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Comment by nirvana | Hacker News Reader

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?

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)

Really? That is the first I heard of absolute immunity being applied to prosecutors. Where is that spelled out?

See Imbler v. Pachtman, 424 U.S. 409 (197-) and all cases since

Note, that's absolute immunity from civil liability. Criminal conduct could still be prosecuted — not that it's likely to be, of course...

Yes, you are right, but, AFAIK, it hasn't happened ;)

This is, after all, one of the reasons section 1983 was enacted.

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.

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

[2]: http://en.wikipedia.org/wiki/Duke_lacrosse_case

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).

http://scholar.google.com/scholar_case?case=5758861728040203...

Thanks, that is an interesting decision to read.

Even in (hypothetical) cases of obvious misconduct or corruption? That seems extremely unlikely.

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.

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.)

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?

Here is what I can find out:

Starting with the complicated story here: 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

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

He lost that election, and is now at his own law firm: http://www.burkelasseterllc.com/ (I'm going by 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.

That Wikipedia article appears to have been whitewashed.

So much for justice.

Maybe, but for how long?

It's wikipedia and this is HN. There have to be a few wiki admins around here who can defend it from reverts and procedural nonsense if someone slips in a few well-sourced edits.

I was a former Wikipedia admin (three times, actually), and I can tell you that you don't need to be an admin to correct articles.

Of course not, but it helps when the corrections are contentious. And this is a biography of a living person, which often involves extra drama.

There's already some stuff on the talk page about that, actually.

I think you answer the issue partly in your answer to me: discuss it on the talk page and get consensus.

Ken Hodges actually even ran for Attorney General of Georgia after doing this, and thankfully lost. Neither Hodges nor Burke were disbarred, nor is their any indication of any bar action at all. The investigator, Paulk, remains today as the chief investigator of the Dougherty County D.A.'s office. There is a documentary about much of this case, see www.DoNoHarmDoc.com . I am Charles Rehberg, the defendant in this case, and would be glad to answer any questions. I am at RehbergC at AOL dot com. Ultimately, the Supreme Court ruling in my case opens the door for even more prosecutorial abuse by expanding their immunities.

To be clear, the specific question answered in Rehberg was whether grand jury witnesses enjoyed absolute immunity. See: http://www.scotusblog.com/case-files/cases/rehberg-v-paulk/

I don't think it's particularly crazy. People focus on the cases where prosecutorial misconduct is protected by immunity, but ignore all the meritless suits and appeals prisoners file against anybody and everybody because they're in prison and have nothing else to do.

The justice system is a system. Designing systems is about making trade offs (something that should be obvious to an engineer). Any system of justice is going to put innocent people in jail, just like every drug is going to kill some people who would have otherwise survived. You have to deal with that fact the best you can to construct a workable system.

While true, it's only the specific question answered in that case because they already had immunity for things like perjury during trial itself through Briscoe v. Lahue (which applies to all witnesses), and other cases/situations.

Essentially, the rest of the conduct in Rehberg was already absolutely immune, this was the only question they could raise in a cert petition that the Supreme Court had a chance of caring enough to take.

I'm aware of the goal of justice systems, it was drilled into my head by Prof. Turley during law school. It's very hard to see how extending absolute immunity to prosecutors in most cases serves the system. It certainly doesn't cut down on nuisance lawsuits, since those get filed anyway by prisoners/etc. In any case, qualified immunity would still serve them in cases where they make bad decisions in good faith.

I wasn't implying you didn't understand the goals of the justice system, but as of late it seems that people forget we're looking at a piece of a larger system and ignore the trade-offs involved.

Fair enough. I agree there are definitely a set of tradeoffs here, and yes, sometimes you can't avoid bad results if you want a working system.

> Any system of justice is going to put innocent people in jail

And as such, should have multiple methods of finding and remedying instances where this is the case...

If a system of justice is systematically unjust; it can hardly be called a justice system.

