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Given...certain recent events, there might be a renewed interest in discussing what redress (if any) we might have when a prosecutor misbehaves. Billy Binion of Reason Magazine tackled one of my favorite hobby horses in a highly recommended feature article: Absolute Immunity Puts Prosecutors Above the Law
I've written about the problem of having government officials with no accountability, from the standpoint of Seattle officials deleting evidence and within the context of the doomed over-prosecution of Kyle Rittenhouse. Nobody voluntarily seeks accountability when they don't have to, and so there's nothing surprising about the state, with its purported monopoly on violence, choosing to shield one of their viceroys. If you have any interest in fixing this oversight, one of the problems you'll encounter (as I wrote in the APAB post) is how selective the outrage is. Except for the principled civil libertarians screaming into the void, no one else cares about a leopard's diet until the moment the first layer of facial epidermis is being torn off.
Let's set the scene by highlighting Binion's main example:
Lefebure's lawsuit against D'Aquilla bounced around for several years before getting denied on the theory that as a prosecutor, D'Aquilla enjoyed absolute legal immunity. If you want to get away with raping someone, it's a boon to have friends in high places that can pull some levers for you. Even better if this friend can get caught pulling levers and nevertheless retain absolute legal immunity for pulling said levers.
Absolute immunity is exactly what it says on the tin, it's absolute. Even though the federal law §1983 allows a lawsuit against "every person", the courts over the years responded with a litany of "well it doesn't really mean that":
I have to admit there is a kernel of reasonableness within this doctrine. Attorneys can be subject to discipline by their licensing authority if it receives a complaint, and probably to nobody's surprise the two fields of law that combined generate almost half of all bar complaints are criminal law and family law (the latter is toxic for its own reasons). I've said before that my clients have almost always done the thing they're accused of, but if you take some of my more sociopathic convicts at their word, it's everyone else's fault. Of course. The only reason they got convicted is because their lawyer sucked, or the judge was biased, or the prosecutor was evil, or whatever. And so on. People sitting in prison have nothing to do, which is why almost a quarter of all federal lawsuits are filed pro se by prisoners. Bar complaints follow a similar pattern.
As a public defender, it's not a matter of if you'll get a bar complaint, but rather when and I've already had a couple myself. Theoretically, it would be dreadful to have to deal with the spectre of retaliation from unhappy defendants that Learned Hand warned about, but all my complaints were summarily dismissed without my input. There is so much garbage shoveled in by bored inmates that a fatigue miasma sets in over the entire disciplinary field. Almost nobody involves takes anything seriously, including potentially some of the meritorious ones. There goes yet another one whining about their rights being violated, sure.
When federal judge Richard Posner retired from the bench in 2017, he cited serious concerns with the deplorable way his fellow judges treated pro se lawsuits. It's that fatigue again, and according to Posner the judges came up with as many roadblocks and technicalities to ensure the definition of a line to be the shortest distance between a pro se lawsuit and the recycling bin. True to his word, he did set up an organization to offer free legal counseling to pro se litigants, only to quickly shut it down after they were drowning with overwhelming demand.
You can see an illustration of how the assembly line shredder plays out in this case out of Louisiana. In the middle of a misdemeanor trial, the judge granted a "mistrial" to help the prosecutor come back with felony charges. This is as crystal clear a textbook violation of the double jeopardy clause as you can get, but every single state appellate judge (who are also protected by absolute immunity) just kept rubber stamping 'DENIED' without providing any explanation. This defendant was lucky enough to actually have a lawyer handle his appeal and he eventually won after sitting in prison for only 840 days. On paper, 28 USC §1657 states that criminal conviction appeals must be expedited. In reality, fuck you. The federal judges on this appeal took their sweet time, and apparently saw nothing wrong with dealing with civil matters first. It's yet another criminal complaining about his rights. Ho-hum.
The reasons SCOTUS outlined in Imbler v. Pachtman in favor of giving prosecutors absolute immunity was a generalized concern that if prosecutors had to worry about personal liability, they might avoid presenting relevant evidence as a pre-emptive precaution. Further, judges dealing with post-conviction appeals might have their focus "blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment". If the way bar complaints and pro se petitions are treated today is any indication, it's not obvious to me that any floodgates would open here. The system already knows how to use a garbage can.
