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Tenth in a series

For many years in this country prosecutors have enjoyed immunity from suit for the mistakes in judgment they may make, even if those mistakes result in a wrongful conviction. That may be about to change.

The NYTimes is reporting that SCOTUS has granted certiari in a case which may limit prosecutorial discretion for prosecutors acting in capacity outside a strictly prosecutorial role.

The Supreme Court accepted an appeal on Monday that could help define the boundaries of prosecutorial immunity in an era when the officials who head big prosecutor’s offices function as managers as much as they act as hands-on lawyers.

Now there are often two reason why SCOTUS decides to hear a case on a seemingly well-settled area of law: 1) to change the law and send it a new direction if it appears that it has gone too far down a given path, or 2) to reaffirm the well-settled law when it seems as if inferior courts are trying to chip away at it.

In this instance, a man wrongfully convicted of murder on the basis of false testimony by a jailhouse informant sued the top two officials of the Los Angeles County district attorney’s office on the ground that they had failed to set up a proper management system that could have flagged the problematic nature of the informant’s testimony.

In rejecting the officials’ claim of absolute prosecutorial immunity, the federal appeals court in San Francisco held that the suit was related not to the men’s role as prosecutors, but as office managers.

So, I find myself wondering, if doing managerial work pulls you outside the role of prosecutor such that your managerial duties were no longer immunized; what about an OLC lawyer who is functioning as a "mini supreme court" and instead of rendering neutral reports of the state of the law, begins writing policy papers while mislabeling them as OLC opinions?

If the Supreme Court is going to start making exceptions to the immunity the good folks at DOJ (and other prosecutors’ offices) have enjoyed, how many other exceptions might be carved out?

Mr. Van de Kamp and Mr. Livesay argued unsuccessfully in the lower federal courts that the suit should be dismissed on the basis of absolute prosecutorial immunity. In their Supreme Court appeal, Van de Kamp v. Goldstein, No. 07-854, they argue that “the dissemination of exculpatory information to the defense” is a “core prosecutorial function,” distinct from administrative functions like “hiring procedures and compensation schedules.” The lower courts were mistaken in viewing their failure to have a proper record-keeping system as administrative rather than prosecutorial, they maintain.

Mr. Goldstein’s lawyer argues that “entering information into and retrieving information from a data-indexing system” are “transparently administrative activities” and that no “floodgates” will open, because most prosecutors’ offices, including Los Angeles, now have the systems to avoid future mistakes.

So, I don’t know why SCOTUS decided to hear this case, and sure as shootin’ have no clue how they will decide it. Something tells me though, that John Yoo will be keeping a weather eye out to see how this case turns out.

And so will I.

[Editor's note: This photo by takomabibelot features a banner created and designed by Firedoglake reader BonnieT of Austin, Texas, where she operates OpposeTorture.org.]

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