Not Above the Law: Thoughts on Prosecutorial Immunity and Public Trust By Jennifer P. Noble, Esq. Recently, our national discourse has been flooded with discussion of criminal justice reform. Naturally, questions about prosecutorial power and its limitations have followed. The public should expect that prosecutors Not Above hold themselves to the highest of ethical standards. When prosecutors fail to meet this expectation, the Law: intentionally or unintentionally, they risk compromising the integrity of criminal convictions, eroding public trust, and increasing the anguish of victims who have put their faith in the criminal justice system. Much of the current debate Thoughts on regarding prosecutors reveals a common misconception that they have unchecked, unlimited power. Additionally, a developing narrative suggests that wrongful convictions primarily occur due to prosecutorial misconduct by officials Prosecutorial who believe they are above the law—but the numbers say otherwise. Prosecutors who violate their oath by acting unethically can and should be held accountable. And Nevada’s leading prosecutors are continuously striving to Immunity and improve transparency, ensure accountability, and promote best practices. Origin and Purpose of Prosecutorial Immunity Public Trust th From the Middle Ages through the 19 century, BY JENNIFER P. NOBLE, ESQ. prosecutions in England were conducted by private citizens. Communities primarily relied on a victim’s friends and family to hire an attorney to pursue a prosecution. Often, this meant that access to justice was limited by economic status. “My job as a prosecutor is to do justice. Private prosecutors for hire could seek imprisonment on their And justice is served when a guilty man is clients’ behalf, but they could also be sued by the people convicted and an innocent man is not.” they prosecuted, for any reason. Soon after establishment of — U.S. Supreme Court Justice Sonia Sotomayor the American colonies, public prosecutions began to replace the private system. Prosecutors came to be viewed as owing a fiduciary duty to the public at large, rather than as attorneys functioning as agents of an individual victim.1 The U.S. Supreme Court was mindful of this shift when it considered the application of 42 U.S.C. 1983 civil suits to prosecutors in Imbler v. Pachtman, 424 U.S. 409 (1976). The Imbler Court explained that prosecutorial immunity is favored based upon long-established public policy that protected judges and grand jurors from civil suit Nevada Lawyer Nevada • July 2021 16 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, courts may unable to exercise impartial, independent apply qualified immunity. 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 jury 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 judges 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 plaintiff’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 Court 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 law enforcement 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 trial could and securing an indictment; breathing room to make reasonable lead to fundamentally unfair results. But • Preservation of evidence; 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 witness immunity. Examples of actions falling without civil redress. Quoting Judge 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 • July 2021 17 CONTINUED FROM PAGE 17 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 suspect; prosecutorial misconduct has not been • Destroying exculpatory evidence; the Law: to blame. According to the Innocence • Ordering a warrantless arrest; and Project, the top contributing causes of • Advising police 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 laws 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 North Carolina instead to see that justice is done and the Working to Increase district attorney Michael Nifong became constitution 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 Bar 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