>> Thursday, November 05, 2009
You may remember, in one of the worst slippery slope arguments ever, school district lawyers objecting to the Supreme Court's salutary decision in Safford School District v. Redding because it might inhibit school administrators from conducting humiliating searches of young women based on pitifully weak evidence that they have committed trivial offenses. Uh, I think that was the point! Dahlia Lithwick identifies something similar in yesterday's oral arguments from lawyers arguing that prosecutors who locked two innocent people up for 25 years based on willfully fabricated evidence should have absolute immunity from suit:
Katyal clarifies that "absolute immunity doesn't exist to protect bad apples. It reflects a larger interest in protecting judicial information coming into the judicial process." He says, "If prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence."
But Sotomayor retorts that you want a prosecutor to "flinch when he suspects evidence is perjured or fabricated." In fact you want him to do more than just flinch. You want him to stop. She adds that the two prosecutors in this case were never disciplined for their conduct.
Attempting to make prosecutors liable is, admittedly, a very knotty problem, for reasons the article states well. But to the extent that prosecutors will be inhibited from knowingly using illegal evidence, the argument against absolute immunity actually becomes pretty straightforward.