5 ms·

I've just been made aware that there is evidence that someone has been trying to steal property worth more than $1M! We need a prosecutor to draw up charges...

by nirvana 14y ago

I've just been made aware that there is evidence that someone has been trying to steal property worth more than $1M! We need a prosecutor to draw up charges...oh, wait. Who prosecutes the prosecutors?

DannyBee 14y ago
It wouldn't matter, prosecutors have absolute immunity, instead of the qualified immunity a government official normally gets while doing their job. If you want to start to change the way they act, start there. Edit: Since a lot of folks seem to not be familiar with terminology, things like "absolute immunity" or "qualified immunity" refer to civil liability, not criminal. At least in the US, the main method of policing government civil rights violations is through civil lawsuits for damages, not through officials being arrested. (This of course, is also a larger issue, but a more difficult one :P)
- ChuckMcM 14y ago
  Really? That is the first I heard of absolute immunity being applied to prosecutors. Where is that spelled out?
  - DannyBee 14y ago
    See Imbler v. Pachtman, 424 U.S. 409 (197-) and all cases since
    - rosser 14y ago
      Note, that's absolute immunity from civil liability. Criminal conduct could still be prosecuted — not that it's likely to be, of course...
      - DannyBee 14y ago
        Yes, you are right, but, AFAIK, it hasn't happened ;) This is, after all, one of the reasons section 1983 was enacted.
      - jessaustin 14y ago
        A prosecutor's criminal conduct in the context of prosecuting a case would never be prosecuted by other prosecutors. It would set a bad "precedent". If it were shockingly egregious criminal conduct while prosecuting a universally beloved public figure (like Mr. Rogers or Joe Montana or similar), you might see criminal charges in relation to impeachment proceedings undertaken by a legislature, but although that is possible it isn't likely. Now if a prosecutor did something horrible to children or copyrighted materials or something he might be prosecuted criminally for that, only if it had nothing to do with his work.
      - mindcrime 14y ago
        That's probably mostly true, but it's worth pointing out that some prosecutors (if not federal prosecutors, to be fair) are sometimes held accountable for their actions. Mike Nifong[1] the infamous "Duke Lacrosse"[2] prosecutor, was disbarred, removed from office as DA, charged with various ethics violations and was even held in contempt of court at one point, and spent one day in jail (and paid a $500 fine) as a result. Unfortunately it's all too rare for prosecutors to suffer any consequences for what they do, and it takes a really egregious case of misconduct like this (as well as a group of well-heeled and well connected defendants) to prompt such a thing. [1]: http://en.wikipedia.org/wiki/Mike_Nifong http://en.wikipedia.org/wiki/Mike_Nifong [2]: http://en.wikipedia.org/wiki/Duke_lacrosse_case http://en.wikipedia.org/wiki/Duke_lacrosse_case
  - rosser 14y ago
    A brief bit of searching indicates that prosecutors do indeed have absolute immunity from civil liability for their official actions during a trial (see Imbler v. Pachtman).
  - tjic 14y ago
    http://scholar.google.com/scholar_case?case=5758861728040203406&q=Imbler+v.+Pachtman,+424+U.S.+409+(197-)&hl=en&as_sdt=2,22&as_vis=1 http://scholar.google.com/scholar_case?case=5758861728040203...
    - ChuckMcM 14y ago
      Thanks, that is an interesting decision to read.
- TillE 14y ago
  Even in (hypothetical) cases of obvious misconduct or corruption? That seems extremely unlikely.
  - DannyBee 14y ago
    Yes. I posted the main case that starts this line in the comment to Chuck, but also see Rehberg v. Paulk, 132 S. Ct. 1497 (2012). It's worse than you think. In Rehberg, the accusation was the chief investigator for the DA's office simply presented made up testimony in front of the grand jury, knowing it was false, and the prosecutor knew it was false as well when questioning him/presenting it. They did this 3 times, leading to indictments against folks that were, thankfully, later dismissed by judges. It was also alleged that they both had conspired, pre-indictment, to make up and present this false testimony to the grand jury. Holding: Both are entitled to absolute immunity. This particular case seems more about grand juries, until you realize what was alleged and who was testifying.