It's also not clear that the purported justification even matters here when the doctrine is blatantly self-serving. You can't sue judges and prosecutors for misconduct because fuck you that's why. Maybe the other reason this doctrine remains is that it's a Faustian bargain. Similar to the justifications for Qualified Immunity, occasionally putting our blindfolds on when an emissary of the sovereign commits a sin is just the price we pay for our undisturbed slumber. Our legal system promises equal treatment under the law, at least on paper. If we can't be selective about allowing only the Right People to pursue legal vindication against our esteemed pillars of the courtroom, it might potentially be used to help actual criminals. And we can't have that, can we?
I see all your points. I also see the counterarguments.
In principle, I agree, police and prosecutors should not have absolute immunity. And in theory, there is a remedy for bad actors: both can be disciplined and even removed from their jobs (and prosecuted in extreme cases) by internal review boards. In practice, a cop has to do something really bad to actually lose his badge, and I have no idea how many DAs have actually been subject to legal sanctions in the last 10 years, but I suspect that number is a much, much lower than it should be.
On the other hand, I do not think it's a small thing to fear the consequences of everyone unhappy with a cop or a DA (which would be... a very high percentage of the people they deal with) being able to sue them.
One of my more disreputable wastes of time lately is watching YouTube videos of, basically, people in trouble for being dirtbags like your clients. DUI arrests, tenant evictions, parole hearings, etc.
It quickly becomes very evident that there is a huge seamy underbelly of society made up of stupid, irresponsible, entitled, terrible people. And while the demographics may often look like what our HBD enthusiasts would assume, a lot of these people are white college students, soccer moms, grandpas... ordinary people, not just meth heads and welfare queens.
The majority of cops are reasonable and go out of their way to deescalate situations, and a lot of the people they end up arresting are... not even remotely reasonable or rational. These narcissists and sociopaths will commit obvious, blatant crimes and then scream at the cops for violating their rights when they're arrested. Putting handcuffs on them is abuse. I have seen so many videos of people turning what should have been a routine traffic stop into a felony arrest with them eating pavement because they decided to fight a cop over a traffic ticket. Sometimes they even do this while sober!
I have zero doubt that every one of those people would file lawsuits against everyone involved with their arrest and prosecution if that option were available to them. I don't think the system could handle giving all those suits any kind of fair consideration.
What's the solution? I think ideally, we'd put actual teeth into review boards and make cops and prosecutors actually fear being credibly (emphasis on credibly) accused of malfeasance. But no, I don't know how to accomplish that when you have professions policing their own with an obvious incentive not to police too hard.
At least based on my caseload, I can more-or-less confirm the impression you have about dipshits versus reasonable cops (although obviously the YouTube crowd is going to select for outrageousness).
Why not? I already mentioned that judges are primed to toss lawsuits in the garbage. If you get rid of absolute immunity, you'll get rid of a major legal hurdle, but there's no reason to think that the practical bias will change materially. Judges will have one less easy excuse to use the shredder, but they won't have none. If the video footage you cite is as clear as you describe it, why wouldn't a judge (who is already primed to favor police testimony) agree?
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I’ve noticed a lot of your worst examples seem to come from Louisiana. From my vantage point in Texas, Louisiana is a notoriously corrupt state with legal institutions that are terrible by US standards. Is this a coincidence?
I didn't notice that and unless I see some information showing otherwise I'm going to assume it's probably a coincidence.
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Louisiana's legal system is really weird by US standards, being (AFAIK) the only civil law jurisdiction in country. I imagine at least part of the reason you get the impression you do from it is due to it having different failure modes than common law systems, making those failures stand out more.
You should also consider why it has that Code rather than Common Law system, because Louisiana was a fully formed, settled, and important French colony before its addition to the United States in the Louisiana Purchase. While other states had prior European colonization before being added to the Anglo-American sphere, Louisiana is near unique in having a pre-existing French Creole social elite prior to colonization that survived accession to the USA; where Californian Spanish/Mestizos did not.
Engaging in Dissident Rightist's favorite game of Noticing, while decades of immigration and migration have slowly eroded the prominence of the old Francophone Creole elite and Cajun underclass, when you find corruption in Louisiana {and Mississippi} you'll find French names. There's a history of an insular local elite minority, that intermarries and excludes, dating back to Jefferson. Roman Catholicism, the French language, and devotion to preserving their culture. Combined with the legacy of slavery, which produced an unassimilated Black underclass, you had a legacy of a local insular Arcadian/Cajun white underclass which tried to preserve its local traditions, and a local insular Creole elite that tries to preserve its privileges. Even in a functioning democracy, if the locals all choose voting for other locals from "old families" and hiring for official positions from local old families with Creole connections, you have a spider's web of connections and corruption that it is difficult for immigrants to penetrate without acquiescing.
