State-Power Piracy - under colour of official right

A work-in-progress look at existing remedies and deterrents for state-power piracy with the view to possible consolidation into a template for a bill, for adaptation and enactment, which would make state-power piracy a serious criminal offence around the world, while at the same time ensuring judicial independence .

 “It is better to invade the judicial power of the States than permit it to invade, strike down, and destroy the civil rights of citizens, A judicial power perverted to such uses should be speedily invaded. ... And if an officer shall intentionally deprive a citizen of a right, knowing him to be entitled to it, then he is guilty of a wilful wrong which deserves punishment.” Spoken in defence of the U.S. Civil Rights Act 1866.

The abuse of state power by officials, such as police, judges and prosecutors, for private ends - whether for financial gain, career advancement, settling scores, etc., - is a growing trend in legal systems that are unaccountable to their societies. Such abuse of power, by those who pirate the procedures and power of the legal system, very often goes unpunished. It can lead to a tyranny of the corrupt that sees the innocent jailed, families torn apart, livelihoods ruined, the truth perverted and, in fact, entire nations retarded.

There is, thus, a great need to consolidate legislation and common law (where applicable) that already exists in many jurisdictions – such as the law covering bribery, extortion, citizen rights and protection, etc. - and to enact law that is more specific to accountability in legal systems.

Just one example of the destructive effect of legal system corruption is the case of a poor farming family in Indramayu, West Java, Indonesia, that has been reduced to living in a goat shed because of heartless extortion by the so-called judicial mafia there. It is alleged that after farmer, Kadana, chanced on the aftermath of a brutal murder, Nana Sudana, a young police officer of the Indramayu precinct, systematically extorted money out the family, which has six young children. In all the farmer's wife was obliged to pay $1,590, which included $670 so that the police would not beat her husband up, $335 for the prosecutors office and $17 each time Kadana was visited by his family in prison. To raise this money, Kadana's wife was forced to sell the family home, leaving the family with little option but to take up residence in a leaking, malodorous goat shed. To add destructive insult to damaging injury, the Indramayu District Court found Kadana guilty of murder, sentencing him to seven years in jail. 

Kadana had the temerity to call in the Judicial Mafia Eradication Task Force, something which usually results in corrupt public officers hounding the complainant. However, for what it was worth, his family was offered protection and the Witness and Victim Protection Agency was contacted. Furthermore, Police Chief Nasri Wiharto then confirmed the rogue officer had been arrested and charged with violating Article 378 of the Criminal Code on extortion, which carries a maximum sentence of four years in prison. Yet what the 'rogue' officer did was not at all unusual. In fact, the U.N., Amnesty International and the Asian Development Bank have all reported that in the Indonesian legal system detainees are routinely tortured for confessions, sexual favours are extracted from female suspects, and bribes are regularly demanded by corrupt judges, prosecutors and police. Worse still, since Indonesia still has the death penalty, it is perfectly conceivable that failure to pay an extorted bribe could lead and may well have led to the innocent being executed.

Piracy, but worse

Thus, public officials are known to perpetrate “criminal acts of violence, detention, rape, or depredation committed for private ends”, which coincidentally, according to the United Nations Convention on the Law of the Sea of 1982, also constitute maritime piracy when carried out by “the crew or the passengers of a private ship or aircraft that is directed on the high seas against another ship, aircraft, or against persons or property on board a ship or aircraft.” Under Title 18 of the United States Code, Chapter 81 – Piracy and Privateering – the penalty is life imprisonment. 

In piracy there is the element of illegal operation in defiance of the official system, which is also the case where police, judges, prosecutors, immigration officials, etc. abuse state power in their own interests.  However, such public officers actually behave worse than pirates in that their criminal acts are performed under the guise of official respectability and in betrayal of public trust.

The role of the prosecutor, for example, should be to find justice and serve truth by working equally for the defence and prosecution. However, once the prosecutorial ethic is lost, ambition and mendacity can become the driving factors, as prosecutions simply serve as a means of building careers and settling personal scores. Because state power is concentrated in prosecutors' hands – some of whom, ironically, are contemptuous of the rule of law and guilty of egregious misconduct – there must be mechanisms to bring them to account. Since society places great trust in them, it is essential that where they undermine the rule of law through obtaining convictions by violating the law, withholding exculpatory evidence, suborning perjury, pursuing cases known to be false, etc., they are prosecuted, tried fairly and punished in a way that is commensurate with that trust.

Reference has been made to the situation in the developing world above; but there are many cases of state-power piracy documented in the U.S. too, for example: Randy Weaver, Kenneth Michael Trentadue, Leona Helmsley, Violet, Cheryl and Gerald Amirault , child sex abuse cases in Wenatchee, Faustino Rico Toro, Vito Giacalone, Patrick Halliman and Loren Pogue, as well as numerous cases of prosecutorial misconduct reported by the Pittsburgh Post-Gazette in 1998. The particularly infamous prosecution of Lyndon H. LaRouche, Jr. and his associates exhibits a number of areas of prosecutorial misconduct: indictment without probable cause; failure to promptly release information that would exonerate a person under indictment; intentional misleading of a court as to the guilt of a person; intentional or knowing misstatement of evidence, etc. Thus, scores of innocent people have been the victims of wilful, purposeful, intentional frame-ups by public officers who have sometimes been assisted by criminals.

