| SCOTUS Nov . 4, 2009 Was Nifong a cop?; Cop or prosecutor: my distinction | |
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| Topic Started: Nov 4 2009, 09:28 PM (802 Views) | |
| Tidbits | Nov 4 2009, 09:28 PM Post #1 |
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Years ago, I summarized a key concept this way: Was Nifong a cop, or prosecutor? Today, SCOTUS justices ask, "was the prosecutor a cop or prosecutor?" (paraphrased.) page 6 "JUSTICE GINSBURG: I'm not sure that I fully 3 grasp your answer to my first question and to Justice 4 Kennedy's, that is, yes or no, if everything that 5 happened was alleged to have happened, but it was done 6 by a police officer or a different prosecutor, 7 nonetheless, the trial went on, the fabricated evidence 8 was introduced, without any participation by the actual 9 prosecutor in that fabrication, does a conviction -- 10 does the -- do the police officers or the prosecutors 11 that was not involved in the trial get absolute -- are 12 they -- are they no more liable, not because they have 13 absolute immunity, but because the trial and conviction 14 at which the evidence was used overtakes what liability 15 they might have had, absent the trial?" http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1065.pdf |
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| Tidbits | Nov 4 2009, 09:30 PM Post #2 |
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POTTAWATTAMIE IOWA, ET AL., v. CURTIS W. MCGHEE, IIRC, I posted on the case below when it was issued. |
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| Tidbits | Nov 4 2009, 09:30 PM Post #3 |
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Nifong's name did not get mentioned. |
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| Tidbits | Nov 4 2009, 09:31 PM Post #4 |
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Some Tidbits: JUSTICE KENNEDY: Your -- your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons. MR. SANDERS: Your Honor -- JUSTICE KENNEDY: I mean, we were just spinning our wheels in that case? |
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| Tidbits | Nov 4 2009, 09:33 PM Post #5 |
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6 JUSTICE KENNEDY: Take two cases. One is 7 Justice Ginsburg's case, a police officer fabricates the 8 evidence, dupes the prosecuting attorney, or -- or 9 doesn't fully disclose. Case two, a prosecutor does the 10 same thing and gives it to a fellow prosecutor. 11 12 same? The stray numerals are line numbers. cut and paste |
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| Tidbits | Nov 4 2009, 09:37 PM Post #6 |
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4 JUSTICE SOTOMAYOR: But you have no reason 15 to dispute the numerous studies we were provided that 16 show that as a matter of routine prosecutors are not 17 sanctioned for improper prosecutorial conduct in the 18 investigatory stage, are you? 19 MR. KATYAL: Well, I do think that there is 20 a debate in the briefs before this Court, including the 21 brief by 12,400 or so prosecutors that takes the reverse 22 view. But be that as it may, I think that is a 23 for the legislature. |
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| Quasimodo | Nov 4 2009, 10:28 PM Post #7 |
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Sounds to me like the court may further shorten the cloak of immunity for prosecutors...? |
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| Quasimodo | Nov 4 2009, 10:33 PM Post #8 |
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(Tidbits--Thanks for finding this!) JUSTICE KENNEDY: So the -- so the law is the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition. MR. SANDERS: Your Honor, I think it's not the more deeply you are involved, it's whether you are in the unique position of a prosecutor to cause injury by use of the evidence at trial. That is exclusively a prosecutorial function. The function test of -- of Buckley goes to what function someone is performing, but only the prosecutor can ever perform the function of actually using the evidence. JUSTICE GINSBURG: But it's strange to say you can have a prosecutor, who wasn't involved in the trial, would have liability, but as long as the prosecutor, in effect, turns the investigatory stage material over to himself, rather than to another prosecutor, then there's absolute immunity. Edited by Quasimodo, Nov 4 2009, 10:34 PM.
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| Quasimodo | Nov 4 2009, 10:37 PM Post #9 |
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JUSTICE SOTOMAYOR: But that makes no sense because, if you go down that road, then what you're saying is that neither the -- neither a police officer or a different prosecutor [who doesn't conduct the trial] who fabricated evidence could be liable, either, because the only person who causes the deprivation is the [another] prosecutor who uses the false evidence at trial. MR. SANDERS: Your Honor, this Court has not spoken to that question... (I think it may be going to do so...) Edited by Quasimodo, Nov 4 2009, 10:37 PM.
