Thursday, November 12, 2009

Prosecutors' Immunity


Prosecutorial immunity is nothing less than a dagger through the heart of justice. In recent years, we have seen more than enough evidence that prosecutors can and will knowingly send innocent people to jail, and sometimes even to death row. When through the diligence of a number of crusading defense attorneys such malfeasance became clear, laws were passed to hold such prosecutors accountable. In other words, the wrongfully convicted were given their own legal path towards justice. Now comes an effort to once again give prosecutors free reign to knowingly prosecute those they know to be innocent. Just the willingness to argue the position that there is "no freestanding constitutional right not to be framed" is evidence enough that some actually believe wrongful prosecutions are acceptable. Prosecutors cannot - MUST NOT - be given immunity for wrongful prosecutions, lest we see injustice of staggering proportions.

First and foremost in this writer's mind, is the prosecutor's temptation to convict anyone and everyone for merit's sake. Let's face it, being a prosecutor is a gateway drug....ahem....position. If one wants to be a judge, or a politician, the doorway to said profession is primarily as a prosecutor. And when they run for a judgeship, mayor, or some other office, former prosecutors love to quote their conviction rates. The higher the conviction rates, the better it appears one did his or her job, and the more dedicated to "justice" he or she appears to be. And as was seen in Chicago and other locales over the last several years, the pressure to successfully convict is, like a potent drug, very hard to resist. There have been so many instances in fact, that organizations such as the Innocence Project have come into being. Dedicated to overturning wrongful convictions, IP has found no shortage of cases to pursue. To date, the Innocence Project claims 245 wrongfully convicted prisoners freed. That’s 245 lives, not to mention children, mothers, fathers, and others, whose lives were likewise needlessly destroyed. And this is just one such organization.

And what of racial bias? Far too often there has been, particularly in the southern states, an eagerness to convict members of minority communities for crimes they did not commit. In some communities, the mere implication that a person of color has somehow wronged a white man or woman is enough to conjure up a fear laden conviction. We see evidence of this after the fact, as DNA evidence exonerates one easy target after another, yet only after victims of wrongful prosecutions lose years and sometimes decades of their lives behind bars. Minorities continue to suffer disproportionately high conviction rates and prison population rates. Minorities typically receive longer sentences for similar offences and are far more likely to be given the death penalty in qualifying cases. Either minorities are more prone to break the law, or "the system" as we like to call it, is flawed. Allowing prosecutorial immunity only compounds the shortcomings in an already troubled process.

Lastly, the difficulty in receiving a new trial is equally troubling and one of the most profound reasons behind holding prosecutors liable for wrongful convictions. In some states, and in some cases, getting a new trial borders on the impossible. Leonard Peltier is a prime example of this, where the federal court system declared in light of new evidence that he "might have" been found innocent had this new evidence been available at the time of his conviction. "Might have" isn't good enough, as the federal standard for a new trial is that one "would have" been found innocent with said information at the time of trial. So the difference between "might have" and "would have" is enough to keep Mr. Peltier in jail for 34 years running. Likewise, a review of the Texas justice system within the last decade found it "barely constitutional". Part of this finding was due to the difficulty in obtaining a new trial once convicted. Many states have rules that limit when new evidence can be admitted. Quite literally a piece of evidence exonerating a convicted person may not be admitted and therefore may be irrelevant if it becomes known past a predetermined number of days or years after conviction. In other words, it can literally be too late to prove you are innocent. Justice, it seems has a shelf life and can expire.

No American should live with the rational fear of a wrongful conviction. In the event it does happen, a victim of such an experience must have a round trip ticket back to justice. The only way we can properly assuage the wrongfully convicted, and protect the not-yet wrongfully convicted, is to be able to hold the offending prosecutors accountable. Otherwise, losing our freedom could be like shooting fish in a barrel, with all of us just waiting to get plugged.

TO READ NPR'S 11.4.09 ARTICLE"High Court Weighs Prosecutors Immunity"

Click here to read

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