Liberty Commentary

What “Absolute Immunity” Actually Means

from The Agitator

People like Radley Balko and others have directed a lot of criticism toward the U.S. Supreme Court for its rulings on “absolute immunity” for prosecutors and judges, and in my view, that criticism is valid. The various SCOTUS rulings, made supposedly to protect these officers of the court from others who supposedly abuse the system, actually create even worse conditions in which conduct occurs. Nature abhors a vacuum, and SCOTUS has created the Mother of All Vacuums by giving blanket protection to their own.

The high court has justified its rulings by claiming that although individuals that have been wronged cannot receive redress from the people who wronged them, those alleged miscreants still can be punished by the system, including the various state bars and also can face criminal charges. While all of that sounds good, the reality bumps into the simple fact that government employees tend to protect their own.

After the Tonya Craft acquittal, I spoke to an official of the Georgia State Bar about the conduct of prosecutors Len Gregor and Christopher Arnt. In a letter to the bar, I outlined specifically how these two men repeatedly violated the Standards of Conduct for prosecutors laid out in the bar’s regulations. The official, however, told me that she really didn’t care how they acted because, in her view, “They were just doing their jobs.”

After I asked her if suborning perjury, lying to jurors and the public, and hiding exculpatory evidence fell into the “doing their jobs” category, she hung up. Nor was the Georgia State Bar the only government agency that has been unresponsive. The FBI and the Georgia Bureau of Investigation were given mountains of evidence about prosecutorial and judicial misconduct that crossed the line into criminal behavior, yet they, along with the attorney general of Georgia, ignored everything.

This hardly is unusual. In fact, it is the norm. Lawsuits are the only means of redress that can be initiated by private individuals that are not employed by the justice system, so by blocking this one avenue of justice the SCOTUS essentially has blocked justice itself. Thus, in order for any kind of justice to prevail against prosecutorial and judicial wrongdoing, the very peers and friends of those who violate the law and standards of conduct are then expected to initiate proceedings against their peers and friends. That just does not happen.

When Michael Nifong was disbarred in 2007 for his obvious criminal — yes, criminal — actions in pursuing the charges in the Duke Lacrosse Case, people involved in the legal system prattled on about how such procedures were unprecedented and even amazing. Yet, Nifong got off easy. He lost his law license and his job, but still receives a large pension from North Carolina taxpayers. He also has his freedom. One should never forget that he and friendly judges in Durham had created and maintained an atmosphere in which three young men faced 30 years apiece in prison for something that Nifong and his peers knew never had occurred.

The sad thing is that it was extraordinarily easy for Nifong to gain indictments, and had not the North Carolina State Bar done what it never had done before — intervene in an ongoing criminal case (and the charges passed by just one vote) — Nifong would have been able to bring this farce to trial. Furthermore, a jury in Durham would have been under tremendous pressure to convict these young men, even though there literally was no evidence they even had touched Crystal Gail Mangum.

Despite the fact that Nifong openly broke numerous federal and state laws, authorities refused even to investigate his actions. So, if the authorities are not going to pursue a prosecutor whose lawbreaking was obvious and who had lost his political cover, why should we expect them to do anything in cases where lawbreaking might be harder to prove? As I see it, the failure by law enforcement officials in the Nifong-Duke case is proof that those who personally benefit from the criminal justice system are not going to do anything to rock the boat. If that means that injustice rules, then so be it. Those who run the system understand perfectly that they are invulnerable, and people who are not held accountable for wrongdoing eventually will run off the rails.