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| Quasimodo | Nov 4 2009, 10:50 PM Post #10 |
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JUSTICE SOTOMAYOR: You're confusing -- the constitutional injury is the deprivation of liberty. [i.e., being falsely and maliciously arrested. Even one hour, even one minute, of deprivation of liberty is a constitutional violation of one's right to be free] That's the injury. MR. SANDERS: That's correct. JUSTICE SOTOMAYOR: What causes that injury is not an element of the crime. It is -- the question is have you proven the violation, have you proven the injury. (snip) MR. SANDERS: Your Honor, as we discussed in our opening brief in this case, I think that Judge Fairchild's reasoning is classic malicious prosecution reasoning. That is, that it's the false evidence that impelled the prosecution. But again, this Court has been absolutely clear that a malicious prosecution theory cannot be asserted against a prosecutor because a prosecutor can initiate willfully and maliciously a wrongful prosecution based on good evidence, bad evidence, or no evidence at all. It's simply untenable to say -- and this Court's decision last term in Van de Kamp made clear that where the injury comes at trial, where that is the interest protected against, that you can somehow abrogate immunity and continue with a case based on that kind of claim based on a claim of an earlier due process right -- JUSTICE GINSBURG: Was there no injury in the period before? Let's leave out the trial for a moment. There was a deprivation of liberty during the investigatory stage. MR. SANDERS: Your Honor, I think any earlier deprivation of liberty would be covered by the Fourth Amendment. The Fourth Amendment is not implicated in the question presented here. It has not been briefed. Surely there would be an interest against wrongful seizure or, since this -- these arrests were pursuant to legal process, against a form of malicious prosecution. But again, that would be a Fourth Amendment theory and it could not be asserted if it is malicious prosecution against a prosecutor. JUSTICE STEVENS: Would you clear up one thing for me I really don't quite understand. You do agree that if the police officers did this there would be liability? MR. SANDERS: Your Honor, this Court has not addressed that issue. That is the view of some of the circuits and the Restatement. JUSTICE STEVENS: Are you assuming that to be correct or are you disputing that? MR. SANDERS: We're assuming that to be correct, but if I -- JUSTICE STEVENS: But if that's true, why doesn't the trial immunize the police officers because they didn't cause the trial? Well, they were in the background in the same sense that these prosecutors are. But why would the police officers be liable? MR. SANDERS: A police officer would never get immunity at trial because -- JUSTICE STEVENS: Not to get immunity, but why is he liable? Why is he liable? Because the injury was caused by the trial, if I understand your theory. MR. SANDERS: The theory of the common law on malicious prosecution would be that the police officer is liable because his fabrication of evidence impelled the proceeding, caused the proceeding . JUSTICE STEVENS: But it was not a malicious prosecution. The prosecution -- the prosecutors acted in good faith all the way through, so there is no malicious prosecution. So what is the basis for liability against the police officers? MR. SANDERS: The basis for liability precisely against the police officer would be the violation of the due process right to a fair trial, Wrongful conviction on the basis of the introduction -- JUSTICE STEVENS: Why doesn't the theory apply to the facts of this case also? |
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| Quasimodo | Nov 4 2009, 11:06 PM Post #11 |
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JUSTICE KENNEDY: What if a prosecutor knows that it's fabricated evidence? The police officer fabricates the evidence and says: Mr. Prosecutor, it's a very bad man; I fabricated the evidence. The prosecutor introduces it. What result there? (snip) JUSTICE KENNEDY: Again, the more aggravated the tort, the greater the immunity. MR. KATYAL: And I agree that that seems a little odd -- (snip) MR. KATYAL: No, what I'm saying and what this Court's decisions have said is that absolute immunity doesn't exist to protect bad apples. It reflects a larger interest in protecting judicial information coming into the judicial process. And if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence. And that is the distinction between the police officer, who is liable, and the prosecutor, who is -- who is absolutely immune. JUSTICE SOTOMAYOR: A prosecutor is not going to flinch when he suspects evidence is perjured or fabricated? Do you really want to send a message to police officers that they should not merely flinch but stop if they have reason to believe that evidence is fabricated? MR. KATYAL: Justice Sotomayor, we absolutely want to send that message. The worry is that allegations of wrongdoing, as this Court has recognized in Imbler and Van de Kamp, can -- can supersede that. And just to give you -- JUSTICE SOTOMAYOR: Am I right that none of the -- neither of the two prosecutors in this case were sanctioned in any way for their conduct? MR. KATYAL: I believe that is correct, and I also believe that no ethics complaints were ever brought. That is, rather the Respondents went into Federal court seeking money damages instead of ethics violations and the like. JUSTICE SOTOMAYOR: But you have no reason to dispute the numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage, are you? MR. KATYAL: Well, I do think that there is a debate in the briefs before this Court, including the brief by 12,400 or so prosecutors that takes the reverse view. But be that as it may, I think that is a question for the legislature. This Court has said repeatedly that those ethics and disciplinary violations are -- are a successful deterrent, and there is others as well that this Court has pointed to that may be available, including counsel's liability. JUSTICE KENNEDY: Well, you can't have it both ways and say this is a policy we should take into account and then when Justice Sotomayor asks you a question, say: Oh, well, that's for the legislature. I mean, you're -- it seems to me you're trying to have it both ways. MR. KATYAL: Well, with respect to a cause of action and whether the principles of absolute immunity apply to this, I think this Court has already recognized several times that the overriding interest is protecting the judicial process and not letting information be chilled and not come in. [Isn't the 'overriding interest' to do justice? Isn't this advocating the sacrifice of a few innocent defendants in order to protect the 'judicial process'?] To give you a couple of data points, there were 14.4 million arrests in the year 2006 and 1.1, approximately, million felony convictions. Respondents' theory would allow prosecutors in any of those circumstances to be sued for an alleged fabrication of evidence, and that's something that could be -- that's something that's not that hard to envision, since criminal evidence, unlike civil evidence, is messy. It often involves cooperation agreements, leniency agreements and the like, and for that reason it's very natural, and this Court has recognized that in Imbler, for the defendant in a criminal case to say: Well, I'm going to blame the prosecutor; they fabricated evidence, they made this story up; and -- and then seek civil liability. And what this Court has said repeatedly is that the societal interest suffers. [So we should let a few innocent defendants be convicted on falsified evidence, instead? So Dreyfus should be convicted, for the sake of "societal interest"? So Leo Frank should be lynched, for the sake of "societal interest"? When they see what nonsense humans are spouting, the angels must scream! ] And that is why it's not about, Justice Kennedy, protecting the bad apple and someone who exacerbates the harm by carrying the fabricated evidence through trial. Rather, what this Court's absolute immunity decisions consistently reflect is the principle that when someone is introducing evidence at trial, you don't want to chill them in the performance of their duties in any way through the rubric of civil liability. JUSTICE STEVENS: I don't understand why at the time of introducing the evidence, the policy concerns that you've described arise, because we were criticizing what he did before he introduced the evidence. MR. KATYAL: When -- when the evidence is introduced and it's the prosecutor himself who developed that evidence, maybe through flipping a witness or something like that, that -- JUSTICE STEVENS: Right, and he would know whether or not it was fabricated. MR. KATYAL: Well, he would know whether or not it's fabricated, but the question is whether he would know that he could insulate himself from an allegation of wrongdoing. And Respondents' theory, which allows the due process clause to be some sort of free-standing right, would permit those suits even at the earliest stages of an investigation and permit strike suits even before the criminal process is underway. And that, I think, is a fundamental point, which is this Court, no court has, ever really accepted the notion that prosecutors can be liable, that there is a cause of action for -- JUSTICE STEVENS: But haven't we said that during the investigating stage their conduct is subject to different rules than during the trial? MR. KATYAL: For purposes of absolute immunity, and we agree with that. So, for example, Justice Stevens, in your Fourth Amendment decision in 1975 on the Seventh Circuit, we agree there is liability when a prosecutor is, for example, conducting a raid or something like that. There the constitutional violation is complete before the trial, and whatever the prosecutor does at trial -- JUSTICE STEVENS: I just don't see the -- I don't to see if I can understand the reason why the time in which the violation is completed, namely after the trial, goes to the question of whether there is liability for pretrial conduct. MR. KATYAL: Well, we think there is no liability for pretrial conduct, and so long as you agree with me that the due process clause violation begins only at the trial -- JUSTICE STEVENS: It was completed at the trial, but it began when the -- the phony investigation started. MR. KATYAL: The -- the text of the due process clause says the deprivation of life, liberty, property with -- under due process of law, and due process under this Court's decisions is what happens at trial, not before. [I am, to say the least, flabergasted at that last remark. A violation of due process, and a deprivation of liberty, and thus, "injury", certainly can occur before trial--a fact which is recognized when it is admitted that falsely and maliciously jailing a person for even one minute is a deprivation of his constitutional right to be free and at liberty.] CHIEF JUSTICE ROBERTS: Thank you, Mr. Katyal. Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT Edited by Quasimodo, Nov 5 2009, 12:10 AM.
