07 November 2007

Are Frivilous Lawsuits Worth Bringing?

In Texas, the wife of a death row inmate put to death prematurely as a result of the unprofessional conduct of the chief judge of highest criminal court in the state has sued the judge.

I am almost completely certain that the lawsuit will not prevail. Indeed, it will almost certainly be dismissed on the pleadings pursuant to Federal Rule of Civil Procedure 12. Judges have absolute immunity for their judicial acts. Unprofessional conduct may be grounds for judicial discipline or removal from office (either by a judicial conduct body, or by impeachment). But, it isn't a ground for civil liability. The prosecutor, likewise, has absolute immunity or something very close to it.

Realistically, the only party in the situation with potential civil liability to the widow, is the lawyer for the man on death row -- given the short notice upon which that attorney acted, the excusable neglect involved in computer problems, and the unreasonableness of the judge in granted an extension of time to file a motion, in a very difficult kind of case, this is unlikely. Texas has tolerated far less competent acts by criminal defense lawyers for men on death row before without imposing liability.

The lawsuit will bring publicity, and may even produce a "no liability but she's still a scumbag" type of opinion from the federal judge, but places the widow at considerable risk of liability for the state's attorneys' fees in the action.

The attorney bringing the lawsuit can be careful to plead it as a "good faith argument for change in the law" case, but those rarely win. Probably the best argument would be to argue a taking without just compensation or due process of law, but that is a very hard case to make.

The distraught widow obviously wants justice. But, I'm always skeptical of efforts to obtain it that are highly likely to fail.

1 comment:

Andrew Oh-Willeke said...

The case brought against child protective services for not doing their job in Colorado, is likewise likely to fail, although it is perhaps more likely to produce policy changes with publicity from the suit.