme Court never ruled on the case, as the two men settled with Pottawattamie County before the court could act. However, had SCOTUS followed its past rulings, the prosecutors would have been protected and the defendants left with no recourse. Lithwick (2009) notes that during the proceedings, Justice Sonia Sotomayor also pointed out that neither of the two prosecutors faced any disciplinary procedures, which indicates that even the entities that allegedly serve as watchdogs against prosecutorial misconduct officially had no problems with their actions.

Pottawattamie in a broader context is hardly unusual, the claim that defendants have no "right not to be framed" notwithstanding. Recently, however, prosecutorial misconduct has come under increased scrutiny. When he served on the U.S. Ninth Circuit Court of Appeals, former Justice Alex Kozinski declared in a dissent (USA v. Olsen, 2013) that prosecutorial immunity provides incentives for prosecutors to violate the Supreme Court's Brady ruling (1963). Brady requires prosecutors to turn over exculpatory evidence to criminal defendants in a timely manner. Kozinski writes:

A robust and rigorously enforced Brady rule is imperative because all
the incentives prosecutors confront encourage them not to discover or
disclose exculpatory evidence. Due to the nature of a Brady violation,
it's highly unlikely wrongdoing will ever come to light in the first
place. This creates a serious moral hazard for those prosecutors who
are more interested in winning a conviction than serving justice. In
the rare event that the suppressed evidence does surface, the
consequences usually leave the prosecution no worse than had it
complied with Brady from the outset. (p. 11)

As Lithwick (2009), Kozinski, and others have pointed out, prosecutors rarely are punished for misconduct, be it withholding Brady material or fabricating evidence. There are theoretical avenues of punishment. They include criminal prosecution of wayward prosecutors, firing offenders, or disciplining the offending prosecutor through federal or state bars. …

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