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| Quasimodo | Nov 4 2009, 11:12 PM Post #12 |
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ORAL ARGUMENT OF PAUL D. CLEMENT As I listen to Petitioners, I hear two arguments to why there ought to be liability for the prosecutor -- rather, for the police officer and not the prosecutor, and both of those are arguments this Court has already heard and rejected. On the immunity issue, the argument Petitioners make seems to distill to the proposition that as long as you're suing a prosecutor for injuries inflicted at trial, the prosecutor ought to have absolute immunity. Now, that's not a crazy theory of immunity. It's exactly the theory of immunity that the Seventh Circuit adopted in the Buckley decision and this Court reversed, unanimously as to the press conference and by a majority opinion with respect to pretrial investigatory conduct involving fabrication. If that sounds familiar, it should. That's the conduct that's at issue here. So the absolute immunity issue in this case was decided in Buckley. Now -- JUSTICE ALITO: When the issue, when the --the claim is based on the evaluation of the truthfulness of a witness who eventually testifies at trial, where's the line to be drawn between the investigative stage and the prosecutorial stage? MR. CLEMENT: Well, I think, Justice Alito, the place to draw the line is the place this Court drew the line in Buckley, which is probable cause. And before probable cause, when prosecutors are engaging in investigatory functions, I don't think we want them shaping the witness for trial. I think we want them trying to figure out who actually committed this crime and who would we have probable cause to perhaps initiate process against. |
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| Quasimodo | Nov 4 2009, 11:34 PM Post #13 |
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MR. CLEMENT: In -- in the typical case, if -- if the witness perhaps in the first instance comes up with one testimony and later comes up in -- with a different story later, the question for purposes of absolute immunity is going to be, did all of the conduct that you're alleging, the fabrication, did all of it take place before probable cause attached? And in a lot of cases prosecutors don't even get involved until after probable cause, until after there have been arrests, something like that. And in those cases -- JUSTICE ALITO: That's an entirely false picture of the way any sophisticated prosecution is handled today, completely false. You want -- the prosecutor may not know whether there's probable cause until the prosecutor interviews the witness. [how about if he doesn't interview the witness until ten months after indictments?] MR. CLEMENT: And, again -- JUSTICE ALITO: And so then you have to go back and determine whether there was -- if there wasn't probable cause before the interview, then there is liability. But if there was probable cause before the interview, then there isn't liability. MR. CLEMENT: I think if I understand your hypothetical, the question would actually be whether there was probable cause before the re-interview, because if at the point -- JUSTICE ALITO: Before the re-interview, because the prosecutor doesn't want to take the case to the grand jury before looking this witness in the eye and seeing whether this -- this guy who's got a lot of impeachment baggage is -- is a -- is a credible witness. MR. CLEMENT: Well, two things, Justice Alito. First of all, if you have all -- if you had the interview and the re-interview before probable cause and you have the allegations that it was done for the avowed purpose of depriving the person of their liberty, then you would, I think, apply Iqbal, and you would ask under all the circumstances of that case whether it's a plausible allegation. And this Court is obviously in a better position than I am to say how it would apply Iqbal in those kind of cases. But what I can tell you is that for nearly a decade the Second Circuit has had this rule. Now, the Second Circuit is the circuit that brought you Iqbal. So for that same decade they did not have the rule of Iqbal, and yet they didn't have a torrent of these claims. So, I think going forward, if you recognize these claims -- (snip) MR. CLEMENT: (snip) Now, in footnote 8 this Court recognized that actually you could sue a prosecutor for retaliatory inducement to prosecute if you focused on the investigatory activities. That's exactly the same basic theory we have here, which is you focus on the investigatory activities of a prosecutor and say that there is a valid 1983 claim. Now, again, to my knowledge there have not been a flood of Hartman claims brought against prosecutors. I think -- CHIEF JUSTICE ROBERTS: What -- what is the basis for the 1983 claim without the submission at trial? MR. CLEMENT: Without the submission at trial -- I mean, it would depend, I suppose, on the circumstances. You could have, certainly, a Fourth Amendment -- CHIEF JUSTICE ROBERTS: Well, you know I'm not talking about the Fourth Amendment violation, which is complete whether there's a trial or not. MR. CLEMENT: Well -- and then maybe I just need a concrete hypothetical. Let's say -- let's say --let me -- let me provide one. Suppose that there was this -- the prosecutor put on this fabricated evidence at trial, and then the -- the whole case sort of