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Prosecutorial Immunity: A Debate; Bill Anderson v. "One Spook" at DIW
Topic Started: Feb 9 2009, 12:02 AM (743 Views)
sceptical

There has been a good debate about prosecutorial immunity in the comments section of DIW featuring Prof. Bill Anderson (anti) and "One Spook" (pro).
Here are a few parts:

One Spook said...

This might cause me be viewed as somewhat of a heretic on this DIW comment forum, but I respectfully and vehemently disagree with Bill Anderson’s call for “ending the practice of civil suit absolute immunity for prosecutorial behavior.” While all of us agree that a great injustice was done in this case, focusing only on this case and a few other dramatic instances of prosecutorial misconduct can also cause us to lose sight of a very real truth of this case; Nifong’s behavior was an anomaly and not the rule in criminal prosecution. And during this case, there were other wrongs committed that bolstered and abetted Nifong’s illegal behavior that had nothing to do with prosecutorial misconduct.

Calling for an end to legal immunity for prosecutors as a solution to correct the problems that occurred in this case is at once a narrow and extreme solution --- and, absolute overkill. It strikes me as advocating burning down a house when a few cockroaches are found in the kitchen.

Without this immunity, an almost total absence and denial of authority would occur in our legal system; virtually every criminal prosecution would result in civil lawsuits. Think about it; someone found guilty would definitely sue since that would be an obvious recourse; and someone found innocent would likely sue for wrongful prosecution, reasoning that their having been found innocent would prove that they were wronged. Such a system would result in absolute chaos and in effect, anarchy.

It would not only create an immense “distraction” for prosecutors, it would render our legal system completely impotent. Remember, a prosecutor represents “The People” and it is justice for the benefit and protection of the people that a prosecutor is empowered to bring charges against individuals who violate laws.

Many commenting here have supported a “dispassionate examination of the facts” as a check against a rush to judgment on any matter. To me, calling for an elimination of immunity for prosecutors is a clear rush to judgment. I believe that a dispassionate, thorough examination of criminal prosecution would prove the reality that: (1) By far and away, most criminals prosecuted are likely guilty; (2) A large number of persons charged with crimes are never prosecuted for those crimes (recall that during Nifong’s tenure it was found that he reviewed 12 rape cases and only prosecuted 4 of those), and I believe that if “the people” were made fully aware of how few of those arrested are prosecuted, they would be appalled. Such numbers are rarely, if ever, reported and even more seldom, adequately explained; (3) If a prosecutor brings a case to trial, it is most often, a very strong case with a significant amount of inculpatory evidence; and (4) Only very rarely do egregious examples of prosecutorial misconduct occur.

Occasionally, “we the people” hear of an individual who avoids prosecution due to a “legal technicality.” What are those? They are a plethora of rules, laws, and procedures that govern how a prosecutor can conduct the people’s case against an accused. They are put in place to counter the very awesome power that the state, in the form of criminal prosecution, has over people. Those “technicalities” are the very absolute and specific checks on power that is derived, from among other things, the practice of granting immunity to a prosecutor in the conduct of his official duties.

It is not true to state or believe than an accused is without protections or remedies in the course of criminal prosecution. For those who are wrongfully charged or convicted, other remedies exist, some of which have already been discussed here and fall far short of calling for an end to immunity for prosecutors.

It has been reported that North Carolina’s procedures regarding a prosecutor’s handling of exculpatory information are considered among the more liberal of those rules in the country. Statements made by a prosecutor are also controlled. Indeed, it was those two areas that caused Nifong’s demise, although it was deeply troubling that the decision to bring charges against him passed by only a single vote of a NC Bar committee.

Other points have been raised as checks against prosecutorial power and misconduct, among those: (1) Reform of grand jury proceedings requiring a written record --- there is no immunity for law enforcement against false testimony; (2) In some states, a person charged with a felony can demand a Preliminary Hearing --- such a step would have forced Nifong to have shown his cards very early on and would have exposed the weakness of his case. (3) Some have suggested that presumptions in the law and in society regarding rape cases need to be put in better balance, in particular, eliminating false and ridiculous assumptions such as “woman never lie about rape,” and “rape is the least reported crime;” (4) Ensure that all criminal defendants are provided competent counsel; (5) Conduct more frequent prosecution of and establish greater criminal penalties for, false accusers; and (6) Any criminal conviction can be appealed.