We do have multiple such methods. Just some of the procedural protections that exist for the accused:

1) Evidence can be suppressed for numerous reasons due to police misconduct or even honest mistakes.

2) Prosecutors have an ethical obligation not to bring bad cases. They can be disbarred if they do (e.g. like the prosecutor in the Duke basketball players case).

3) Prosecutors must get a grand jury indictment to bring a case.

4) The defense can motion to the judge to exclude evidence that would unfairly prejudice the defendant.

5) The jury must convict.

6) The defendant can appeal to the Court of Appeals (in the federal system) or the equivalent.

7) The defendant can appeal to the Supreme Court or the equivalent.

8) After losing all appeals, the defendant can file one or more habeas petitions to collaterally attack the judgment.

9) The defendant can petition to set aside the judgment based on new evidence that would have changed the jury's verdict.

I'm not well-versed in criminal law--there are a raft of other ways to attack convictions. And the convicted do use these avenues. A substantial fraction of the federal dockets are habeas petitions that have no merit but must be heard as part of the process of ensuring justice.

Before you add yet another "protection" by allowing the convicted to sue prosecutors, you have to think about what it would do to the system when all the actually guilty people started filing those suits. Does it really add to "justice" more than it burdens an already strained system?

Remember: prosecutorial immunity does not keep people in prison wrongly--it keeps those people from subsequently suing prosecutors for damages. Moreover, where do you set the bar for liability? If you set the bar too low, e.g. allowing suit when you simply think the prosecutor was too harsh (as in Swartz's case), then you basically make prosecution impossible. If you set the bar very high, you end up actually punishing a very small number of people (e.g. prosecutors who manufacture evidence to get a conviction), but you still create a huge number of lawsuits from those that are justly convicted.

I don't necessarily disagree with you, but imagine we gave (2) more teeth and a greater frequency of enforcement. You don't have to put the ability to initiate such proceedings in the hands of defendants so long as the people who can do it are fully independent and properly funded. Which is not a solved problem, granted, but it could conceivably be worth investigating solutions to it.

And am I the only one who found it alarming the extent to which the plea bargaining system eviscerates almost the entirety of your list? If someone innocent pleads guilty against the expense of a trial or the risk of an order of magnitude or more higher penalties, how many of those safeguards disappear? Suppressing evidence becomes irrelevant, no jury, no appeals, what does that leave? The Grand Jury that would indict a ham sandwich?

I guess my impression was that you can not go to far down that road starting with only $60,000 in the bank unless you have a good lawyer take you on for free which is uncommon.

Meaning these options are not realistically open to large percentage of the population.

That much money would hire a competent criminal defense solo-practitioner for enough hours to work through many or most of those options. And for those who can't afford it, at the federal level public defenders are similarly credentialed as prosecutors and are by law paid the same (for obvious reasons). And there is always pro se representation with the help of legal aid clinics and prison law libraries. Prisoners with no money file huge numbers of appeals and petitions every year using these resources.

Now, Aaron Swartz did blow through a ton of money defending himself. But he also hired an entire team from one of the top white collar firms in the country. Moreover, his case was complex. He couldn't very well argue "the DNA says someone else did it!" He was a political activist engaging in civil disobedience. He was stuck arguing that while he did what the prosecution claims he did, what he did shouldn't be a crime. You can't really extrapolate from his case to argue that it's impossible to take advantage of the various procedural protections because of the expense of doing so.

While bad, it isn't as bad as it sounds, because it was "only" in front of the grand jury for an indictment. It would have been even worse if they had done it in the actual criminal trial.

I think you are saying, they still would be immune if they did that in the criminal trial?

Yes they would be. See DannyBee's response to rayiner above.

It sounds bad to me, but not at all unlikely.

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?).

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.

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.

>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.

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).

In the UK the coroner performs the inquest in a suspicious death.

Makes sense, actually. If the county sheriff abused his authority to commit murder, the coroner would know about it.

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:

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

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