As a prosecutor, you have absolute immunity when you're doing things that are in the "shades of gray" territory -- the kind of slightly-unsavory stuff you see on a regular basis on Law & Order.

If you commit a crime, though, your immunity is gone. Suborning perjury (as in, working with a witness who plainly knows nothing, training them to tell a consistent, and entirely-made-up, story), or introducing evidence you know to be false, violates your oath as a public servant. As such, you give up the shield of immunity that your service provided.

Just to elaborate a bit -- the idea I had in mind was that the wronged individual would still, technically, sue the state, but the state gets an extra incentive to try the real wrongdoer, because if the prosecutor is convicted, his assets can be seized to compensate the victim, rather than paying damages out of public funds.

Might make sense in theory; the problem is that, in practice, the plaintiffs will simply allege that the prosecutor's actions were a crime and not merely in a gray area. The allegation will not be "the prosecutor was too trusting of an informant whose story was questionable and of which the prosecutor might and should have been far more skeptical" but that "the witness's testimony was obviously false and the prosecutor knew it."

See how easy that was to allege? In a regime in which that's enough for a civil trial, or even enough to require the prosecutor to turn over his or her office's case files and the prosecutor to answer discovery requests and testify at depositions about what he or she knew and thought, and when he or she knew and thought it, prosecutors who are going about their jobs properly and honestly will be put in an impossible situation.

And, to elaborate on my point, that's why cases like these are hard. If the question were simply "is it bad if prosecutors fabricate evidence they know to be false and then use it to convict a defendant they know is probably innocent?" it would be about as hard as "what color was Gen. Washington's white horse?" The Supreme Court picks fewer than 100 cases a year out of many thousands submitted to it for review; it doesn't pick the ones that are easy. The hard question here is: "In most -- but fewer than all -- cases with allegations like these, the allegations will turn out to be bogus or unfounded. A rule of absolute immunity will deter bogus or unfounded claims and allow those that are filed anyway to be dismissed quickly and efficiently, but will also flush the few potentially meritorious claims; we would have to rely on the prospect of professional discipline as a sanction. A weaker rule would let the few potentially meritorious claims go through but would not allow bogus or unfounded claims to be dismissed quickly and efficiently, and would very likely encourage bogus or unfounded claims to proliferate. Is there any way to let the potentially meritorious claims go through without unintended, but easily foreseeable, ruinous consequences for prosecutors who are doing their jobs properly and the offices that employ them?"

My point was that the prosecutor in question would have to actually be convicted before they lost immunity. That's the bright line.

auros:

Sully prefers no recourse to prosecutors lying in court under the guise that most are doing there job properly. Unfortunately, false murder convictions in court are > than .25 of 1% that Scalia and Marquis proffer and appear to approach 8% if the numbers are recalculated in a proper statistical manner. I suspect the percenatage is higher for prosecutorial misconduct, negligence, and lying in court also. It would be an interesting study.

Sully prefers no recourse to prosecutors lying in court under the guise that most are doing there job properly.

No; not true. The question was simply whether allowing criminal defendants to sue their prosecutors is medicine that, on balance, is worse than the disease. There are other remedies; they just don't entail letting criminal defendants and plaintiffs' lawyers sue the prosecutor in civil court. Prosecutors who do what the prosecutors in the McGhee case are accused of doing are subject to severe professional discipline. If disbarred, that's not only the end of their careers as prosecutors, that's the end of their careers as lawyers. Most prosecutors are prosecutors because they believe they are doing an important public job and doing good but eventually leave for private sector jobs that may be less rewarding on a personal level but are far more rewarding financially (makes it possible to save for kids' college tuition, retirement, etc.). The prospect of losing the ability to maintain any career as a lawyer is hardly a meaningless deterrent; even if a prosecutor were merely suspended from practice rather than disbarred outright, his or her job prospects in the private sector would be minimal.

Unfortunately, false murder convictions in court are > than .25 of 1% that Scalia and Marquis proffer and appear to approach 8% if the numbers are recalculated in a proper statistical manner.

I don't know where you are getting your statistics ("appear to approach 8%"), have no idea what you mean by "false murder convictions" (the conviction of a defendant who is demonstrably factually innocent? or are we just talking about a defendant who is convicted, with his or her lawyers saying later that the government failed to disclose one or more pieces of evidence that might have helped?), and am not at all sure I understand what is meant by "recalculated in a proper manner."