Protecting the citizen from perversion of justice

In the United States, the Citizens Protection Bill, albeit opposed by the Department of Justice and its advocates, as well as Attorney General Janet Reno, was passed on October 21, 1998, by Congress as Section 801 of the Omnibus Appropriations bill. The Act curtails blatant attempts by the US Department of Justice to hold its prosecutors above the laws of ethical conduct which apply to all lawyers and, it thus, reaffirms the basic principle that all attorneys are answerable to the high court of the state or states by which they have been granted a licence to practise law. The Act sets a very useful precedent, one which could be built on to ensure police and judges also do not act as if they are above the law.

Below are some pertinent excerpts from the Citizens Protection Act of 1998:

• Ethical standards for attorneys for the government Section 530B.
• (a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.
• Punishable conduct
• Section 821. (a) Violations- The Attorney General shall establish, by plain rule, that it shall be punishable conduct for any Department of Justice employee to-
• (1) in the absence of probable cause seek the indictment of any person;
• (2) fail promptly to release information that would exonerate a person under indictment;
• (3) intentionally mislead a court as to the guilt of any person;
• (4) intentionally or knowingly misstate evidence;
• (5) intentionally or knowingly alter evidence;
• (6) attempt to influence or color a witness' testimony;
• (7) act to frustrate or impede a defendant's right to discovery;
• (8) offer or provide sexual activities to any government witness or potential witness;
• (9) leak or otherwise improperly disseminate information to any person during an investigation; or
• (10) engage in conduct that discredits the Department.

Extortion – under colour of official right

While extortion is usually practised by organised crime gangs, as we have seen above, in some countries judges, police and prosecutors practise it too. Indeed, under the Common Law it is specifically a misdemeanour consisting of the unlawful taking of money by a government officer. It results from the misuse of the power that derives from a public officer being 'clothed' by the law. Statutes have broadened this common-law definition. For example, under Title 18, Part I, Chapter 95, § 1951 of the United States Code, extortion is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under colour of official right”. There is an element of coercion and the actual obtaining of money or property may not be required to commit the offence. The offence is serious and in some jurisdictions could attract a maximum penalty of imprisonment for life. 

The essence of the crime of extortion by a public officer is the oppressive use of official position to obtain money. The victim, while consenting to payment, rather than doing so voluntarily, is yielding to official authority. The officer might demand a fee not allowed by law and accept it under the pretence of performing an official duty. An example would be a judge who delays issuing judgement in a case, which would release a defendant from jail, simply to extract a fee  Another is where a judge gives a convicted defendant the choice of paying no fee and being sentenced to two years in prison, or paying a fee and being convicted to one. Threatening to convict an innocent person unless a judge receives a payment is, of course, another example of extortion. In general the victim must believe that he or she is under an obligation to pay some amount; but it is not clear whether the victim must believe the fee to be properly sanctioned by the court/state. Furthermore, extortion may be committed by an officer taking a fee for services that are not performed. The service refrained from must be one within the official capacity of the officer in order to constitute extortion.

Section 346 of the Canadian Criminal Code, R.S.C. 1985, c. C-46 sets out the offence of extortion: 346. (1) “Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.” Cases in Canadian courts have confirmed that the word 'anything' includes sexual favours, the threats do not need to be threats of violence, the threat does not have to induce fear in the victim, nothing needs to be successfully extorted – the threat is enough, the accused does not need to be the person who carries out the threatened act, the threatened act need not be unlawful, belief that the thing being demanded is rightfully the accused's is no excuse; but the threat must be deemed to be unreasonable under the circumstances and with the potential to overwhelm a person's free choice, compelling that person to act in the manner dictated by the threat.

Statutes governing extortion in some countries hold that a threat accompanied by the intent to acquire the victim's property is sufficient to establish the crime, while in others they require that the property must actually be acquired as a result of the threat. Extortion by officials is treated similarly. Some statutes hold that the crime occurs when there is a meeting of the minds between the officer and the party from whom the money is exacted.

Bribery – peddling and purchasing influence

In general, bribery of a public official can be defined as: “the offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of his or her public or legal duties.” The element must exist of seeking undue influence over the voluntary actions of a public official by means of a reward (something of value). Thus, bribery necessarily creates a conflict of interest for the public official: to accommodate the interests of the bribing party, or to properly fulfil the responsibilities of his/her public office. Generally corrupt intent must be proved, as well as a connection between the reward and the act or omission, past or present, of the official. That the corrupt act was not harmful to the public interest is no defence. Both the bribed and the briber may be prosecuted separately, which is why the distinction between bribery and extortion in the context of legal system officials is so important, as we shall see.

