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The theory in support of absolute immunity holds that if prosecutors can be subjected to lawsuits for the decisions they make, they may start second-guessing themselves and become reluctant to file charges except in only the most open-and-shut cases. There’s also a fear that opening prosecutors up to lawsuits could bring a wave of frivolous filings that clog up the court system. Or, as the Supreme Court put it in a 2009 case, the policy is “a balance of evils” and it is “better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”

There’s some merit to both arguments, but there are also some convincing arguments against them. For example, several states have open paths for state lawsuits for damages caused by prosecutorial misconduct, and there’s little evidence that those states have been opened to a barrage of frivolous suits. As for the fear of retaliation, in nearly all cases, public officials found liable in civil cases don’t pay the damages themselves. The damages are paid by the city or state that employs them — which is to say taxpayers.

The main problem with absolute immunity for prosecutors is the incentives it creates. The problems with shielding a public servant in whom we grant the enormous powers granted to prosecutors should be pretty self-evident. Now consider that nearly every professional incentive (reelection, promotions, election to higher office, high-paying jobs at white-shoe law firms) points prosecutors toward procuring as many convictions as possible, and that courts and bar organizations are notoriously lax at sanctioning misconduct. You get a system that not only fails to sanction bad behavior, but also often rewards it. If the old Lord Acton axiom is true — that power corrupts, and absolute power corrupts absolutely — enormous power with no accountability can be enormously destructive.

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Over the years, the U.S. Supreme Court has carved out one limited exception to absolute immunity: When prosecutors act as investigators — that is, when they engage in activities more often associated with police — they may lose some of their immunity, at which point they’re only protected by the doctrine of qualified immunity given to cops and other public officials. (That’s still a tough standard for a plaintiff to meet.)

But even that small opening for lawsuits isn’t entirely certain. In the 1993 case Buckley v. Fitzsimmons, the prosecutor accused of manufacturing evidence while aiding with the police investigation wasn’t the same prosecutor who tried the case. The 7th Circuit ruled that the actual injury incurred by the defendant as a result of the misconduct occurred at trial, not during the investigation. Because the prosecutor at trial was acting in his official capacity as a prosecutor, he was protected by absolute immunity. The U.S. Supreme Court took the case on appeal, but only the claim against the prosecutor who actually manufactured the evidence. The court ruled that prosecutor was only entitled to qualified immunity and that his actions were egregious enough that qualified immunity couldn’t protect him.

Another prosecutorial immunity case came along in 2009, Pottawattamie v. McGhee. In that case, prosecutors were accused of manufacturing evidence that resulted in the convictions and long-term imprisonment of two men. The attorneys for the prosecutors accused of misconduct (along with the U.S. Department of Justice and most state attorneys general) seized on the ambiguity in Buckley. They argued that the actual harm done to a defendant by misconduct committed during an investigation only attatches when that evidence is introduced against him at trial. And once the case makes it to trial, they argued, the prosecutor is acting as a prosecutor, not an investigator, and is therefore protected by absolute immunity.

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It was an absurd argument that would have essentially rendered the “investigation” exception meaningless. The only time a prosecutor could be held liable for manufacturing evidence would be if a different prosecutor then used that evidence at trial. Nevertheless, during oral arguments, it seemed to have some resonance with at least a few of the Supreme Court justices. But most of the justices seemed skeptical, and it appeared as if the court would affirm the “investigation” exception — prosecutors who knowingly manufacture evidence that results in the conviction of an innocent person shouldn’t be shielded from lawsuits. (Read the clause after the dash again. The idea that this would even be up for discussion shows just how far down the rabbit hole we’ve fallen.)

The defendants and their supporters apparently sensed the justices’ skepticism, too. They settled with the plaintiffs after oral arguments but before the court issued a decision. Because of the settlement, the court considered the case moot, and dismissed it without a ruling.

That brings us to Fields v. Wharrie, the recent decision from the 7th Circuit. The case itself is a gory mess of injustice, including a trial judge who took a bribe from Fields’ co-defendant. But, for the purposes of this discussion, Fields discovered that prosecutors had knowingly coerced witnesses into giving false testimony, which resulted in his conviction and 17 years in prison before he was acquitted at a second trial. Writing for the majority, Judge Richard Posner makes it clear that Buckley was a special circumstance in which one prosecutor replaced another before trial, and that it should not be used to close the investigation exception to absolute immunity:

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. . . the act that causes an injury need not be simultaneous with the injury (indeed it will never be exactly simultaneous) for the actor to be liable. Think of products liability. The defect that caused a pipe to burst and flood your home may have been present when the pipe was manufactured years earlier. The manufacturer would be liable despite the lapse of time. He who creates the defect is responsible for the injury that the defect foreseeably causes later. Nor is the only harm that resulting from the conviction and the sentence. In the present case . . . the fabrication of evidence harmed the defendant before and not just during the trial, because it was used to help indict him.

Posner then explains the logic behind his own court’s ruling in Buckley 20 years ago:

But consider a case in which a prosecutor, whom we’ll call A, acting in a purely investigative role, fabricates evidence against a suspect, but the prosecution of the suspect is handled by a different prosecutor, B, who though knowing that the evidence was fabricated decides to use it. And suppose A has second thoughts about what he did, and tells B not to use the evidence. But B goes ahead and uses it. It can be argued that A should not be regarded as having caused the use of the evidence at trial. . . . B is protected from suit by his absolute prosecutorial immunity, thus leaving the victim of the fabricated evidence without a complete damages remedy. He would have a partial remedy, against A, if A’s fabrication had inflicted harm against him before his trial, as by causing him to be indicted. . . .

But Posner then explains why the ruling in Buckley is limited that case’s unusual circumstances:

But this is not such a case because Wharrie, the alleged fabricator of evidence against Fields, was also one of his prosecutors at trial. A prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a “license to lawless conduct,” which the Supreme Court has said that qualified immunity is not to do. Wharrie’s interpretation of our decision in Buckley would place that decision in conflict with the Supreme Court’s Buckley decision, by giving absolute immunity to prosecutor‐investigators who having fabricated evidence make sure that the evidence is used to convict the innocent victim of the fabrication. . . . Wharrie is asking us to bless a breathtaking injustice. Prosecutor, acting pre‐prosecution as an investigator, fabricates evidence and introduces the fabricated evidence at trial. The innocent victim of the fabrication is prosecuted and convicted and sent to prison for 17 years. On Wharrie’s interpretation of our decision in Buckley, the prosecutor is insulated from liability because his fabrication did not cause the defendant’s conviction, and by the time that same prosecutor got around to violating the defendant’s right he was absolutely immunized. So: grave misconduct by the government’s lawyer at a time where he was not shielded by absolute immunity; no remedy whatsoever for the hapless victim.

During the oral arguments in Pottawattamie, the Supreme Court’s more conservative justices seemed hostile to the idea of limiting prosecutorial immunity, particularly Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. (Interestingly, the attorney they were challenging was Paul Clement, a U.S. solicitor general under President George W. Bush.) It’s notable then that this opinion was written by Posner, perhaps the most well-known conservative judge not on the Supreme Court. Another conservative federal judge, Alex Kozinski, also recently made a splash with an opinion about prosecutorial misconduct. But there was a dissent in the case, written by Diane Sykes, a George W. Bush appointee, and a member of the conservative Federalist Society. So there seems to be a schism in the conservative legal community over this issue.