Prosecutors Shouldn't Have Immunity From Their Unethical –- or Unlawful –- Acts

This article originally appeared in The Guardian on Feb. 5, 2015.

By Alexa Van Brunt

It’s a tough thing to keep prosecutors accountable to the public, but some people are trying very hard to do just that in the aftermath of Ferguson. One of the grand jurors who failed to indict former police officer Darren Wilson in the death of Michael Brown, for example, wants to make public what happened in the grand jury room. But grand jury proceedings are secret, under both federal and state law, including in Missouri. So last month that juror took legal action seeking to break his silence. Meanwhile, an advocacy group filed a bar complaint against St Louis prosecutor Bob McCulloch for alleged misconduct committed in that same process.

These attempts expose just how difficult it can be to hold prosecutors to any standard of conduct. Most misbehaving prosecutors are never brought to justice, thanks in large part to the law of prosecutorial immunity, which holds that prosecutors cannot be sued for violating citizens’ rights in the courtroom. Until we change that law, courts need to open grand jury records at the request of people like the Ferguson juror “John Doe”.

Prosecutors are totally in control, to an almost dictatorial degree, of key judicial processes – including, as we saw in Ferguson, the grand jury process. Your average citizen on a grand jury usually doesn’t understand the state’s criminal laws, so they rely heavily on the prosecutor to guide their decision, and jurors decide cases only by way of the facts that the prosecutor chooses to reveal. When indictments aren’t handed down – as in the grand jury proceedings of Wilson and Daniel Pantaleo, the officer who killed Eric Garner – it is the prosecutors who areresponsible.

In 1976, the Supreme Court held in Imbler v Pachtman that prosecutors are absolutely immune for any activity considered to be “intimately associated with the judicial phase of the criminal process.” That principle has since been challenged with some success in a couple federal suits, but the law for the most part remains in effect.

The rule of prosecutorial immunity has wide-ranging consequences: it means that a prosecutor who induces a witness to lie under oath is immune from civil liability; that if a prosecutor withholds evidence of a defendant’s innocence at trial (a “Brady violation”) and the defendant is wrongfully convicted, the defendant has no legal recourse against the prosecutor.

Civil liability represents the best hope for taking prosecutors to task, since they are rarely subject to disciplinary action for violating their ethical obligations by state bar authorities. A 2011 Yale Law Journal survey confirmed that professional discipline is rarely meted out in even egregious cases prosecutorial misconduct: the article reviewed an analysis by the Northern California Innocence Project, which identified 707 cases between 1997 and 2009 in which courts found prosecutorial misconduct, yet a review of state disciplinary proceedings unearthed only 6 cases involving such misconduct. A study by the Center for Public Integrity, also described in by the Yale Law Journal, made similar findings in an analysis of appellate court cases.

Some, including Chief Justice of the Supreme Court Roberts, believe that the deconstruction of absolute immunity would have a “chilling effect” on prosecutors; that fear is misplaced. The law does not give other law enforcement officers, like the police, absolute immunity. Rather, they may claim what’s called “qualified immunity” – immunity which applies only when they have not violated a citizen’s “clearly-established” constitutional or statutory rights. Prosecutors could similarly receive such limited immunity, including protection from lawsuits for acts committed in good faith.

But such changes will be hard to achieve. Judges have a vested interest in protecting prosecutorial immunity; they’re lawyers themselves after all, and many are former prosecutors. And ethical codes proscribing attorneys’ conduct are also written by lawyers, so that the ethical rules passed down by the American Bar Association and individual state bars offer little help to victims of prosecutorial misconduct. Model Rule 3.8 does not compel prosecutors to actively seek justice, for instance, by requiring that they investigate evidence that could prove the innocence of a defendant in a criminal case.

While prosecutors are technically susceptible to criminal charges for their unlawful conduct, such charges are basically unicorns in the criminal justice world. Convictions are even rarer creatures. Witness the 2013 conviction of former Texas prosecutor Ken Anderson, the first prosecutor in the country to be imprisoned for deliberately convicting an innocent person. He withheld evidence crucial to the defense of an accused murderer that resulted inthe defendant spending 25 years in prison. Even then, Anderson spent a mere 5 days in jail for his crime.

In the absence of changes to the law it will remain up to the public to demand accountability for prosecutors. That means lobbying head prosecutors to discipline assistants who violate their positions of power – not just in well-publicized cases, but whenever justice is disserved. And it means raising a voice at the ballot box against thoseprosecutors who relinquished their responsibility to the electorate – including against Daniel Donovan, who oversaw the non-indictment in the Garner case, and Robert McCulloch.

Juror John Doe stated in his filing to lift the gag order in the Brown case that providing transparency into those proceedings would provide a counterpoint to the prosecutor’s statements about the outcome of that Michael Brown case, and also “contribute to the current public dialogue concerning race relations.” Prosecutors may, for now at least, be able to cloak their transgressions in the courtroom behind the shield of immunity, but they should have no such shield from the public eye.

- Alexa Van Brunt is a clinical assistant professor of law at Northwestern University.