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Friday, November 6, 2009

Prosecutorial Wrongdoing and the Supreme Court

This past Wednesday the Supreme Court (hereinafter, "SCOTUS" so we can all be hip and overuse acronyms) heard a case involving serious allegations of prosecutorial misconduct, i.e., prosecutors hiding exculpatory evidence.    Please read this amicus brief for respondentsthe respondents' brief and the petitioners' reply brief (which includes a section caption that reads "There is No Freestanding Constitutional Right Not To Be Framed.") (Other briefs in the case are available at http://www.abanet.org/).  

I urge you to read the transcript of the oral arguments, including Supreme Court Chief Justice John Roberts invoking the concern of a chilling effect upon prosecutors (see page 35 of the transcript).

The real chilling effect here is the concept (which some petitioners and amici advance) that no constitutional deprivation occurs until there is a use of fabricated "evidence" at trial.    Under this dismaying argument, the use of knowingly false evidence (or perjurious evidence or the suborning of perjury) during the pre-indictment "investigative" phase to threaten your liberty and wrongfully (but not officially) accuse you would be constitutionally permissible! 

I contend that some of the danger to our liberty arises well before any trial.   You can be charged with a crime, and if you are denied or cannot make bail, you can sit in jail for months...or years...waiting for trial.   Under the petitioners' arguments, a wayward prosecutor can use knowingly false evidence to throw and keep you behind bars -- before and without a trial -- while enjoying immunity...and it's constitutional because you haven't had a trial yet at which the false evidence has not been used, so under the argument your due process rights haven't yet been violated.    This is seriously in error.

If the Supreme Court sets a standard that the use of pre-trial bogus "evidence" enjoys immunity, it will only encourage more misconduct.   Such a position can create a dangerous "perfect storm" when the elements of personal (or political) career ambition and prosecutorial malfeasance (or malevolence) combine.    Should the Supreme Court rule for the petitioners, there will be a present danger of vastly increased state power and of vastly diminished constitutional protections.

Solutions?  Perhaps we can increase the budgets of the various district attorney's offices and USAOs.   This will help eliminate the excuses of strained resources, overworked prosecutors and investigators, and other problems.   Reducing these strains should, theoretically at least, help law enforcers do their jobs properly.    At the very least, this is a better use of taxpayer money than funding "Cash for Clunkers" or the new Fannie Mae program to help defaulting homeowners stay in the homes that previously were "owned" by them (but I digress...that's for another article).

Another solution may be to make prosecutor positions non-elected positions.   Remove the political vagaries and the idiocy of the "street" from the justice system.   (For the same reasons, judges should never be elected.) 

One final note:   Please be encouraged by the fact that, on issues involving civil rights and basic constitutional principles, the supposed divisions among "right" and "left" wing are absent.   The amicus brief I linked to above is signed by both the American Civil Liberties Union and the Cato Institute.

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