Month: April 2008

We’re the Only Ones Absolutely Immune Enough.

Generally speaking, it is smart public policy to shield prosecutors from lawsuits when it comes to determining in which cases they’ll pursue charges…

But you could make a good case that absolute immunity takes this idea too far. Even police officers are given what’s called “qualified immunity” from civil rights suits, which in 1983 the Supreme Court determined meant, “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

That sets a hurdle for lawsuits against the police, but not a wall (some would argue that this hurdle is also too high). It might be time to consider applying that standard to prosecutors, too.

Actually, it’s past time. The absolute immunity doctrine should never have been established.
The simple fact is, freedom depends on responsibility and accountability. You just can’t have one without the others.

Having “Only Ones” impervious to the laws the rest of us are bound by is the essence of tyranny.

And as for incentives for prosecutors, the incentive ought to be to reduce prosecutable “offenses.”

[Via Carl S] [The War on Guns]

Actually, I think even the “qualified immunity” is pretty meaningless today. Cops constantly, systematically, and with impunity “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Nothing ever happens to them for doing so. In fact, as far as I can tell it’s impossible to be a cop without violating people’s rights. What do you suppose happens to some trainee cop the first time he refuses to search or arrest someone for carrying a pistol, for example, even though doing so would be a blatant violation of that person’s constitutional rights?

Blogger William Grigg has a series of posts on the mass kidnapping and child abuse case in Texas:

“Your Children Are Ours” (Updated, 4/16)

Collectivist Child Abuse (Fourth Update, 4/18)

Quid Spucatum Tauri Est? (Second Update, April 22)

The Subject “People” vs. The Ruling “Persons” (Updated, April 23)

By way of contrast, here is an account of what happened to a corrupt Sheriff’s department at a time when there were still enough people around with a vague memory of what a free country was.

Nudge.

The New York Times reports that a bunch of ex-military on-air “analysts” are in bed with both military contractors and the Bush administration:

Records and interviews show how the Bush administration has used its control over access and information in an effort to transform the analysts into a kind of media Trojan horse — an instrument intended to shape terrorism coverage from inside the major TV and radio networks.

Analysts have been wooed in hundreds of private briefings with senior military leaders, including officials with significant influence over contracting and budget matters, records show. They have been taken on tours of Iraq and given access to classified intelligence. They have been briefed by officials from the White House, State Department and Justice Department, including Mr. Cheney, Alberto R. Gonzales and Stephen J. Hadley.

In turn, members of this group have echoed administration talking points, sometimes even when they suspected the information was false or inflated. Some analysts acknowledge they suppressed doubts because they feared jeopardizing their access.

This is what governments do. Republican governments. Democratic governments. They spend their subjects’ money shaping their subjects’ opinions, so that they can spend more of their subjects’ money.

No doubt most of the talking head generals and colonels believe sincerely that they were acting in the best interests of the people they have devoted their lives to serving. It is simply that we “civilians” do not really know what we need to know in order to decide wisely for ourselves, and so public opinion needs to be massaged a bit to generate political support for policies that truly do protect us. If the well-meaning soft paternalism of concerted propaganda and financial self-interest happen to coincide, then all the better. Our guardians will only be better motivated to guard us! (And, really, after a lifetime of service, don’t they deserve to get theirs?) Crucially, no one here is forcing anyone to support the administration’s policies. It’s just a bit of a nudge, from people who know better.

[Will Wilkinson / The Fly Bottle]

Of course the mainstream media also has a history of parroting the government line “because they feared jeopardizing their access.” I doubt the New York Times will be in any hurry to mention that, despite its own role in pushing government propaganda.

More From Mississippi.

The Jackson Free Press wrote up the Innocence Project’s move for Dr. Hayne’s medical license. But the article also includes some info about Cedric Willis, the third exoneration in Mississippi this year–one we haven’t heard nearly as much about.

Exonerated Jacksonian Cedric Willis spoke to the audience about spending 12 years behind bars, nine of them in Parchman, for a murder he did not commit—even as Hinds County Circuit Judge Bobby DeLaughter made no move to exonerate him during those years he spent wrongfully serving time, despite the existence of evidence that could clear him.

“He had a motion on my freedom for years, and I never got a response from him. The judge had a right to say, ‘this is not right,’” Willis said, earlier questioning how DeLaughter could “sleep at night” knowing he’d sent an innocent man to rot in prison.

Here’s how:

DeLaughter was the assistant district attorney at the time, working under District Attorney Ed Peters, who prosecuted Willis. Judge Breland Hilburn was the judge in the Willis case; neither he, DeLaughter or Peters pushed to allow DNA evidence and witness testimony that could have proved Willis innocent. The real killer remains at large.

So the judge who heard most of Willis’ appeals was an assistant DA in the office that prosecuted him. Lovely. Oh, and then there’s this:

DeLaughter is currently under investigation for allegedly taking bribes from Peters, on behalf of attorney Dickie Scruggs, to influence cases. The Mississippi Commission on Judicial Performance recently suspended DeLaughter from the bench while the federal investigation continues.

This is worth noting, too:

“When Cedric Willis was prosecuted, the state of Mississippi knew full well that they had an innocent man,” Maw said. “This was not a case where the prosecutor thought he maybe had a weak case but … went ahead with the prosecution with some reservations.”

Maw added: “They knew outright that Cedric Willis did not commit this crime and they said so themselves in the newspapers—then they willingly kept out evidence that would have proved him innocent, and they let him sit in jail.”

“They should be punished for that and probably never will be because state law says that if the prosecutor does something wrong they have almost absolute immunity.”

It’s way past time to start rethinking absolute prosecutorial immunity.

[The Agitator]

The problem is, that won’t do any good. There’s already a law on the books that applies in cases like this:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured –

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death

Title 18, Part I, Chapter 13, Section 241 US Code

Under this law, Judge DeLaughter should be facing life in prison or the death penalty. But this law will never be applied, any more than any changes to prosecutorial immunity would be, because these are the people who apply them. They don’t prosecute each other any more than cops arrest each other.