    - rosser 14y ago
      The State has had incredibly broad latitude during Grand Jury proceedings since well before these cases. They've also had significantly less freedom to engage in shenanigans in other circumstances, AIUI. (I'll defer to someone with specific knowledge to the contrary, of course. I'm a technologist, not a lawyer.)
    - defen 14y ago
      Regarding the Rehberg v. Paulk case - is that the end of the story? Did the chief investigator or prosecutor suffer any consequences for their actions? How could a prosecutor do that and not get disbarred?
      - DannyBee 14y ago
        Here is what I can find out: Starting with the complicated story here: http://caselaw.findlaw.com/us-11th-circuit/1531644.html http://caselaw.findlaw.com/us-11th-circuit/1531644.html Ken Hodges is now a partner in a law firm (Ashe, Rafuse & Hill, LLP). I can find nothing that says he was disciplined: http://en.wikipedia.org/wiki/Ken_Hodges http://en.wikipedia.org/wiki/Ken_Hodges Kelly Burke resigned, but not because of disgrace, but to run for election elsewhere: http://www.macon.com/2010/02/24/1035453/burke-to-resign.html http://www.macon.com/2010/02/24/1035453/burke-to-resign.html He lost that election, and is now at his own law firm: http://www.burkelasseterllc.com/ http://www.burkelasseterllc.com/ (I'm going by http://www.martindale.com/Mr-Kelly-R-Burke/888392-lawyer.htm http://www.martindale.com/Mr-Kelly-R-Burke/888392-lawyer.htm, which points to this) I can't find out all the details of what happened to James Paulk, but if he was charged, it doesn't show up in the public records I have access to. FWIW: Not all prosecutors are like this. I clerked for a former state's attorney who was a judge on the maryland court of special appeals. I have not the slightest doubt that he would have arrested, charged, and prosecuted all three of these men if something like this ever happened in his state.
xxpor 14y ago
Not exactly the same, but in Ohio the only person not from the state with the authority to arrest the county sheriff is the county coroner (how did that come about?).
- voidlogic 14y ago
  It seems strange, but this policy seems pretty pragmatic to me: Here you have two elected county-level officials who often work together and thus are familiar with each-others business, but are not subordinates to one another. Basically peers.
- scarmig 14y ago
  It makes some sense: the coroner is an elected official (why the hell do we elect coroners?) who has some independence from the sheriff. Other officials who are ostensibly higher level than the sheriff probably depend on his good graces as much as the sheriff does on them.
  - xxpor 14y ago
    >why the hell do we elect coroners? I've wondered that as well. What are even the issues in a coroner election? Seems like a pretty objective job to me. The other poster makes the point about the coroner and sheriff being peers. That makes sense.
  - Turing_Machine 14y ago
    The coroner and the medical examiner have different functions in most modern jurisdictions. The coroner is in charge of the legal stuff, the medical examiner is in charge of stuff like determining the actual cause of death. There's a "coroner's jury" in some jurisdictions that hears evidence and decides whether the death was criminal, accidental, natural causes, etc. The medical examiner would (e.g.) determine that the person died from a gunshot wound. The coroner (or coroner's jury) would decide whether a crime was involved (rather than suicide, accident, lawfully shot by the cops or in self-defense by someone else).
    - 14y ago
jforman 14y ago
Nobody. They have immunity. Change comes from the legislature.
tomjen3 14y ago
In large groups, revolutionaries -- like the founding fathers: >He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. >He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance >He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures >For Quartering large bodies of armed troops among us:For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States >For depriving us in many cases, of the benefits of Trial by Jury:

