16 July 2021 • Immunity and Immunity Prosecutorial

Not A And justiceisservedwhenaguiltyman “My jobasaprosecutor istodojustice. Thoughts on convicted andaninnocentmanisnot.” Public Trust —U.S.SupremeCourtJusticeSoniaSotomayor the : bo BY JENNIFER P. NOBLE, ESQ. ve ve

improve transparency, ensureaccountability, andpromote Nevada’s leadingprosecutorsarecontinuouslystrivingto unethically canandshouldbeheldaccountable. And otherwise. Prosecutorswhoviolatetheiroathbyacting who believetheyareabovethelaw—butnumberssay primarily occurduetoprosecutorialmisconductbyofficials a developingnarrativesuggeststhatwrongfulconvictions that theyhaveunchecked,unlimitedpower. Additionally, regarding prosecutorsrevealsacommonmisconception in thecriminaljusticesystem.Muchofcurrentdebate increasing theanguishofvictimswhohaveputtheirfaith integrity ofcriminalconvictions,erodingpublictrust,and intentionally orunintentionally, theyriskcompromisingthe standards. hold themselves ofethical tothehighest The publicshouldexpect thatprosecutors have followed. power and its limitations about prosecutorial Naturally, reform. discussion ofcriminaljustice questions Recently, hasbeenfloodedwith ournationaldiscourse policy thatprotectedjudgesandgrandjurorsfromcivilsuit immunity isfavoredbaseduponlong-establishedpublic Imbler v. Pachtman the applicationof42U.S.C.1983civilsuitstoprosecutorsin Supreme Courtwasmindfulofthisshiftwhenitconsidered functioning asagentsofanindividualvictim. a fiduciary duty to the public at large, rather than as attorneys the privatesystem.Prosecutorscametobeviewedasowing the American colonies,publicprosecutionsbegantoreplace they prosecuted,foranyreason.Soonafterestablishmentof clients’ behalf,buttheycouldalsobesuedbythepeople Private prosecutors for hire could seek imprisonment on their meant thataccesstojusticewaslimitedbyeconomicstatus. family tohireanattorneypursueaprosecution.Often,this Communities primarilyreliedonavictim’s friendsand prosecutions inEnglandwereconductedbyprivatecitizens. Immunity of Prosecutorial Origin and Purpose best practices. By Jennifer P. Noble,Esq. Not Above theLaw: Thoughts onProsecutorial ImmunityandPublic Trust When prosecutorsfailtomeetthisexpectation, The From theMiddle Ages throughthe19 Imbler Courtexplainedthatprosecutorial , 424U.S.409(1976). th century, 1 The U.S. Not Above the Law: Thoughts on Prosecutorial Immunity and Public Trust

By Jennifer P. Noble, Esq.

when they acted in the scope of their liability, rather than to “subject those who But when prosecutors act outside their duties. It recognized that even the most try to do their duty to the constant dread advocacy function, they are not entitled conscientious prosecutors would be of retaliation.” Id. at 429. to absolute immunity. Instead, may unable to exercise impartial, independent apply . Under this form judgment if they had to worry about the Forms and Limitations of immunity, prosecutors are not liable possibility of civil suit whenever a of Prosecutorial Immunity for civil damages for performance of found a defendant not guilty: discretionary functions only Courts may find that The common-law immunity if they have not violated a prosecutor’s actions of a prosecutor is based upon clearly established statutory are protected by either Courts try to the same considerations that or constitutional rights. qualified or absolute balance the underlie the common-law Buckley v. Fitzsimmons, immunity. In deciding immunity of and competing 509 U.S. 259, 268 (1993). which type of immunity grand jurors acting within the interests of a Essentially, in deciding applies, courts use what is scope of their duties. These whether a prosecutor may commonly known as the ’s right to include concern that harassment successfully raise a defense functional approach. This recover damages by unfounded litigation would of qualified immunity, approach focuses on the cause a deflection of the versus the risk the relevant question is: character of the challenged prosecutor’s energies from his that prosecutors how would a reasonable conduct. public duties, and the possibility prosecutor act? Absolute immunity will be so worried that he would shade his Courts try to balance applies when prosecutors about personal decisions instead of exercising the competing interests perform an advocacy the independence of judgment monetary liability of a plaintiff’s right to function, insulating required by his public trust. and harassing recover damages versus them from civil liability. litigation that it the risk that prosecutors Imbler, 424 U.S. 409 at 423. Courts have found that will be so worried about a prosecutor’s advocacy impedes their personal monetary liability The Imbler also recognized function encompasses ability to perform and harassing litigation prosecutors are often required to act a variety of activities, their duties. that it impedes their ability swiftly, under considerable pressure, including: to perform their duties. and upon information received from • The decision In determining whether and third parties. whether to file charges; qualified immunity Application of civil liability based on • Presenting a case to the grand jury applies, courts generally allow prosecutors 20/20 hindsight years after could and securing an ; breathing room to make reasonable lead to fundamentally unfair results. But • Preservation of ; mistakes about open legal questions. the court also recognized that application • Plea bargaining; Courts have found numerous acts are of absolute immunity could leave a • Jury selection; entitled to qualified, rather than absolute, genuinely wronged criminal defendant • Securing a material immunity. Examples of actions falling without civil redress. Quoting warrant; and CONTINUED ON PAGE 18 Learned Hand, it recognized the lesser of • Seeking increased bail. two evils was to limit a prosecutor’s civil

