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Bad prosecutors should be held accountable

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The U.S. Supreme Court is seen Tuesday, June 30, 2020 in Washington.

Associated Press

For weeks, calls for police reform have dominated headlines. What were once fringe reform issues rapidly became legislative priorities among our local and federal leaders. Halting military transfers, busting police unions, ending no-knock warrants and abolishing qualified immunity, among others, have become some of the most talked-about calls to action in the past month. But so long as the national conversation is fixed on criminal justice and policing issues, there’s another reform that should get some attention: the need to abolish prosecutorial immunity.

Often understood as qualified immunity for state prosecutors, prosecutorial immunity serves as a legal protection against civil liability. Thanks to a 1975 Supreme Court ruling, state prosecutors have absolute immunity for all actions performed in their prosecutorial role. They can’t be held liable for their own misconduct, not even if they use fraudulent evidence or withhold exculpatory evidence to secure a conviction (otherwise known as a Brady violation) — something Louisiana’s court systems are unfortunately familiar with. 

In other words, state prosecutors can intentionally break the law, harming innocents along the way, and get off without being held accountable.

How does this work? 

Consider an example out of New Orleans. Charged with armed robbery and the murder of a hotel executive, John Thompson maintained his innocence, but the prosecution secured a conviction that put him on death row. For 14 years, Thompson languished in prison while he and his attorneys tried to appeal the decision.

A month before he was set to be executed, a private investigator uncovered exculpatory evidence that the Orleans Parish District Attorney’s Office had withheld for over a decade — a blood sample that proved Thompson was innocent. Not only was this evidence not disclosed to the defense, it was also removed from evidence and destroyed by one of the prosecutors on the case.

In 2003, nearly two decades after being wrongfully charged and convicted, Thompson was acquitted. Of course, given prosecutorial immunity, Thompson could not hold the individuals responsible for these egregious actions accountable. Instead, he sued the District Attorney’s office for civil rights violations through what’s known as a Monell claim: a civil suit that accuses the entire department of repeated widespread misconduct.

He was awarded $14 million in damages, but a 5-4 Supreme Court decision stripped the money away, claiming there was little evidence of widespread misconduct. The controversial decision was reached due in large part to the fact that under a Monell claim — the only way to attempt to hold a state prosecutorial entity accountable — you have to show there was repeated widespread misconduct in nearly identical circumstances. This is eerily similar to qualified immunity’s absurd standards requiring plaintiffs to prove their rights were violated in a way identical to a previous case. 

In all, none of the prosecutors responsible for Thompson’s mistrial were ever punished.

Another more recent example comes from California. In The People (of California) v. Efrain Velasco-Palacios, then Kern County prosecutor Robert Murray was well on his way to securing a plea deal for the state but decided he wasn’t satisfied with the terms of the pending sentence. Murray entered a falsified transcript of a defendant’s confession into evidence in an effort to get a harsher conviction.  

Murray added two sentences to the defendant’s interrogation transcript that made it sound like he was confessing to a more harrowing crime than the one for which he was being charged. Using this leverage, Murray threatened to pursue a lifelong prison sentence. Once the defense counsel began to encourage a plea deal, however, they requested the original tape for viewing. He then had to admit to his perjurious falsification, which he described as a “joke.”

Obviously, there was nothing funny about it, and the case was dismissed, but Murray was defended by then-California AG Kamala Harris (whose own conduct has raised questions of ethics).

Murray was never punished by the courts for his misconduct. He’s still practicing law today.

These are just two examples of what has become an epidemic of prosecutorial misconduct in the country. In the Brooklyn DA’s office alone, there found to be over 20 such cases. And with no accountability, there is no incentive for prosecutorial culture to change. 

Although states have tried to get around this absolute immunity through other means such as probing panels to put a check on prosecutorial misconduct, they have ultimately been shut down. Moreover, merely abolishing qualified immunity wouldn’t have helped either of the individuals in these cases. 

If we’re serious about cleaning up systemic rot in our criminal justice system, individual prosecutors need to be held accountable for their actions, too — and that starts with abolishing prosecutorial immunity.

Anthony DiMauro is a Young Voices contributor based in New York. His work has appeared in The Orange County Register, The National Interest and Real Clear. You can follow him on Twitter @AnthonyMDiMauro.