by nirvana 14y ago

DannyBee 14y ago

It wouldn't matter, prosecutors have absolute immunity, instead of the qualified immunity a government official normally gets while doing their job. If you want to start to change the way they act, start there. Edit: Since a lot of folks seem to not be familiar with terminology, things like "absolute immunity" or "qualified immunity" refer to civil liability, not criminal. At least in the US, the main method of policing government civil rights violations is through civil lawsuits for damages, not through officials being arrested. (This of course, is also a larger issue, but a more difficult one :P)

ChuckMcM 14y ago
Really? That is the first I heard of absolute immunity being applied to prosecutors. Where is that spelled out?
- DannyBee 14y ago
  See Imbler v. Pachtman, 424 U.S. 409 (197-) and all cases since
  - rosser 14y ago
    Note, that's absolute immunity from civil liability. Criminal conduct could still be prosecuted — not that it's likely to be, of course...
    - DannyBee 14y ago
      Yes, you are right, but, AFAIK, it hasn't happened ;) This is, after all, one of the reasons section 1983 was enacted.
    - jessaustin 14y ago
      A prosecutor's criminal conduct in the context of prosecuting a case would never be prosecuted by other prosecutors. It would set a bad "precedent". If it were shockingly egregious criminal conduct while prosecuting a universally beloved public figure (like Mr. Rogers or Joe Montana or similar), you might see criminal charges in relation to impeachment proceedings undertaken by a legislature, but although that is possible it isn't likely. Now if a prosecutor did something horrible to children or copyrighted materials or something he might be prosecuted criminally for that, only if it had nothing to do with his work.
    - mindcrime 14y ago
      That's probably mostly true, but it's worth pointing out that some prosecutors (if not federal prosecutors, to be fair) are sometimes held accountable for their actions. Mike Nifong[1] the infamous "Duke Lacrosse"[2] prosecutor, was disbarred, removed from office as DA, charged with various ethics violations and was even held in contempt of court at one point, and spent one day in jail (and paid a $500 fine) as a result. Unfortunately it's all too rare for prosecutors to suffer any consequences for what they do, and it takes a really egregious case of misconduct like this (as well as a group of well-heeled and well connected defendants) to prompt such a thing. [1]: http://en.wikipedia.org/wiki/Mike_Nifong http://en.wikipedia.org/wiki/Mike_Nifong [2]: http://en.wikipedia.org/wiki/Duke_lacrosse_case http://en.wikipedia.org/wiki/Duke_lacrosse_case
- rosser 14y ago
  A brief bit of searching indicates that prosecutors do indeed have absolute immunity from civil liability for their official actions during a trial (see Imbler v. Pachtman).
- tjic 14y ago
  http://scholar.google.com/scholar_case?case=5758861728040203406&q=Imbler+v.+Pachtman,+424+U.S.+409+(197-)&hl=en&as_sdt=2,22&as_vis=1 http://scholar.google.com/scholar_case?case=5758861728040203...
  - ChuckMcM 14y ago
    Thanks, that is an interesting decision to read.
TillE 14y ago
Even in (hypothetical) cases of obvious misconduct or corruption? That seems extremely unlikely.
- DannyBee 14y ago
  Yes. I posted the main case that starts this line in the comment to Chuck, but also see Rehberg v. Paulk, 132 S. Ct. 1497 (2012). It's worse than you think. In Rehberg, the accusation was the chief investigator for the DA's office simply presented made up testimony in front of the grand jury, knowing it was false, and the prosecutor knew it was false as well when questioning him/presenting it. They did this 3 times, leading to indictments against folks that were, thankfully, later dismissed by judges. It was also alleged that they both had conspired, pre-indictment, to make up and present this false testimony to the grand jury. Holding: Both are entitled to absolute immunity. This particular case seems more about grand juries, until you realize what was alleged and who was testifying.
  - rosser 14y ago
    The State has had incredibly broad latitude during Grand Jury proceedings since well before these cases. They've also had significantly less freedom to engage in shenanigans in other circumstances, AIUI. (I'll defer to someone with specific knowledge to the contrary, of course. I'm a technologist, not a lawyer.)
  - defen 14y ago
    Regarding the Rehberg v. Paulk case - is that the end of the story? Did the chief investigator or prosecutor suffer any consequences for their actions? How could a prosecutor do that and not get disbarred?
    - DannyBee 14y ago
      Here is what I can find out: Starting with the complicated story here: http://caselaw.findlaw.com/us-11th-circuit/1531644.html http://caselaw.findlaw.com/us-11th-circuit/1531644.html Ken Hodges is now a partner in a law firm (Ashe, Rafuse & Hill, LLP). I can find nothing that says he was disciplined: http://en.wikipedia.org/wiki/Ken_Hodges http://en.wikipedia.org/wiki/Ken_Hodges Kelly Burke resigned, but not because of disgrace, but to run for election elsewhere: http://www.macon.com/2010/02/24/1035453/burke-to-resign.html http://www.macon.com/2010/02/24/1035453/burke-to-resign.html He lost that election, and is now at his own law firm: http://www.burkelasseterllc.com/ http://www.burkelasseterllc.com/ (I'm going by http://www.martindale.com/Mr-Kelly-R-Burke/888392-lawyer.htm http://www.martindale.com/Mr-Kelly-R-Burke/888392-lawyer.htm, which points to this) I can't find out all the details of what happened to James Paulk, but if he was charged, it doesn't show up in the public records I have access to. FWIW: Not all prosecutors are like this. I clerked for a former state's attorney who was a judge on the maryland court of special appeals. I have not the slightest doubt that he would have arrested, charged, and prosecuted all three of these men if something like this ever happened in his state.

xxpor 14y ago

Not exactly the same, but in Ohio the only person not from the state with the authority to arrest the county sheriff is the county coroner (how did that come about?).

voidlogic 14y ago
It seems strange, but this policy seems pretty pragmatic to me: Here you have two elected county-level officials who often work together and thus are familiar with each-others business, but are not subordinates to one another. Basically peers.
scarmig 14y ago
It makes some sense: the coroner is an elected official (why the hell do we elect coroners?) who has some independence from the sheriff. Other officials who are ostensibly higher level than the sheriff probably depend on his good graces as much as the sheriff does on them.
- xxpor 14y ago
  >why the hell do we elect coroners? I've wondered that as well. What are even the issues in a coroner election? Seems like a pretty objective job to me. The other poster makes the point about the coroner and sheriff being peers. That makes sense.
- Turing_Machine 14y ago
  The coroner and the medical examiner have different functions in most modern jurisdictions. The coroner is in charge of the legal stuff, the medical examiner is in charge of stuff like determining the actual cause of death. There's a "coroner's jury" in some jurisdictions that hears evidence and decides whether the death was criminal, accidental, natural causes, etc. The medical examiner would (e.g.) determine that the person died from a gunshot wound. The coroner (or coroner's jury) would decide whether a crime was involved (rather than suicide, accident, lawfully shot by the cops or in self-defense by someone else).
  - 14y ago

jforman 14y ago

Nobody. They have immunity. Change comes from the legislature.

tomjen3 14y ago

In large groups, revolutionaries -- like the founding fathers: >He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. >He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance >He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures >For Quartering large bodies of armed troops among us:For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States >For depriving us in many cases, of the benefits of Trial by Jury: