04 November 2009

Is There A Right Not To Be Framed?

Does a prosecutor who fakes evidence in the pre-trial phase of a criminal case, and then introduces it at trial to procure a wrongful conviction, have absolute immunity from being sued under federal civil rights laws for doing so?

This is the issue that the Justice of the U.S. Supreme Court discussed at oral argument today. Prosecutors argued that it is too easy to state a plausible claim that a prosecutor faked evidence when he didn't actually do that, and that this kind of suit would gum up the works of the criminal justice system. The lawyer for men wrongfully convicted based on evidence faked by a prosecutor argue that where this kind of lawsuit was permitted, that very few cases were brought against prosecutors.

Justice Kennedy, whose vote frequently decides close cases on the U.S. Supreme Court, together with the liberal justices on the court, was highly critical of the prosecutor's claims. The conservative justices on the court, and more liberal Justice Breyer, expressed prudential concerns about this kind of claim, but were not particular vehement about doing so.

While it is always perilous to predict the future, it comes with the whole prophet business, and it looks likely from oral argument that prosecutors will be found to have only qualified immunity for pre-trial constitutional violations, although it is not necessarily easy to see exactly how this pre-trial and post-trial lines will be drawn.

Simply put, saying that a prosecutor hasn't committed an actionable violation of a constitutional right when he or she deliberately fakes evidence before trial in order to frame someone sounds indefensible. Faking evidence for the purpose of framing someone sounds like a very bad thing for a prosecutor to do, and if that means more time and effort spent by courts in a gatekeeping function, so be it.

Also strikingly, from an originalist point of view, former Solicitor General Clement, arguing for the convicted men, pointed out that there is no qualified or absolute immunity under common law or the language of the statute in question, when the statute was enacted, and there is no good reason to believe that Congress intended the statute to be subject to court created immunities. This might sway one or two conservative justices.

Usually, of course, criminal defendants plea guilty. Usually, criminal defendants are not able to plausibly make a case that the evidence against them was faked by anyone, or that the evidence which was allegedly faked changed the result at trial. Usually, even if faked evidence is present in a case, criminal defendants are not able to plausibly make a case that it was the prosecutor rather than someone else who did it, and that this happened in the pre-trial phase of a criminal case.

One way to greatly reduce the prudential risk that civil rights claims would be brought against prosecutors in cases where the prosecutors actually did nothing wrong, would be to adopt an exoneration first rule. In other word, you can't sue someone for faking evidence until you win a court ruling that you were wrongfully convicted, something that doesn't happen very often. Thus, the cause of action would not arise for statute of limitations purposes, until there was an exoneration.

In some wrongful conviction cases, moreover, the reason for an exoneration will clearly not be that you were framed, or will involve proof that someone other than a prosecutor faked evidence. Even if every exonerated person who isn't in one of these categories sues, there won't be many cases. And, as in all qualified immunity cases (qualified immunity applies to suits against all law enforcement officers other than judges and prosecutors), even then, an early evidentiary hearing and legal briefing to show that any alleged violation is immune from prosecution could be held and subject to immediate appeal.

At this point, the concern about overwhelming the criminal justice system fades away, unless, of course, prosecutors are routinely faking evidence in a way that can be discovered by criminal defendants after, but not during, trial.

An exoneration first rule doesn't seem likely to be the rule that SCOTUS will adopt in this case. But, since qualified and absolute immunity are matters of statutory interpretation that Congress has the power to change, this kind of rule could be adopted legislatively.

Indeed, one could go further and adopt a principal that any claim of absolute immunity lapses when a judicial or quasi-judicial body finds that there was either a wrongful conviction, contempt of court, or an ethical breach by the individual with absolute immunity in the case in question. So, if a judge sanctions a prosecutor for knowingly introducing false evidence in a criminal trial over which the judge presided, or an attorney ethics body finds that a prosecutor knowingly introduced false evidence in a criminal trial, or a judge in a post-conviction review process finds that someone was wrongfully convicted on the basis of faked evidence, absolute immunity would be terminated in that particular case. This happens very rarely, but these are the cases that cry out for compensation.

The other policy step that really needs to be taken is to apply the takings clause to wrongful convictions. The takings clause says that the government can't deprive you of property without due process AND just compensation. Even if you get due process, you are also entitled to just compensation. When you are found to have been wrongfully convicted, regardless of whether your initial trial was fair or not, you ought to be entitled to have the state compensate you in a just amount for depriving you of your liberty. Yes, the state will sometimes make mistakes in the criminal justice process and yet, we need a functioning criminal justice process despite its imperfection. But, that does not mean that the state should be allowed to engage in a reverse lottery, by requiring the wrongfully convicted people to bear the economic cost of those mistakes.

Indeed, if the state is on the hook in any case for paying just compensation, then the stakes in suits brought by wrongfully convicted people against prosecutors would be much lower, and one of the main parties suing former prosecutors for their wrongdoing would be the state itself seeking indemnification, in what would amount to a legal malpractice claim against the prosecutor.

Unlike police officers, former prosecutors are often in a good position to pay judgments for their past willful misconduct in suits brought by the state, because they often go on to lucrative private legal practices. Indeed, private law practices are themselves a legalized way of securing private gain by using state power. And, states have the credibility and resources to use ethics prosecutions to prove the ethical misconduct that would be a condition precedent to suing the prosecutor, and the track record necessary to show that states are unlikely to bring frivolous ethics charges against former prosecutors.

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