Monday, November 2, 2009

No Constitutional Protection Against Being Framed

"THERE IS NO Freestanding Constitutional 'Right Not To Be Framed.' " So states a brief filed by Iowa prosecutors hoping to persuade the Supreme Court to dismiss a lawsuit against them for allegedly fabricating evidence that led to the 25-year incarceration of two innocent men. It's a breathtaking proposition that the justices should roundly reject when they hear the case Wednesday.


"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Burger v. United States (1935)

It is clear that police and prosecutors can use deception, to a degree, in order to obtain confessions and convictions. However, knowingly allowing the use of perjured testimony goes beyond the use of trickery. There is no defense against unscrupulous prosecutors who will do anything in order to win.

The defendants maintain that prosecutors have absolute immunity for actions during the trial. They maintain that this immunity extends to the pretrial phases. They also argued that modifying absolute immunity would result in a flood of litigation, which would then result in prosecutors "flinching" - they would be reluctant to perform their duties.

Odd that no mention seems to be made of the fact that police officers have a qualified immunity, which does not hamper them from performing their duties. Police can be hed accountable for their actions when they engage in illegal behavior. No one is disputing the facts of this case (Pottawattamie County v. McGhee.). The prosecutors fabricated evidence, coerced perjured testimony, withheld exculpatory evidence, and covered up evidence that led to the real suspect.

Our criminal justice system has enough problems without the U.S. Supreme Court adding another one. The decision in this case should be clear, but it is not clear that members of the Court have the moral courage to arrive at what should be a clear cut outcome. No one, including prosecutors, is above the law.

Here is another report from National Public Radio.

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