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There are Rights, and Then There's What Is Right

November 4, 2009

THE SUPREME COURT IS HEARING the case of two men who were wrongly convicted and spent 25 years in the slammer before being exonerated.

The Supreme Court has indeed said that prosecutors are immune from suit for anything they do at trial. But in this case, Harrington and McGhee maintain that before anyone being charged, prosecutors gathered evidence alongside police, interviewed witnesses and knew the testimony they were assembling was false.

The prosecutors counter that there is “no freestanding constitutional right not to be framed.” Stephen Sanders, the lawyer for the prosecutors, will tell the Supreme Court on Wednesday that there is no way to separate evidence gathered before trial from the trial itself. Even if a prosecutor files charges against a person knowing that there is no evidence of his guilt, says Sanders, “that’s an absolutely immunized activity.” [Morning Edition]

That’s an astounding amount of power and impunity being proposed right there! Though as IOZ points out:

Immunizing prosecutors from lawsuits is a far more drastic and interventionary step than simply heading off most suits of this type by offering modest restitution and recompense for time served after an illegitimate conviction. [IOZ]

Commenter David drives home the point about the impunity with which police and prosecutors like these prefer to operate:

There’s a special arrogance in a group of guys … claiming that no action they take at work should be ever be held against them, as not being able to break the law without consequence would really fuck up the flow of their day.

Really, even getting an innocent convicted without using fake evidence should bother them, as in any sensible world, it would be a mark of incompetence. [David]

Of course, another way to head off such suits would be to protect suspects from frame-ups in the first place. It is possible to imagine a better system, or better yet, remember one you read about once. Like, say, one put forth by Bertrand Russell in Power: A New Social Analysis (1938)

[Emphasis added.] In every democracy, individuals and organizations which are intended to have only certain well defined executive functions are likely, if unchecked, to acquire a very undesirable independent power. This is especially true of the police. The evils resulting from an insufficiently supervised police force are very forcibly set forth, as regards the United States, in Our Lawless Police, by Ernest Jerome Hopkins. The gist of the matter is that a policeman is promoted for action leading to the conviction of a criminal … and that, in consequence, it is to the interest of individual officers… [to do whatever it takes to elicit a confession (or build their case).] … For the taming of the power of the police, one essential is that a confession shall never, in any circumstances, be accepted as evidence.

This reform, however, though necessary, is by no means sufficient. The police system of all countries is based upon the assumption that the collection of evidence against a suspected criminal is a matter of public interest, but that the collection of evidence in his favor is his private concern. It is often said to be more important that the innocent should be acquitted than that the guilty should be condemned, but everywhere it is the duty of the police to seek evidence of guilt, not of innocence. Suppose you are unjustly accused of murder, and there is a good prima facie case against you. The whole of the resources of the State are set in motion to seek out possible witnesses against you, and the ablest lawyers are employed by the State to create prejudice against you in the minds of the jury. You, meanwhile, must spend your private fortune collecting evidence of your innocence, with no public organization to help you. If you plead poverty, you will be allotted Counsel, but probably not so able a man as the public prosecutor. If you succeed in securing an acquittal, you can only escape bankruptcy by means of the cinema and the Sunday Press. But it is only too likely that you will be unjustly convicted.

If law-abiding citizens are to be protected against unjust persecution by the police, there must be two police forces and two Scotland Yards, one designed, as at present, to prove guilt, the other to prove innocence; and in addition to the public prosecutor there must be a public defender, of equal legal eminence. This is obvious as soon as it is admitted that the acquittal of the innocent is no less a public interest than the condemnation of the guilty. The defending police force should, moreover, become the prosecuting police force where one class of crimes is concerned, namely crimes committed by the prosecuting police in the execution of their “duty.” By this means, but by no other (so far as I can see), the present oppressive power of the police could be mitigated. [Russell, pp 295-297]

Surely there are myriad reasons such a system hasn’t occurred to US.

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