The Informant Quandary (Part I)

To those who have never had any dealings with America’s criminal “justice” system, and to those who have been victims of crime, prosecuting attorneys are often viewed as noble crusaders, fighting for truth and justice against the machinations of “slimy” defense lawyers who will do anything to ensure that the guilty go unpunished.

Photo: The Informant Quandary (Part I)

Even the rhetoric reflects this perception. If criminal defendants are wrongfully convicted, it is simply because prosecutors “made a mistake.” If criminal defendants are acquitted, however, it is because defense lawyers “got them off.” And an acquittal does not mean innocence in the eyes of the legal system. It simply means that the prosecutor was unable to prove guilt, “beyond a reasonable doubt.”

But when I practiced law, I discovered a different reality—one that often inspired me to say, tongue only slightly in cheek, that many prosecutors are nothing more than criminals with immunity.

The legal doctrine known as “absolute immunity” protects prosecutors from being sued by those they prosecute, even if they have been wrongfully accused and/or convicted. The underlying theory is that prosecutors would be unable to do their jobs if they had to worry about a potential lawsuit every time criminal charges were filed.

The truth, however, is that this doctrine causes many prosecutors to abuse the authority of their office, knowing they face little, if any, repercussions for doing so.

Thus, during my legal career, I saw a prosecutor angrily berate a defense attorney for revealing that a police officer’s perjury had resulted in a wrongful conviction; I heard another respond with a dismissive “Oh Well!” after a man she had been prosecuting was found guilty, even though she personally believed he was innocent; I witnessed another prosecutor try to criminally convict a man simply because he expressed a desire to sue the police department for the excessive force used against him; and I watched in disbelief as another excessive force victim—who had been beaten so severely that he had to be hospitalized—was put on trial for resisting arrest, even though the supervising police officer on the scene informed the prosecutor that the man had done nothing to justify the arrest or the beating.

The reason many prosecutors are little more than criminals with immunity is because they share the same ability as criminals—the ability to rationalize anything. For example, when a criminal was asked why he killed an entire family during a residential burglary, his answer was “They were home.” After another was asked why he robbed banks, he replied, “Because that’s where the money is.”

There are two common rationalizations for prosecutors, particularly after they’ve wrongfully convicted somebody: “I just presented the case. The jury did the convicting,” and “I was only doing my job.”

Ironically, even though they work to punish wrongdoers, prosecutors are frequently rewarded for their own wrongdoing. Many, if not most, judges started their careers as prosecutors, as did many elected officials.

Even egregious prosecutorial misconduct often goes unpunished. An example previously cited in Pravda.Ru articles was the Cruz/Hernandez trials in Illinois, where police and prosecutors were criminally charged for allegedly using perjured testimony to send two innocent men to death row. The jury not only acquitted the police and prosecutors, they partied with them afterwards. Who would have thought that in America, the alleged bastion of “justice for all,” conspiracy to commit murder, by using the legal system as your weapon, is not only excused, but celebrated?

Ironically prosecutors who are “crusaders,” are the most dangerous of all. Obsessed with punishing certain crimes, like child abuse, domestic violence or sexual assault—all horrific crimes that deserve punishment when actually committed—prosecutorial zealots often lose all sense of objectivity, all sense of justice, and all sense of right and wrong. Suddenly guilt or innocence becomes irrelevant. What becomes paramount is “sending a message.”

Those who doubt this need only listen to the cable-televised rants of many former prosecutors now working as legal “commentators.” During the infamous Duke University “rape” case—where several members of that university’s lacrosse team were accused of sexually assaulting an exotic dancer—many of these commentators clung vehemently to the belief these men were guilty, even though the strength of the alleged evidence against them diminished with each passing day.

In fact, after the charges were finally dropped and the men officially declared innocent, Jon Stewart of Comedy Central’s THE DAILY SHOW did a montage of CNN’s Nancy Grace, whose histrionics symbolized the zealotry surrounding the Duke case.

Grace would often announce that new developments would “make or break” the case, yet when these developments invariably pointed towards innocence, she would dismiss them as irrelevant.

Not surprisingly, even the innocence of these men did not quell the histrionics of many of these former prosecutors. They simply changed their mantras of “guilty” into “What kind of message does this send? It will make women less inclined to report such crimes!”

Undoubtedly some will argue that there is a differencebetween former prosecutors who serve as television personalities and current prosecutors who actually try the cases. But not so long ago prosecutorial zealots were rabidly seizing on the “day care/child molestation” hysteria sweeping across America. Scores of innocent people were sent to prison on the word of corrupt cops crusading to find “satanic” cults that didn’t exist, inept, poorly trained interviewers and therapists who incessantly used leading and suggestive questions, and children whose testimony was frequently coached or coerced.

Unfortunately the potential for abuse is not diminished even when prosecutors are not crusaders. Most prosecutors are elected officials, and have to appease the voting public. Thus there is a strong incentive to win “high profile” cases—crimes that are widely publicized and/or cause fear, panic or outrage in the community—even if it means taking a few unethical, and possibly illegal, “shortcuts” to do it.

The inherent difficulty with the legal system is that oftentimes those who work in it erroneously view it as a sporting event. But a defense attorney’s ability to free a guilty person can hardly be called a “victory” for the victims or society. Conversely, a prosecutor who convicts an innocent person may have “won” the case, but this “victory” means that the guilty are still walking the streets.

Due to prosecutorial misconduct and abuses, the courts have made some dents in the immunity armor. Prosecutors acting in “investigative” roles are now only given “qualified immunity”—the same type that is available to police officers. Prosecutors also lose their absolute immunity protection if they knowingly lie in the “charging document,” which accuses a person of committing a crime.

Now the United States Supreme Court is examining another immunity question: Whether prosecutors acting in a “supervisory capacity” can be held liable for the courtroom actions of their subordinates, and/or the policies and practices of their offices.

The case in question, Van de Kamp and Livesay v. Goldstein, specifically deals with the use of informants, one of the most controversial areas of criminal justice.

Police and prosecutors argue that informants are an indispensable part of law enforcement, particularly since the rituals often required to join criminal gangs—being vouched for by a current gang member, being required to submit to a physical beating to demonstrate loyalty and commitment, or being compelled to commit a violent crime—make infiltration by undercover police officers difficult, if not impossible.

To be continued…

David R. Hoffman, Legal Editor of Pravda.Ru