I suspect the percenatage is higher for prosecutorial misconduct, negligence, and lying in court also. It would be an interesting study.

Depends what you mean by "interesting." I "suspect" that the kind of study you're contemplating would be colored by the preconceptions and biases of the person conducting it.

It's also worth comment that if a prosecutor says stuff in court that demonstrates that's inaccurate and demonstrates that he or she either (1) is making stuff up or (2) is saying stuff without knowing or particularly caring whether he or she knows what he or she is talking about -- even if the statements are inconsequential and don't have any effect on the outcome of the case -- the prosecutor's name with that judge, and soon enough with the other judges in the courthouse, will be mud. Even if the prosecutor never faces official professional disciplinary proceedings, that's a major reason why prosecutors are supposed to behave differently than regular lawyers in private practice (and usually do). In addition to the fact that they're supposed to be pursuing a higher calling than just winning the case, they are also acutely aware that they (and their offices) appear before the same courts constantly and that they are putting not only their good names and reputations on the line but that of their offices and their professional colleagues. Prosecutors' offices have to be acutely aware, and typically are, that misbehavior by a couple of cowboys on staff will destroy the entire office's credibility with the court for years. (Look at what's happened in the federal courts in DC after the Ted Stevens case; the judge there, who I understand is close friends with Attorney General Holder, is now going to assume that prosecutors from the Department of Justice can't be trusted to know what they're doing or talking about until proven otherwise over a very long time.)

"My point was that the prosecutor in question would have to actually be convicted before they lost immunity."

How exactly could they get convicted if they haven't lost immunity yet? The whole point of immunity is that you can't even be brought to court, much less be convicted, when you have it. And a word of advice: Never bring up Law & Order when talking about real world law. It's a fictional TV show. Watching it teaches you nothing about how DAs or cops operate and less about the law. Believe me, this is coming from someone who's worked in NYC DA offices.

They currently retain immunity to civil suit EVEN IF THEY ARE CONVICTED of suborning perjury.

Actually I'd be ok with the bright line being EITHER conviction or a Bar reprimand.

"How exactly could they get convicted if they haven't lost immunity yet?"

I was referring to the immunity from civil suit. I don't believe a prosecutor is immune from criminal prosecution for a crime committed in the course of a prosecution.

For instance, if a prosecutor tells a defendant, after a trial has started, "Confess and switch your plea to guilty, or I'll murder your family," he would not be immune against prosecution for extortion. (He's getting something of value -- a guilty plea in a difficult case, thus improving his performance stats -- by making a threat.)

Oh, and it's worth mentioning -- in the case I just described of an extorted plea, the prosecutor would be guilty of extortion even if the defendant was actually guilty.

In any case, the point is that the prosecutor is always vulnerable to being prosecuted for actual criminal conduct; and if criminal conduct is proven in court, they should lose the immunity shield against civil suit.

I could also go along with Degsme's suggestion that even a formal reprimand by the bar might be an acceptable indication that the prosecutor has transgressed the standards they are required to uphold in order to merit immunity.

Sully (prosecutor?):

muchless out right conviction of prosecutors perjurying themselves in court. You are being ridiculous in your stance:

• That such an investigative body exists for prosecutorial misconduct. It may exist; but, it has rarely taken action.
• That the Attorney Grievance Commissions has the power, the will and the capacity to discipline prosecutors.
• That there is historical evidence of such discipline occurring. There isn't.

What is interesting is where this case is coming out of with regard to court systems. 8th district, a bastion for Federalists and hardly defendant friendly with regard to criminals or plaintiffs going after the Law. What is also interesting is your use of "criminal defendants" in describing the two plaintifffs who are suing the prosecutors for wrongful conviction. It must be tough to let go of that ivory tower image of Law and Order when it comes to Prosecutors. The case was reversed (?) so why not give them the respect of at least calling them plantiffs or citizens and let go of the prejudices.

