What I don't get is how Lithwick comes right out swinging at the Roberts Court, accusing it of basically not caring about criminal defendants, what with the "It Sucks To Be You" bit, but then it quickly becomes apparent that the so-called conservatives -- even Justice Scalia! -- are actually, surprise-surprise, quite concerned about the whole thing. Even a hardened former-prosecutor-turned-judge would be angry about a prosecutor who fabricates evidence and uses it at trial to wrongfully convict innocent people. Prosecutors are officers of the court just like anybody else, and are not allowed to knowingly suborn perjury just like anybody else.

I have a feeling that the Court will draw the same line for prosecutors that has been drawn for defense attorneys. Just like prosecutors sometimes put scummy informants on the stand, defense attorneys also want to be able to let their scummy clients tell their story to the jury, no matter how ridiculous it might be. But that's not actionable. It's only actionable when the lawyer knowingly submits the lie to the court or jury. The lawyer can always play the "I don't know if it's true, that's for someone else to decide" game, but can't do that once they know the evidence is false.

Despite Lithwick's best efforts, it appears that the Justices will likely agree that prosecutors should be in bad trouble for making up evidence. The only question is how to draw the line so that prosecutors aren't sued after every conviction. That is a reasonable question, and far from the "It Sucks To Be You" attitude that Lithwick foolishly ascribes to the Court.

Scalia - yes, you have a point, he asks some questions indicating concern. But remember he has previously been on record suggesting that ACCUSED but unconvicted individuals aren't protected from being tortured under Am 6, because pro-active torture isn't "punishment" - so his concern here rings a bit hollow

Then add in Silent Bob (aka Thomas), and Saute with an Alito and Roberts who are aggressively pursuing the line of reasoning that it would just be Horrible to make prosecutors blink if they even have the slightest suspicion of bad evidence, and you have exactly what Lithwick is suggesting.

From the Orals that I heard on the radio yesterday, it does not at all appear that the conservative justices feel that prosecutors should be in trouble for any use of evidence they know even to be false. Remember, Alito feels its perfectly OK for Police to shoot unarmed non-violent suspects in the back.