Prosecutorial Immunity: Checkmate

There are rules of fair play in criminal cases, and one of the most important ones is: the prosecutors must give the defense any evidence that is favorable to the person accused and material to the question of whether or not that person is guilty. In other words, it is cheating for prosecutors to hide evidence that would help prove that the accused is not guilty. The bottom line is we don’t want prosecutors focusing on winning cases at the expense of innocent people getting convicted. But there’s a glitch. When prosecutors are caught cheating by breaking this rule – even with intentional, egregious, outrageous cheating – they are shielded from most consequences by what is known as prosecutorial immunity. As you might imagine, for the unethical prosecutors out there, the protection of prosecutorial immunity destroys any incentive to play by the rules.

Let me tell you about a Supreme Court case to show you how prosecutorial immunity works. John Thompson spent 18 years in prison, despite his innocence. He endured 14 years on the isolation of death row. He was weeks from his execution when his lawyers learned that prosecutors had hidden evidence showing that he was really innocent. . . really convincing evidence of innocence, like blood left at the scene by the perpetrator that did not match Mr. Thompson. A jury was so outraged by the prosecutors’ lies and trickery that it awarded Mr. Thompson $14 million in damages for his horrific ordeal. But the Supreme Court reversed the judgment and found for the defendant prosecutors. Justice Clarence Thomas, who wrote for the majority, conceded, “The role of a prosecutor is to see that justice is done. . . . By their own admission, the prosecutors who tried Thompson’s [case] failed to carry out that responsibility.” Still, the court reversed the judgment because it found that Mr. Thompson had only proved that the prosecutors broke the rules in his own case. To get beyond prosecutorial immunity, according to the Court, he had to show a pattern of misconduct by the whole prosecutors’ office. And so the prosecutors were off the hook for the years they spent cheating and lying to keep an innocent man behind bars.

Without consequences, that same New Orleans prosecutor’s office railroaded innocent man after innocent man. Louisiana courts have overturned at least 36 convictions as a result of the misconduct of the office – and those are just the cases where prosecutors’ misconduct was actually uncovered. In another case involving another unethical Louisiana prosecutor, Loevy & Loevy client Glenn Ford was framed and spent just shy of 30 years on death row before his innocence was revealed. He died of lung cancer shortly after his release from prison. Shielded by prosecutorial immunity, prosecutor Marty Stroud was actually able to go on 60 minutes and admit that his office played a role in keeping Mr. Ford wrongfully imprisoned. Mr. Stroud openly admitted that he failed to speak up about Ford’s wrongful conviction: “I think my failure to say something can only be described as cowardice. I was a coward. . . .I was arrogant, narcissistic, caught up in the culture of winning.” But Stroud’s belated acknowledgement of responsibility did not help Mr. Ford, who before he died received only $20 for a bus ride home as compensation for his three decades in prison.

I could go on and on with tragic stories of innocent people, rights violated, and prosecutorial immunity allowing unethical prosecutors get away with murder. When prosecutors can cheat without consequences, there are always going to be some who decide that winning cases matters more than protecting the innocent. But for the innocent who spend years or decades in prison or on death row for crimes they did not commit, it’s not a game.

Notice that official misconduct is a contributing factor in almost half of the wrongful convictions.


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