It’s worth noting that Quebec is also notorious for corruption within Canada.
While France doesn’t seem notably corrupt by European standards, European standards include places like Italy even if we limit it to Western Europe, and I wonder if France is significantly more corrupt than the UK.
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I was told by a bar interviewer that it was immigration, but maybe that is only in some states with lots of immigrants. There are certainly some attys who take advantage of desperate and poorly educated immigrants.
My source came from a CLE citing official state bar statistics. I can't imagine how immigration would come anywhere near criminal or family in absolute numbers, maybe they meant relative numbers? There's way more prosecutions and custody disputes than immigration proceedings. Representation is rare in the latter category and the biggest losers get deported out of the country, too far to bother with a bar complaint.
I dunno and I’m judging by attorney advertisements, but I see more ads for immigration lawyers than family lawyers in English(I live in Texas). If we assume volume roughly predicts advertising, with obvious exceptions for ambulance chasers and the like, then it looks like there are a lot of immigration proceedings that could generate complaints.
Advertisements are an imperfect proxy for volume because of how many lawyers are provided for free or low-cost. Criminal law is the obvious aberration, because around 80-90% of defendants qualify for a public defender. Some states and nonprofits also provide legal aid. My guess would be that immigration and family law are probably on similar footing on that front. The only other consideration I can think of is that immigration lawyers will chase after specific demographics, and that concentration will naturally encourage advertisement spending.
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No, he meant absolute numbers. This was NY, so again it is going to be higher than the country as a whole. But it looks like in 2019 there were about 10 million arrests in the US, many of which were for relatively minor offenses. Re immigration, there were 9 million nonimmigrant visas issued. About 5 million were tourist visas, leaving 4 million. But that is 4 million visas issued; total applications were of course higher. Plus 1 million green cards issued, plus 800,000 citizenship petitions, plus immigration court proceedings. Plus consultations that did not result in official petitions. So there is actually quite a bit of immigration volume.
Interesting. In WA immigration bar complaints were 4.6% of the total.
What year was that?
PS: It is possible that I am misremembering, and the claim was re complaints resulting in discipline, rather than total complaints.
2021
The immigration biz plummeted during COVID so that might have been a bit of an outlier year.
And is that pct of complaints or pct of attorneys. Because shady immigration attys can screw over a lot of clients; this guy apparently filed almost 1200 green card petitions, of which one was approved.
Fair point about COVID. This was percent of all complaints filed that year.
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That's the theoretical fear, but given the presence of the institutional Fatigue I mentioned, it's difficult for me to imagine a world where these frivolous lawsuits actually have an impact. Even if we assume that judges allow the worst civil lawsuits to plod along, what exactly is the concern? Normal people like doctors, construction contractors, accountants, etc all face fairly high litigation risk, and they seem to manage the lawsuits ok. It's reasonable to assume that prosecutors would face an even higher risk given the number of angry people they would deal with, but concretely what exactly will be the impact of that? I'm trying to imagine what the worst case scenario would look like, but for anything salient to come up you'd have to start assuming that judges (who are mostly former prosecutors) will start entertaining frivolous complaints at an alarming rate.
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Immunity seems like a good rule. Stops the lawsuits from going fractal.
If nothing’s going to change and the lawsuit will land in the garbage anyway, why overturn the rule at all? It’s not like it’s a good thing when de facto and de jure diverge. Lawyers do not need any more pay-to-play weapons to fuck with the system.
When you delegate a task or power to someone, controlling and second-guessing their every move defeats the purpose. I guess it comes down to a personal gut call on tradeoffs in the justice system, and I believe the current one is more fair than effective.
There's two factors at play. There's the institutional fatigue that lands most lawsuits in the garbage, and then there's the actual Law™ in terms of how each lawsuit should be evaluated. I don't have any quick fixes to get rid of the fatigue, but even today it doesn't get rid of every lawsuit. Sometimes things get through. Adding yet more filters on what the legal standard the system is allowed to use just winnows that flour sifter even further.
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Reading any lawyer's take on the court system seem to be a quick path to depression and dark thoughts for me.
I did have my own thoughts on political law-fare last month.
