Thursday, November 5, 2009

An invitation to think . . .

Charlottesville listener Marva Barnett sent me this reaction to Nina Totenberg's summation of Wednesday's oral arguments before the Supreme Court in the case POTTAWATTAMIE COUNTY V. MCGHEE.

"What is just? What is legal?  They are all too often not the same thing.  Nina Totenberg’s recounting of the current Supreme Court case about prosecutorial immunity shines a spotlight on what Victor Hugo called “the quarrel between rights and law.”  Not until that quarrel is resolved, he wrote (in the preface to his collection of socially-conscious speeches), will society reach true civilization.
            In this case, attorneys for the Council Bluffs, Iowa, prosecutors argue explicitly, bluntly, that Americans have no constitutional right not to be framed for a crime they didn’t commit. Terry Harrington and Curtis McGhee were imprisoned in 1977 for a murder they had no hand in.  Tenaciously stating his innocence, Mr. Harrington was finally released in 2003 after a case review in which eyewitnesses recanted their testimony.  Under Iowa law neither man has legal recourse to receive compensation for the 25 years lost because of fabricated evidence.  Their suit against the Council Bluffs police and prosecutor for violating of constitutional rights has reached the Supreme Court.  An objective case summary shows that the police and prosecutor ignored evidence pointing to another, well-connected suspect and accepted testimony against Mr. Harrington from a man with a criminal record who erred in his story about the murder location and weapon involved.
            Still, attorneys for the prosecutors, while hypothetically admitting that Mr. Harrington might have been framed, contend that such framing is legal, though perhaps not just.  Victor Hugo must be raging in his Paris Pantheon tomb!  Were he able to put pen to paper, he would this morning be dashing off a public letter.  Justice is divine, he would write, far above the laws that people create.  When everyone can see where justice lies in a cause, should we not choose what is just over what is legal?  Why are laws not written to promote justice?  Human rights come from God, and laws cannot morally overcome them.  Jean Valjean, after 19 years at hard labor for stealing a loaf of bread, learned this from a man of God.  The author of Les Misérables would be making the case for Mr. Harrington, human rights, and justice."
Marva Barnett, author of Victor Hugo on Things That Matter (New Haven: Yale University Press, 2009)
Marva Barnett's piece is not, of course, a discussion of the legal intricacies of procedure and precedence that will weigh heavily in the Supreme Court's decision. Instead it addressed the question--as WMRA's Tom DuVal, with whom I love to talk over these kinds of knotty questions, pointed out--"should anyone be allowed to get away with unjust acts just because a law says it's okay?"

If you've got a few moments to devote to thinking about the distinctions between what is legal and what is moral, I'd suggest taking a look at Ms. Totenberg's summation and then re-read Marva Barnett's challenging reaction. I did both yesterday, and I'm still pondering the issues involved.

1 comment:

  1. As a former prosecutor, I don't think that prosecutors should themselves be immune as state actors to civil lawsuits. The chilling effect argument, as well as the notion that the state would be flooded with lawsuits, don't carry a lot of weight to me. Nor does the supposed absence of a constitutional right not to be framed. A convicted criminal has a constitutional right to appeal his or her case, and one of the many claims of prosecutorial misconduct that is routinely brought is that of fabricated evidence.

    The number of cases that are reversed on the grounds of insufficient or misused evidence are very few. As for reversal due to "framing," those are even fewer. So, I can't see that prosecutors would face unending litigation in this respect, especially if the claim were limited to the pre-trial collection of evidence.

    The chilling effect argument is interesting. I think Judge Sotomayor misunderstood the government's position when they argued that a rule of prosecutorial liability would make prosecutors "flinch" when introducing evidence. She argued that they should stop, rather than flinch. But in the absence of DNA evidence, there is hardly any direct evidence, e.g., testimony, the introduction of which wouldn't make a prosecutor flinch (at least I thought such evidence was largely flinchworthy). Witnesses are so often convicted criminals with less than upstanding characters and they can have a record of perjury and still testify. They may be lying or engaged in a framing scheme, and it is up to the defense to tease out those possibilities and for the jury to decide. Indeed, prosecutors often elect not to use witnesses whose ability to tell the truth is dubious not for ethical reasons, but because they anticipate from a strategic standpoint that too much negative stuff will come out and hurt their case. Because there is no limit except relevance to how much a witness can be questioned and proven a liar or biased.

    But this is not the type of thing a prosecutor would be potentially on the hook for unless he or she knowing procured false evidence. Introducing false evidence is a whole different thing from introducing evidence that is unreliable or lacking in credibility. It is not the prosecutor's job to make judgment calls in this regard. It strikes me that it would be very hard to prove that a prosecutor KNEW pre-trial that his or her evidence was bad. There would have to be some sort of conspiracy evidence, and that, one hopes, is very rare!

    But as I write this, it seems that the pre-trial/mid-trial distinction that Breyer made is kind of meaningless. Because what if a prosecutor comes to learn, during the trial, that the evidence he or she is using or will use is false? Using such evidence would be equally reprehensible and I don't see why they should have immunity for that . . . . .

    Gotta go! Great questions.