Undoubtedly some will argue that there is a difference between former prosecutors who serve as television personalities and current prosecutors who actually try the cases. But not so long ago prosecutorial zealots were rabidly seizing on the “day care/child molestation” hysteria sweeping across America. Scores of innocent people were sent to prison on the word of corrupt cops crusading to find “satanic” cults that didn’t exist, inept, poorly trained interviewers and therapists who incessantly used leading and suggestive questions, and children whose testimony was frequently coached or coerced.
Unfortunately the potential for abuse is not diminished even when prosecutors are not crusaders. Most prosecutors are elected officials, and have to appease the voting public. Thus there is a strong incentive to win “high profile” cases—crimes that are widely publicized and/or cause fear, panic or outrage in the community—even if it means taking a few unethical, and possibly illegal, “shortcuts” to do it.
The inherent difficulty with the legal system is that oftentimes those who work in it erroneously view it as a sporting event. But a defense attorney’s ability to free a guilty person can hardly be called a “victory” for the victims or society. Conversely, a prosecutor who convicts an innocent person may have “won” the case, but this “victory” means that the guilty are still walking the streets.
Due to prosecutorial misconduct and abuses, the courts have made some dents in the immunity armor. Prosecutors acting in “investigative” roles are now only given “qualified immunity”—the same type that is available to police officers. Prosecutors also lose their absolute immunity protection if they knowingly lie in the “charging document,” which accuses a person of committing a crime.
Now the United States Supreme Court is examining another immunity question: Whether prosecutors acting in a “supervisory capacity” can be held liable for the courtroom actions of their subordinates, and/or the policies and practices of their offices.
The case in question, Van de Kamp and Livesay v. Goldstein, specifically deals with the use of informants, one of the most controversial areas of criminal justice.
Police and prosecutors argue that informants are an indispensable part of law enforcement, particularly since the rituals often required to join criminal gangs—being vouched for by a current gang member, being required to submit to a physical beating to demonstrate loyalty and commitment, or being compelled to commit a violent crime—make infiltration by undercover police officers difficult, if not impossible.
To be continued…
David R. Hoffman, Legal Editor of Pravda.Ru
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