Nevada Lawyer Nevada

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outside a prosecutor’s advocacy role sometimes cite wrongful convictions include: as a basis to overturn Imbler and • Participating in an illegal search; Not Above its progeny. However, in the vast • Holding a press conference; majority of overturned convictions, • Questioning a ; has not been • Destroying ; the Law: to blame. According to the Innocence • Ordering a warrantless arrest; and Project, the top contributing causes of • Advising during the course wrongful convictions are eyewitness of an investigation. Thoughts on misidentification, faulty forensics, false confessions, and false jailhouse informant 3 The doctrines of absolute and Prosecutorial testimony. This is particularly true qualified immunity do not allow where exoneration has been the result 4 prosecutors to evade responsibility for Immunity and of advances in DNA technology. And misconduct. Instead, they are narrowly according to a study conducted by the tailored safeguards designed to preserve Center for Public Integrity, between a prosecutor’s independent judgment. Public Trust 1970 and 2003, prosecutorial misconduct Prosecutors who abuse their power led to dismissal, sentence reduction, or or violate the law are still subject to accountability. Some have called for the reversal in only about 2,000 cases. For criminal prosecution under the of elimination of prosecutorial immunity some context, in 2007 alone, there were their jurisdiction, and by their state ethics altogether. But leaving prosecutors more than 2 million felony convictions boards. unconditionally vulnerable to civil in the U.S. Accepting CPI’s statistics, lawsuits would likely have unforeseen this means that in a 33-year period, 99.73 Misconduct and Consequences: and unintended consequences. percent of all felony convictions were A prosecutor’s primary focus unrelated to prosecutorial misconduct.5 The Duke Lacrosse Case must not be to secure a conviction, but In 2006, a former instead to see that justice is done and the Working to Increase Michael Nifong became upheld. If charging decisions Public Confidence the subject of national attention due to were no longer protected by absolute his unethical conduct while investigating immunity, prosecutorial focus would Across the state, Nevada’s district sexual assaults allegedly committed inevitably shift to the very distracting attorneys are taking proactive steps by several Duke University lacrosse possibility of civil to improve public players. The North Carolina State suit and personal confidence in the justice system. For filed an ethics complaint against Nifong liability. This would The doctrines of absolute for more than 50 highly questionable be true regardless of example, the Nevada statements he made to the press during whether a prosecutor and qualified immunity District Attorneys the pendency of the investigation. decided to file do not allow prosecutors Association (NDAA), Nifong’s ethical gaffes included telling charges or declined to evade responsibility an organization consisting of all 17 the press that the defendants would not to do so; either for misconduct. Instead, need an attorney if they had not done way, dissatisfied elected Nevada district anything wrong, making inaccurate defendants or alleged they are narrowly tailored attorneys, voluntarily insinuations about forensic testing, victims would safeguards designed to adopted a uniform and stating his personal opinions about have little reason preserve a prosecutor’s policy regarding the use of jailhouse the players’ guilt. He also disparaged not to pursue civil independent judgment. the alleged victim, commenting that damages. Similarly, informants and “probably an exotic dancer would not be prosecutors acting in supported your first choice for unprotected sex.”2 good faith to provide requiring the electronic As a result of his actions, Nifong was police officers with constitutionally sound recording of interrogations. The NDAA removed from the case, found guilty of guidance during an investigation would has also appointed a Best Practices criminal contempt, and lost his license to be perpetually intimidated by looming Subcommittee that continuously works practice law altogether. threats of civil litigation. The result would to ensure that district attorneys across cripple the justice system, resulting in a Nevada are provided with evidence-based Policy Considerations and disservice to victims and offenders alike. recommendations designed to promote transparency, efficiency, and fairness. Unintended Consequences Contributing Factors And in larger offices, such as the Washoe Nevada Lawyer Nevada Bad actors like Nifong do substantial, County and Clark County District • lasting harm to the public’s confidence in to Unjust Outcomes Attorney’s offices, Conviction Integrity prosecutors, and to the justice system in As our national conversation Units have been established to review general. Their actions erode the public’s regarding reform credible claims of .

July 2021 confidence in criminal convictions, continues, critics of the current Prosecutorial immunity should raising valid concerns about prosecutorial prosecutorial immunity model have a continuing place in our national 18 5. 4. 3. 2. 1. ENDNOTES: communities. accountability whileprotectingour enhance transparency, andensure for waystoimprovetheirpractice, prosecutors willcontinuetolook move intothefuture,Nevada’s frivolous civillitigation. As we must beunencumberedbyfearof pursue justoutcomes,prosecutors access tojusticeforall. To effectively conversation aboutprovidingequal Volume 3,Number4(2018). Training ResearchInstituteJournal, Oaths Prosecutors UpholdTheirSworn Harker, Timothy, Volume 44.January1,2015. Exonerations of WrongfulConvictionsandRightful the Prosecutors:TheRealCauses Lamparello, and Adam Charles E.MacLean,JamesBerles, conviction innocenceproject.org/causes-wrongful- of WrongfulConviction, The InnocenceProject, Report Van KirkMcCombsII, Am. U.L.Rev805(2020). A FiduciaryTheoryofProsecution Bruce A. GreenandRebeccaRoiphe, prosecutors. efforts onbehalfof Award forheradvocacy Attorneys’ William J.Raggio Council forProsecuting received theNevada Advisory Association, andin2019she District Attorneys Nevada a legislativeliaisonforthe law. Sheisalso practices appellate Office, whereshe District Attorney’s the Washoe County district attorneyin is achiefdeputy JENNIFER P. NOBLE , National Attorneys General . ABAEERLYR 351 (2007). . , HofstraLawReview, The Nation’s 2007 Annual

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U ) n i o n 19 July 2021 • Nevada Lawyer 3