As an outsider the whole system seems broken. I don't trust it to have good outcomes for me, regardless of why of I entered. I'm not even sure I can go in and be a juror without getting held in some form of contempt. If it happens to be a law I don't think is right, then I am not going to send someone to jail, regardless of the evidence. That viewpoint also conveniently sounds like lying to get out of jury duty.
I'm sure for people who work in the court system my fears probably seem overblown. I know in my rational mind I'm likely to have boring and uneventful interactions with a court of law, if any. But my heart screams in terror at the level of routine injustice carried out by the courts. Its a game rigged by them to always win. They only seem to lose by their own sheer incompetence (accidentally handing over exonerating evidence that they meant to with-hold).
I think at a minimum that if evidence was found to be withheld that later exonerates someone it should be grounds for immediate disbarment. And my hope, though I doubt it would happen, is that once disbarred they no longer should enjoy absolute immunity. So a single major fuckup means they lose their job. Two major fuckups and they can be held accountable. But I'd happily settle for them just losing their jobs.
All of this talk coming from the prosecutor in New York that no one should be above the law is just disgusting coming from someone who has absolute immunity.
Being late to court or disobeying the gag order while the trial is pending might get you held in contempt, but jury nullification won't
I didn't think about that. Rich.
https://www.ndsn.org/dec96/kriho.html
Kriho was convicted, though the case was overturned on appeal 3 years later.
Interesting, I hadn't heard of that case before. Thanks for linking.
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But from your own description above, "help actual criminals" can mean things like "criminals filing meritless lawsuits because they have lots of free time in jail, and who knows, they may get lucky" and "potential lawsuits from criminals discouraging prosectors from beingng legitimate cases against them". These things help criminals, but not in ways that I'd want to encourage.
If you just want to help actual criminals, abolish the penal system and declare that all criminals immediately get released onto the streets. I guarantee you that'd be tremendous help to actual criminals.
Helping criminals is not the end goal here, it's just an incidental effect. Lots of things help criminals even though the demographic is not the core intended beneficiary. For example, the fact that police need a warrant to search a home.
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Case documents for anyone interested: 1 2
You're embarrassing me. Thank you.
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I will admit I've never understood the argument for absolute prosecutorial immunity. I understand, at least in principle, that qualified immunity makes sense -- although in practice it's stretched comically far -- to protect good-faith but mistaken exercises of government authority. Especially in the heat of the moment, I can appreciate that mistakes happen. But prosecutors aren't operating in haste and should have plenty of time to consider their moral and legal obligations before they take actions. I don't think they can earnestly argue haste due to the right to "speedy trial", because trial dates seem frequently long-delayed.
Would someone care to convince me that absolute immunity in this context isn't just those in power protecting themselves at the cost of the rights of everyone else?
Well, for one thing, a prosecutor who is subject to suit would be very reluctant to look sideways at anyone with deep pockets. Those people would therefore have de facto immunity for criminal behavior. Courts have also noted that prosecutors would be reluctant to dismiss cases, once filed, if they turn out weaker than initially thought; they would want to get some sort of conviction, at least on a lesser charge.
There would essentially be a major principal-agent problem, with the prosecutor's personal interests diverging from the interests of the public.
IMO this problem already exists with absolute immunity: career prosecutors are highly incentivized to win prominent cases. There are plenty of examples of prosecutors withholding defense-friendly evidence or otherwise violating constitutional rights. I don't see a clear reason that prosecutorial immunity needs to be unqualified: at least we recognize theoretical bounds in the extent that police officers can violate rights before civil and criminal penalties should apply.
But thank you for the explanation, this thread has definitely made me consider a new-to-me reason why the legal system may be ill-suited to policing itself with respect to the broader public's constitutional rights and general interests. I'll have to ponder on how it could be better-aligned.
To be clear, neither qualified nor absolute immunity protects either cops, judges or prosecutors from criminal prosecution, nor from disbarment or other discipline.
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You made the same point last time in the context of QI and I have to concede it's likely to be a valid concern. My inclination is that it would still be worthwhile to get rid of absolute immunity, in part because money already affords a shield now.
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As the OP suggests, it's a question of numbers. Let's say 1 in 10,000 lawsuits are valid. But you don't know which one, so it takes some time to figure out. That's a massive amount of resources. Absolute immunity allows the court system to simply toss all those lawsuits out.
It's the frivolous lawsuit problem on steroids. Every person a judge ruled against or a prosecutor prosecutes has reason to file against that judge or prosecutor.
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