More on absolute immunity for prosecutors; a reponse to Irwin Weiss

Highly prestigious Baltimore personal injury and insurance attorney Irwin Weiss, (hes my uncle, so he sometimes reads my blog) emails regrading my post on absolute immunity for prosecutors and the possible problem of floodgates of liability. I had challenged opponents of immunity, Irwin, to state why prosecutors work was in need of immunity, while the work of doctors, lawyers, and cops, were not. In other words, I had asked, why is it enough in cases against cops or doctors that we simply require the plaintiff to prove his case?

emails Irwin:

"Most encounters between a doctor and a patient don't result in a bad outcome. People who go to doctors are, in general, reasonable. However, a huge percentage of criminals are convicted (bad outcome for them). Then, many go to jail where they have nothing to do. Look at the large number of totally frivolous criminal appeals and habeas petitions. Many are filed pro se [ i.e.without a lawyer] from the jail. They all need to be looked at by court clerks, judicial clerks, judges, etc.

Might be interesting to try to find some statistics on the number of pro se criminal appeals and habeas petitions.

Granting sanctions against a pro se criminal filing a habeas petition is worthless.

It's the class of potential plaintiffs that is different."

I guess he acknowledges that removing immunity doesn't mean you have proved your case, nor does it mean that you haven't been actually guilty and contributory negligent to the process that put you in jail (thereby making the possibility of recovery from a malicious prosecutor, even without immunity, nearly impossible for anyone who cant prove their innocence). It seems he would also acknowledge that the government may, as it always does, cap penalties at a certain amount per incident or per person, regardless of actual damages. Governments, by statute, are almost never liable for punitive damages ever.

It seems, though, that Irwin is concerned about frivolous litigation. That is, argues Irwin, it doesn't matter that such lawsuits would fail unless meritorious, since the court would still have to spend time screening them out. The process normally used to prevent frivolous civil litigation, monetary penalties for filing frivolous suits, he argues, would be of little value against a mostly indigent criminal population.

There are indeed, indisputably, many many criminal pro se appeals and habeas petitions. And it is true that we have no choice but to allow them, since we would need to violate due process (to limit appeal) or suspend the writ of habeas to limit habeas. In truth, there has already been some legislative solutions. Congress, in the Anti-terrorism and Effective Death Penalty Act (AEDPA) of 1996, has already limited you to 1 federal habeas based on anything other that new evidence of actual innocence unknown to the defense at trial-and that petition is heard with huge deferential standard toward the direct appeals courts on matters of law-i.e, for habeas to issue, the decision of the appeals court must have be contrary to clearly established precedent).

I imagine, that, it also makes sense that sanctions against a criminal complainant is almost always useless.

Note: at least some criminals do end up paying large portions of fines or restitution and court costs-either through their work in the prison for (x cents an hour), or after they get out and get a job on probation. (on the point of repayment it would really be interesting to have statistics.)

However, I do have some further responses:

1. Why do we allow suits against criminal defense attorneys for malpractice? (yes even for negligence). Wouldn't every prisoner file a lawsuit against their criminal defense attorney? Of course, again, you have to prove your case-and of course, your going to have to prove you didn't actually do it, and thus get yourself in the mess. (otherwise-plaintiff is contributorily negligent toward the process that put him in jail which would limit or eliminate his award). So i guess thats enough protection for defense attorneys, but not enough for prosecutors. I guess we don't care so much about defense attorneys do we?

2. How about cops and prisons? Same problematic population. Oddly however, we allow the lots of civil complaints against police officers for brutality, and complaints by prisoners against the prison for relief from prison conditions (such as suits complaining the warden denied them access to this or that thing in violation of statue or constitutional right.) These types of suits are are not necessary from a due process or constitutional standard, (particularity the ones that claim violations of state or federal statues). But we allow them, and the courts don't seem to fall over with the burden of processing the complaints. These suits are by the same problematic population that we worry, legitimately, would also file frivolous litigation against prosecutors if they had no immunity.

But I guess cops and prisons are not in need of the same absolute immunity to protect them because-after all, the plaintiff must prove their case. (end sarcasm)

3. Because appeals and habeas actions are necessary, but admittedly, also mostly frivolous, state legislatures and the federal government have both set up full time pro se litigant screening clerks. These are clerks hired by the courts, solely with the job of screening out frivolous pro se litigation. Often these clerks are recent law school grads who aren't good enough achievers to make real clerks. (such as, i don't know, myself possibly ;)) Thus the clerks are usually pretty cheap to hire. The cases are relatively simple to process to simply pull out the frivolous ones, and the real ones get passed on to be looked at by a real judge. (hint: the ones written on lined paper in pencil, which don't quote a single case or statue-are frivolous) This is actually why i find it so odd that in MD, two high court judges, look at all cases that go to the intermediate court, the CSA, for possible sua sponte cert before being heard by the CSA. It had seemed to me this defies the whole efficiency of having a CSA in the first place.

4. Pro se prison litigation such as this (aside from police brutality suits) is usually only not moot while the guy is still in prison. Thus, these suits are heard regardless of the fact that the guy is in prison, and probably bored with nothing to do but file lawsuits.

But civil litigation for compensation based on wrongful conviction, whether based on negligence or real malice, would be ripe long after the guy was out of jail and exonerated.

Therefore, were I to suggest a legislative solution to a legislator with Irwin's concern, it would be that for immunity not to apply to a prosecutor, the applicant must have already secured an overturning of his guilt from appeal, or habeus petition. (or by the state filing a petition for release based on actual innocence-done often in the cases handled by the innocence project). Since the plaintiff couldn't really recover unless he was actually innocent anyway (otherwise-hes contributorily negligent toward the process that put him in jail which would limit or eliminate his award), such a limitation wouldn't eliminate relief for any of the wronged plaintiffs, but would be very effective in screening out litigation by bored inmates.

It could also be a court imposed solution.

The supreme Court, hearing the negligence case for wrongful conviction against the CA prosecutor and deciding whether to end absolute immunity (it recently granted cert) will be dealing with a plaintiff who has been out of jail for quite some time.

Later, if it allows the suit, courts may limit as premature and unripe suits in the future if a guy in jail decides to sue a prosecutor.

I understand that fairness comes expensive. But a certain type of fundamental fairness is worth quite a bit of money. As Oliver Wendell Holmes and later the IRS have famously stated "taxes are the price of a civilized socially." I don't think that virtually unchecked ability to knowingly prosecute innocent people for crimes, ruin their lives, and not be legally responsible except to possible administrative sanctions (which usually don't apply to knowing prosecution of the innocent unless probable cause was ever originally established-even if they are later demonstrably innocent), is a "civilized" system.