And, I would add to those points, a thought of my own. Perhaps it would be a good idea to pass laws that prohibit a District Attorney who is planning to run for office from prosecuting a case or making ANY public comment on any pending case within 12 months of his election.

I could write more about potential remedies for the many wrongs committed that abetted Nifong’s illegal behavior and had nothing to do with prosecutorial misconduct, but I fear this is already too long.

I simply do not believe that ending the practice of civil suit absolute immunity for prosecutorial behavior is even a remotely reasonable approach to deal with the wrongs that were committed in this case.

One Spook

**************

bill anderson said...

I understand One Spook's point about immunity and distractions, but everyone else has to live with those same "distractions." For example, I head the university's promotion and tenure subcommittee, and that means potential lawsuits from unhappy professors that might sue if we give a thumbs down on their applications.

Yet, the process goes on despite the potential distractions. As I have said before, if the legal system is good enough for everyone else, it should be good enough for lawyers and officers of the court.

I'm an economist, and one of the things we do as economists is to look at the incentive structure that exists in different organizations and institutions. Right now, prosecutors are rewarded on getting convictions, period. When one does not have to worry about a high probability of being punished for lying in court or hiding evidence, but the reward for convicting that person is high, then there is a huge conflict.

Furthermore, judges are loathe to overturn jury verdicts, which means all a prosecutor has to do is to get a conviction, and he or she is in the money. There is no way around this sad fact.

Take the recent case of Timothy Cole, wrongfully convicted of rape in Texas in 1986 and who died in prison in 1999. At his trial, his defense attorney pointed out who had committed the rape, but the prosecutor and judge were not interested. The evidence was THERE ALL ALONG, yet the prosecution ignored it in the rush to convict someone who was not there, and who did not commit the crime.

Today, that same prosecutor is a judge. He does not have to worry about facing sanctions, losing his job or suffering a loss of income. His career is set, even though he essentially killed an innocent man.

Think about it. We are supposed to PROTECT people like this? People who ignore evidence and people who win in court literally by killing others who do not deserve what is happening?

Yes, most people accused in criminal court are guilty. In fact, Wendy Murphy used that statistic as "proof" that Reade, Collin, and David were guilty. Nonetheless, there no longer are any real and meaningful safeguards in the legal system.

We point to Nifong's removal from office and disbarment as "proof" that "the system works." Wow. Only after the defendants spent millions of dollars debunking charges that as K.C. has pointed out were transparently false.

What kind of private business is able to pull off something like that? We see criminal prosecutions of business owners and managers all the time. We almost NEVER see prosecutions of people in the "justice" system, no matter how egregious their actions.

There never has been a conviction of a prosecutor in this country for prosecutorial misconduct. Never. Yet, we know that prosecutors engage in misconduct all the time. We know that prosecutors lie, hide evidence, or stretch the truth.

Yet, they are not accountable. When the actions taken against a known lying sociopath like Mike Nifong are "remarkable," then we have to pause for a second. Yes, he lost his license and his job and had to spend a day in jail.

Had a Durham jury convicted these young men -- and I am fully convinced that it would have, given the politics of that city -- then Nifong still would be in business. Nifong knew that all he needed to do was get this case to trial, and the system would protect his back all the way.

So, I rest my case. If the legal system is not good enough to protect prosecutors and judges and police, then it is not good enough to protect anyone else.

2/7/09 7:55 AM


bill anderson said...
I will add one more point. In this country, we give more protection for people who buy used cars than we do for those people who are accused of crimes. If a used car dealer sells you a lemon, he is liable for his actions.

If a prosecutor sells a jury a big lie, which was what happened in the Cole case, nothing happens. Read about prosecutorial lies and abuse, and you will see what I mean.

Nancy Grace was a prime example of a prosecutor who lied and bullied. What was her reward? Oh, she has a TV show in which she lies and bullies people, and makes big money for it.

Now, CNN should not have rewarded her for what she did, but had there been any system of justice that placed her under the same legal liability as a dealer of used cars, she would not have been able to prop up Mike Nifong as long as she did.

As far as I am concerned, the criminal justice system in this country is irretrievably broken. It cannot be fixed because the current system rewards those who lie and abuse it.

************

This is just a sampling. For more, go to this link and scroll down about half-way:

https://www.blogger.com/comment.g?blogID=32542246&postID=2300132357136727133&isPopup=true


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Bill Anderson
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Thanks for the mention. These really are back-and-forth debates and both One Spook and I recognize that as such. He makes good points, and I know that ending immunity would open a can of worms.

