HUFFINGTON
08.04.13
THE UNTOUCHABLES
other prosecutor, likely a state
attorney general. Even if state legislatures were to formally criminalize Brady violations, it seems
unlikely that many prosecutors
or state attorneys general would
pursue charges against their colleagues, and certainly not enough
to make criminal charges an effective deterrent.
The federal government could
also bring criminal civil rights
charges against prosecutors who
knowingly withhold exculpatory
evidence. But this is also exceedingly rare. Bennett Gershman,
who studies prosecutorial misconduct at Pace University Law
School, could cite only one instance in which it has happened:
the federal government’s pursuit
of charges against former federal
prosecutor Richard Convertino for
withholding exculpatory evidence
in a terrorism case he prosecuted
shortly after the Sept. 11 attacks.
Convertino was acquitted.
Suing prosecutors whose misconduct contributes to wrongful
convictions is even more difficult.
The U.S. Supreme Court ruled out
torts law as an option for plaintiffs
nearly a century ago. And in the
1976 case Imbler v. Pachtman, the
court ruled that under federal civil
rights law, prosecutors also enjoy
absolute immunity from any lawsuit over any action undertaken as a
prosecutor. The court later extended this personal immunity to cover
supervisory prosecutors who fail to
properly train their subordinates.
Now even a prosecutor who
knowingly submits false evidence in a case that results in the
wrongful conviction — or even the
execution — of an innocent person
can’t be personally sued for dam-
Prosecutors are
relied upon to police
themselves, and it
isn’t working.
ages. The only way a prosecutor
can be sued under present law is
if she were acting as an investigator in a police role — duties above
and beyond those of a prosecutor — at the time she violated the
defendant’s civil rights. But even
here, prosecutors enjoy the qualified immunity afforded to police
officers: A plaintiff must still show
a willful violation of well-established constitutional rights to
even get in front of a jury.
The 2009 Supreme Court case
Pottawattamie v. McGhee shows
how absurd the logic behind