Wednesday, November 11, 2009

Prosecutorial Immunity? Quit Your Job Or Stand Trial?

I am a realist and I read the Supreme Court's opinions. Prosecutorial immunity is virtually impenentrable in cases arising under 42 U.S. Section 1983. But I am also a true believer in the rule of law, and this belief dies hard. How is it that the courts have declared off-limits virtually everything a prosecutor does?

The case law is depressing. Prosecutors acting within their adversarial function are absolutely immune from suit. Thus, merely initiating a criminal proceeding against a defendant is immune if the prosecution later turns out to be ill-founded. Burns v. Reed, 500 U.S. 478 (1991). Appearing in court to present evidence is also subject to immunity. Kalina v. Fletcher, 522 U.S. 118 (1997). Indeed, failing to train prosecutors for failure to do their constitutionally required duties is also covered by the same immunity. Van de Kamp v. Goldstein, 129 S.Ct. 855 (2009). It is expected that the Court will decide in the Pottawattamie County case, argued last week, that prosecutorial fabrication of evidence to win the conviction of an innocent man is also immune.

Of course, there are limits. A prosecutor who speaks improvidently to the press might lose his immunity. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). So might a prosecutor who serves as a complaining witness. Kalina.

Searching for a center of gravity in these cases that permits an assessment of just what falls within the orbit of the immunity yields the following conclusion: A prosecutor bringing an action, making decisions about evidence, charges and disposition of a case is immune from suit. But the advocacy function must be tethered to what the state can seek as it enforces the penal code. Bring an action for murder and prosecute in a courtroom by means fair or foul: immunity is granted. Stand on the courthouse steps and sully a man's name: not immune. Not everything a prosecutor does is immune, only those things integrally related to his role as a minister of justice.

Query: Does this immunity extend to a prosecutor's decision to require remedies outside the jurisidiction of the criminal courts as a condition of resolving a case short of trial?

Consider the following fact pattern: A police officer is charged with a petty crime. The allegation is one involving dishonesty, however the conduct arose while the officer was off-duty. The police chief and senior administrators want the police officer fired. One motive for the desire to fire is to silence the officer, who is pressing a claim that police brass covered up evidence of an administration favorite's drunk driving. The police chief makes clear to the prosecutor that any plea deal involving the police officer must include the police officer's resignation from the department. The prosecutor offers in effect to drop the charges if the police officer resigns from his job. Is the prosecutorial immune in this case?

A powerful argument can be made that the prosecutor has shed his immunity. While making plea offers and deciding how to resolve a case is part of his core prosecutorial function, conditioning a plea on a remedy outside the scope of the criminal law's sanction seems like over-reaching. If convicted, the police officer could be incarcerated or fined; he might also be placed on probation. While a probationer, the officer could contest the reasonableness of any terms of probation. No criminal law grants the state the right to force a person from his job, however. That is an issue covered by collective bargaining agreements and the law of employment, not criminal law. Isn't forcing a man to quit his job to obtain a favorable outcome of his case as unrelated to core advocacy functions as standing on the courthouse steps and calling a man a liar?

I am on the cusp of bringing a lawsuit raising these very claims, and as I research the prosecutorial immunity issues, I am bewildered. Anyone out there have any thoughts on this? The law seems to be moving in the direction of shielding virtually anything done in a courtroom. Do these facts fall inside or outside the ambit of prosecutorial immunity?