My reply to that, however, is that instead of a can of worms, right now we have a den of vipers. Had Nifong known that he would not have had immunity, does anyone think he would have done what he did? He was counting on (1) the Durham-North Carolina "justice" system backing him, and (2) absolute immunity, with friendly judges (such as his good friend and partner Ronald Stephens) backing his claims.

The first has nothing to do with immunity, but immunity does create the kind of climate in which prosecutors are little dictators with almost nothing to stop them. And don't forget that Nifong received most of the votes from black voters in Durham precisely because he did indict, so it seems that playing to the prejudices of voting groups still works quite well in Durham.

Here is something I had this morning, a follow-up to my earlier article:

http://www.lewrockwell.com/anderson/anderson239.html

It deals with the wrongful prosecution and ultimate death of Timothy Cole.

:bill:
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sceptical

Bill Anderson
Feb 9 2009, 07:18 AM
Thanks for the mention. These really are back-and-forth debates and both One Spook and I recognize that as such. He makes good points, and I know that ending immunity would open a can of worms.

My reply to that, however, is that instead of a can of worms, right now we have a den of vipers. Had Nifong known that he would not have had immunity, does anyone think he would have done what he did? He was counting on (1) the Durham-North Carolina "justice" system backing him, and (2) absolute immunity, with friendly judges (such as his good friend and partner Ronald Stephens) backing his claims.

The first has nothing to do with immunity, but immunity does create the kind of climate in which prosecutors are little dictators with almost nothing to stop them. And don't forget that Nifong received most of the votes from black voters in Durham precisely because he did indict, so it seems that playing to the prejudices of voting groups still works quite well in Durham.

Bill, it is enlightening to hear a reasoned debate by two smart people who disagree on an important matter of public policy.

Here is another segment from "One Spook''s argument with some interesting statistics:


One Spook said...
Bill, I certainly hope you understand that I am not contending that prosecutorial misconduct does not occur or that it is not wrong --- it does happen and it is certainly wrong. It is a problem, but I do not think we agree on how widespread the problem is in our legal system.

My point was that the removal of immunity for prosecutors is not a viable solution. You and I both used the word "distraction" because that word was used a court decision upholding immunity for prosecutors. I contend that removing this immunity would be far more devastating to our system of law than a mere distraction ... it would invite chaos.

And then you state, "
There never has been a conviction of a prosecutor in this country for prosecutorial misconduct." That's like asserting that "no one was burned at the stake as a criminal punishment." Both events are clearly illegal.

The system for punishing prosecutors rests with sanctions that are imposed by State Bar groups as we saw with Nifong.

At this site, The Center for Public Integrity studied cases of prosecutorial discipline.

"The Center [for public Integrity] studied dozens of cases since 1970 in which the prosecutor was disciplined. Of those 44 cases:
- In 7, the court dismissed the complaint or did not impose a punishment
- In 20, the court imposed a public or private reprimand or censure
- In 12, the prosecutor's license to practice law was suspended
- In 2, the prosecutor was disbarred
- In 1, a period of probation was imposed in lieu of a harsher punishment
- In 24, the prosecutor was assessed the cost of the disciplinary proceedings
- In 3, the court remanded the case to further proceedings."

If I'm reading the data correctly, 44 cases over a 38 year period seems like a fairly small number. As a solution to the problems that surfaced in the Duke hoax, I would be the first to agree that one solution to the problem is that Bar Associations need to take a more aggressive stance with respect to disciplining prosecutors.

And, we agree that the actions taken against Nifong should not have been "remarkable." I commented weeks ago that Nifong's punishment, touted by some as evidence that "the system works," is tantamount to saying that a pilot successfully parachuting from a burning plane is evidence that "flight safety worked." In fact, in Nifong's case, the system amounted to "the court of last resort" and it barely worked.