Interestingly enough, the Cato Institute (a bastion of liberalism) in conjunction with the ACLU, and the National Defense Lawyers, have written an amici curiae (<link>) in support of the two plaintiffs, in opposition to the prosecutor arguments of immunity, and also refuting your stance that prosecutors face the sword of Damocles sanctions you purport to be in existyance. The three are rather strange bed fellows and often times find themselves on opposing ends. Other citations:

• Page 36, 3. "16% of all capital cases are reversed on appeal (after several years [me]) due to Prosecutorial Misconduct which tends to prove prosecutors are not sufficiently deterred." "A Broken System; Error Rates in Capital Cases" 2000, James Liebman
• Many Prosecutors accused of Prosecutorial Misconduct are repeat offenders. The California Justice Commission identified 20 of 30 such repeat offenders of the same offense out of 347 decisons. The issue appears to be a lack of transparency as the Prosecutor is typically not named in the decision.
• 14 of 74 Bronx prosecutors were found to have committed prosecutorial misconduct and cited. Andrea Elliot, "Prosecutors Not Penalized," NYT December 17, 2003
• "While individual prosecutor's office, unlike Bar committees, may have the resources or the knowledge to investigate or discipline, they have not demonstrated the will. Altough amici argue that prosecutor's offices often have the internal mechanisms for discipline, Nat'l Assoc. of AUSA, they cite no specific examples other tha the Department of Justice Office of Professional Responsibility. And compelling evidence suggests otherwise. The New York Task Force and the the California Justice Commission found that prosecutor's offices in their respective states lacked consistent or transparent internal policies for attorney discipline. <link> "Task Force on Wrongful Convictions" New York State Bar, April 2009
• A 1999 Chicago Tribune study found out of 381 nation wide reversals since 1963, (67 carried the death penalty) one 1 prosecutor was ever fired only to be reinstated with back pay, another received a 30 day suspension, and a 3rd had their license suspended for 59 days. "The Verdict: Dishonor." Chicago Tribune, January 11, 1999;
• "Who Is Keeping the Gate, What Do We do When Prosecutors Breach The Ethical Responsibilities They have Swore to Uphold" Shelby Moore . . . a study of all reported cases of misconduct only 27 cases were disciplined for misconduct
• "Wrongful Convictions; It is Time to Take Prosecution Discipline Seriously;" Ellen Yarsoshefsky 2004 cites hundreds of caes of misconduct without resulting discipline.
• "Disciplinary Sanctions Against Prosecutors for for Brady Violations: A Paper Tiger;" Richard Rosen, Only nine cases of discipline for Brady-type violations sought and only 6 imposed.
• 10 years later and only 7 more cases where discipline was sought added in an update to Rosen's research; "No Wrong Without a Remedy;" Jeffrey Weeks 1997
• "The Flipside of A Fair Trial;" Between 1980-1999 the Chicago Tribune could find no instances of prosecutors being internally disciplined or facing discipline in Cook County even though it did find multiple instances of prosecutors lying, cheating or spinning out of control
• In Michigan, one attorney abandons ~500 cases, steals $thousands in retainers and fees, fails to properly prepare for trial and in one case admits to it in COA, has an exparte conversation with judge and prosecutor and lies about client, is convicted of possession of cocaine, is on trial, is on trial for contributing to the death of another by supplying heroin, is found in a hotel room high on drugs while out on bond. Suspended for 2 years by the Grievance Commission. Now that is a real slap on the hand . . .

The American Bar Association, other associations, and the states have no interest in disciplining attorneys or prosecutors for misconduct. The references and citations of which there are many more make my point and provide a foundation (other than an opinion) for my statements. I suggest you google the percentages of wrongfully convicted and sentenced to death. Use Marquis and Scalia and you will eventually find it and Scalia/Marquis's misuse of statistics (prosecutorial fallacy?) to make their claim. I am not going to be your research assistant here again.

There is another guild, so to speak, facing similar problems as what the ABA and other legal associations face. The American Medical Association also has issues with a percentage of doctors who are repeat offenders and doctors overall who are guilty of malpractice and are not disciplined. The issue can be in the ABA and the AMA hands if they choose to take action, which historically (as shown for atorneys), they have not done so. To grant attorneys complete immunity, I believe is a bridge to far especially in this case. 25 years and justice finally caught up with them.

If you care to continue this conversation with me, I expect you to return with something more than just an opinion which has no foundation to it. It may work for you in court; but, it will certainly not work here.