unraveled because the system actually worked the way it's supposed to. On cross-examination the witness cracked and it became clear that there was this conspiracy to use perjured evidence. Now, at that point -- I mean, I suppose the government's theory would be because you never deprived the person of their liberty, the knowing use by the prosecutor of perjured testimony at trial does not violate the due process clause. But I hope that's not the rule. I mean, I hope that in a Mooney case, if you bring the -- make a Mooney violation against somebody who is actually guilty, so you knowingly use perjured testimony against somebody that's -- that's guilty, so if you did a harmless error analysis, you would say, well, the use of the perjured testimony really didn't deprive the person of their liberty because they were otherwise -- (snip) MR. CLEMENT: No, I think it illustrates the principle, which is you don't have to have a completed constitutional violation in your 1983 action. I mean, Malley illustrates that principle, but so does the text of -- of section 1983, frankly. Section 1983 doesn't force you to have a completed constitutional violation. It provides liability if you subject someone to a constitutional violation or cause them to be subjected to a constitutional violation. (snip) MR. CLEMENT: Well, I think there is going to be an effect on the deterrent effect on the prosecutor pretrial, which is they will be procured. I mean, think about the contrary incentive you're --you're creating. Suppose you're a prosecutor. You've participated in the misconduct before trial. You now have the decision to make: Okay, I was -- I was complicit in the fabrication of this perjured evidence; should I put it on into evidence? Well, let's see. If I don't put it on into evidence and I come clean now, I'm actually liable for the arrest and all the pretrial detention. If I actually introduce it into evidence now, I'm scot-free. JUSTICE BREYER: There's a different tendency, which I would say this is a slight fluke, what you're describing. [He's not very familiar with the real world, it seems, IMHO...] I'm more worried about what Justice Alito brought up, that, other things being equal, I think it's probably a good thing to get prosecutors involved in the questioning process. That -- that has a kind of check on the police.  [See above.] |
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| Quasimodo | Nov 4 2009, 11:41 PM Post #14 |
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MR. CLEMENT: (snip) Because think about the prosecutor's special function. If you don't have probable cause to arrest any individual for a crime, then the function the police officers ought to be performing is one of a truth-seeking function and that is a classic police investigatory function. Now, the moment they have probable cause, I'm willing to listen to the argument that at that point they shift roles, and at that point they're [the prosecutors] not looking at the evidence the way the police officer is, just to find out whodunit; but they're looking at it to say, well I have a job to do, I have to put a case on, and, you know, this person says what they say, and, you know, there's some problems with that and the jury's not going to believe that, so let me talk to him some more. (snip) MR. CLEMENT: I just wanted to say the incentive would really be perverse. Under Burns, if the police -- if the police officer comes to the prosecutor and says -- you know, we want to fabricate evidence to frame it, can we do it? And the prosecutor says, yes, you can do that, go ahead; there's qualified immunity. Now, if the prosecutor says, go ahead and let me help, there would somehow be absolute immunity. I mean, that is really an anomalous result, that it's the anomaly that caused this Court in Buckley to draw the line at probable cause. (snip) I think it's clear, from this Court's cases -- there may not be a case that lines up all the dots exactly, but I think it's clear, from this Court's cases, that the police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable. I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is, if they not only participated in the pretrial misconduct, but completed the scheme by committing further misconduct at trial. For all those reasons, we think the Court should affirm. Thank you. |
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| Quasimodo | Nov 4 2009, 11:45 PM Post #15 |
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JUSTICE STEVENS: Yes, but what about the pretrial detention? Isn't that a deprivation of liberty? MR. SANDERS: Your Honor, it would be, but that would be Fourth Amendment territory. JUSTICE STEVENS: Why would it be Fourth Amendment? Why isn't it Fourteenth Amendment right on the nose? They're deprived of liberty without due process of law. MR. SANDERS: Your Honor, this Court --seven justices in this Court's decision in Albright agreed that there was no due process cause of action for the wrongful institution of criminal proceedings, that in that case there may be some sort of Fourth Amendment claim. There may be some sort of State law claim under Parrot v. Taylor, but I have not -- JUSTICE STEVENS: But that case talked about the institution of prosecution, not the deprivation of liberty during pretrial detention, which is a different matter. |
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