And yet, of all the bad actors in this case, Nifong, to date, is the only person who has been punished.

snip
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teddy bear

In a rare move, regulatory arm of the Colorado Supreme Court censured two prosecutors for failing to turn over evidence in the Tim Masters case. Even rarer, one of them, Jolene Blair, apologized (sort of) by saying she was embarrassed by the handling of the case, but had no evil intent and just missed the evidence. Sure she did: we are talking about hundreds of pages of notes from their forensic psychologist used to form his opinion about violent drawings found in Master's home, not to mention hair, fingerprints, and foot prints. Masters did 10 years..the two prosecutors(who are now judges(of course) get a reprimand but keep their Jobs benefits and pension. They should be in prison.
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teddy bear

teddy bear
Feb 9 2009, 02:45 PM
In a rare move, regulatory arm of the Colorado Supreme Court censured two prosecutors for failing to turn over evidence in the Tim Masters case. Even rarer, one of them, Jolene Blair, apologized (sort of) by saying she was embarrassed by the handling of the case, but had no evil intent and just missed the evidence. Sure she did: we are talking about hundreds of pages of notes from their forensic psychologist used to form his opinion about violent drawings found in Master's home, not to mention hair, fingerprints, and foot prints. Masters did 10 years..the two prosecutors(who are now judges(of course) get a reprimand but keep their Jobs benefits and pension. They should be in prison.
Sanctioned Judge Terence Gilmore says Hettrick case may never be solved. If so, its mostly his fault for botching the case 10 yrs ago. Incredibly, he goes on to state that "Judge Blair(his equally quilty co- prosecutor) is a little more convinced than I am that Masters was involved". He makes this statement in face of the fact that dna evidence of Hettricks former boy friend is on her panties, and the boy friend was seen with her in a bar the nite before she was found, not to mention that fingerprints of someone other than Masters were on her purse found at the scene. This is so typical of prosecutors..a complete inability to admit thay were wrong. It would seem to me that Gilmore's defamatory statement is outside any immunity defense. Hope so.
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teddy bear

teddy bear
Feb 9 2009, 02:45 PM
In a rare move, regulatory arm of the Colorado Supreme Court censured two prosecutors for failing to turn over evidence in the Tim Masters case. Even rarer, one of them, Jolene Blair, apologized (sort of) by saying she was embarrassed by the handling of the case, but had no evil intent and just missed the evidence. Sure she did: we are talking about hundreds of pages of notes from their forensic psychologist used to form his opinion about violent drawings found in Master's home, not to mention hair, fingerprints, and foot prints. Masters did 10 years..the two prosecutors(who are now judges(of course) get a reprimand but keep their Jobs benefits and pension. They should be in prison.
Sanctioned Judge Terence Gilmore says Hettrick case may never be solved. If so, its mostly his fault for botching the case 10 yrs ago. Incredibly, he goes on to state that "Judge Blair(his equally quilty co- prosecutor) is a little more convinced than I am that Masters was involved". He makes this statement in face of the fact that dna evidence of Hettricks former boy friend is on her panties, and the boy friend was seen with her in a bar the nite before she was found, not to mention that fingerprints of someone other than Masters were on her purse found at the scene. This is so typical of prosecutors..a complete inability to admit thay were wrong. It would seem to me that Gilmore's defamatory statement is outside any immunity defense. Hope so.
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Bill Anderson
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teddy bear
Feb 12 2009, 12:56 PM
teddy bear
Feb 9 2009, 02:45 PM
In a rare move, regulatory arm of the Colorado Supreme Court censured two prosecutors for failing to turn over evidence in the Tim Masters case. Even rarer, one of them, Jolene Blair, apologized (sort of) by saying she was embarrassed by the handling of the case, but had no evil intent and just missed the evidence. Sure she did: we are talking about hundreds of pages of notes from their forensic psychologist used to form his opinion about violent drawings found in Master's home, not to mention hair, fingerprints, and foot prints. Masters did 10 years..the two prosecutors(who are now judges(of course) get a reprimand but keep their Jobs benefits and pension. They should be in prison.
Sanctioned Judge Terence Gilmore says Hettrick case may never be solved. If so, its mostly his fault for botching the case 10 yrs ago. Incredibly, he goes on to state that "Judge Blair(his equally quilty co- prosecutor) is a little more convinced than I am that Masters was involved". He makes this statement in face of the fact that dna evidence of Hettricks former boy friend is on her panties, and the boy friend was seen with her in a bar the nite before she was found, not to mention that fingerprints of someone other than Masters were on her purse found at the scene. This is so typical of prosecutors..a complete inability to admit thay were wrong. It would seem to me that Gilmore's defamatory statement is outside any immunity defense. Hope so.
Oh, it is my contention that prosecutors simply don't care. I doubt either one believes Masters did it, and probably they did not believe it when he was tried and convicted. For many prosecutors, this is a game and nothing more. It is just that the rules favor them.

Yes, the prosecutor stands on third and is convinced he or she hit a triple, as opposed to having been put there by the rules of the state.

:bill:
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