Getting Away with Murder — Prosecutorial Misconduct and Qualified Immunity

EvidenceThe grand designs of an ambitious prosecutor, Charlie Graham, propel much of the action in my new novel, Blame. And the kind of thing he gets away with has become a daily occurrence — and I don’t mean the crime on our streets. I mean the constant flow of news about people who have been wrongly imprisoned, many of them for decades, and more than a few sitting on death row.

Statistically, folks, it’s pretty obvious that a lot of innocent people have gone to their deaths who shouldn’t have been imprisoned in the first place. We’ll probably never know about most of them, but we know about the horrible miscarriages of justice that go unpunished. You heard me — the men and women who are paid by us to get it right, to punish the guilty and protect the innocent, are too often guilty themselves. These are the prosecutors, a position so powerful that it can poison the judgment of many good lawyers who go to work for the state and end up corrupted by their ambition and ego.

US_incarceration_timeline-clean.svgHow, you may ask, do the prosecutors in these cases get away with falsifying confessions, with hiding proof of a defendant’s innocence or another perpetrator’s guilt?  Why would the courts not punish prosecutors who know that an innocent man has languished in prison for decades? Where are the safeguards that will prevent this perversion of our justice system?

You need look no further than a concept known as “qualified immunity.” In a nutshell, the law, at the federal and the state level, says that prosecutors can lie, cheat and steal in front of everyone, but if they do it as part of their workday duties, they cannot be touched — not by a civil suit, not by a constitutional claim, not by anything you or I can think of that would land the rest of us in a prison cell or pauper’s court.

thomas_scaliaLeading the charge to broaden the immunities for judges, prosecutors, police officers and other public officials are Supreme Court Justices Antonin Scalia and Clarence Thomas. So we will continue to see the disheartening and tragic waste of human life brought about by zealous prosecutors who know they can get away with just about anything. The only brake on their crime sprees are their own consciences — or the consciences of their superiors who can fire them, if they have the courage to do so.

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