The British Bribery Act of 2010, which recently came into force, defines the offences of bribing another person and being bribed as:

• 1 Offences of bribing another person
• (1) A person (“P”) is guilty of an offence if either of the following cases applies.
• (2) Case 1 is where—(a) P offers, promises or gives a financial or other advantage to anotherperson, and(b) P intends the advantage—(i) to induce a person to perform improperly a relevant function oractivity, or(ii) to reward a person for the improper performance of such afunction or activity.
• (3) Case 2 is where—(a) P offers, promises or gives a financial or other advantage to anotherperson, and(b) P knows or believes that the acceptance of the advantage would itselfconstitute the improper performance of a relevant function or activity.
• 2 Offences relating to being bribed
• (1) A person (“R”) is guilty of an offence if any of the following cases applies.
• (2) Case 3 is where R requests, agrees to receive or accepts a financial or otheradvantage intending that, in consequence, a relevant function or activityshould be performed improperly (whether by R or another person).
• (3) Case 4 is where—(a) R requests, agrees to receive or accepts a financial or other advantage,and(b) the request, agreement or acceptance itself constitutes the improperperformance by R of a relevant function or activity.
• (4) Case 5 is where R requests, agrees to receive or accepts a financial or otheradvantage as a reward for the improper performance (whether by R or anotherperson) of a relevant function or activity.
• (5) Case 6 is where, in anticipation of or in consequence of R requesting, agreeingto receive or accepting a financial or other advantage, a relevant function oractivity is performed improperly—(a) by R, or(b) by another person at R’s request or with R’s assent or acquiescence.
• 11 Penalties
• (1) An individual guilty of an offence under section 1 or 2 is liable—
• (a) on summary conviction, to imprisonment for a term not exceeding 12months, or to a fine not exceeding the statutory maximum, or to both,
• (b) on conviction on indictment, to imprisonment for a term not exceeding10 years, or to a fine, or to both.

One particularly despicable case of judge corruption was that of Judge Thomas J. Maloney of Cook County Circuit Court in the U.S. He peddled his influence on a number of occasions; but was eventually sentenced to 15 years in prison. Most disgracefully of all, Judge Maloney, after accepting  $10,000 from a defendant, promptly sentenced him to death in response to an FBI investigation into judicial corruption, to cover up his judicial misconduct.

Bribery vs.  extortion

While both extortion and bribery agreements entail payments being made by a defendant to a judge (or, for that matter, police or prosecutors), the distinction between bribery and extortion is an important one, because one from whom something is extorted bears no culpability; but one who has bribed is guilty of a criminal offence just as the acceptor of the bribe is. In the former case, even in a corrupt legal system in which corrupt officials may close ranks, a whistleblower cannot be legitimately punished for revealing the extortion, although in practice he could well be punished for having the audacity to report a corrupt judge.

• Bribery consists of paying for better than fair treatment, i.e. the purchase of unjust leniency.
• Extortion consists of paying to avoid worse than fair treatment, i.e. the purchase of what is just or less unjust. 

Thus, the crucial issue is: what did the defendant expect in the absence of agreement (which may involve independently assessing the outcome and, thus, approach a quasi-retrial)? If the defendant expected unfair treatment unless he paid an amount, this amounts to extortion. However, if the defendant expected better than fair treatment in return for a payment, this amounts to bribery. In both cases, of course, a judge, in agreeing to receive money, is morally and legally reprehensible; but for the defendant, the latter case is by far the more repugnant.

However, in practice, things are not as black and white, with agreements often containing elements of both extortion and bribery. Indeed, such 'mixed' agreements, although they may not involve more money may, for various reasons, better serve the purpose of corrupt judges and even the defendant. The defendant may be prefer to bribe for better than fair treatment, rather than just have money extorted from him for just or less unjust treatment, simply because the former is easier to determine. That is, better than fair is easier to gauge than fair or less unfair treatment at a trial. Indeed, the extorting judge may also prefer an element of bribery in the mix as this reduces the chances that a dissatisfied defendant will testify against him. On the other hand too much leniency might arouse suspicions, but only where a judge fears scrutiny for corruption, in which case he may over-compensate and mete out a particularly harsh sentence instead. Thus a combination of extortion and bribery is preferred by corrupt judges where scrutiny is lax, but pure extortion where it is not, as it is less visible. 

These considerations change the culpability in such deals. The defendant, who fears unjust treatment if he fails to respond to extortion, may be compelled to accept a more than fair outcome in order to oblige the judge who wants an element of bribery in the deal, thus making him less morally culpable.

For a more detailed analysis of this see:  “The Twin Faces of Judicial Corruption: Extortion and Bribery” by Ian Ayres of Yale Law School.

Tortious redress

Applicable torts where a judge, prosecutor or police officer has acted corruptly include: abuse or misuse of power and abuse of process; but note that judges may be able to claim total immunity and prosecutors partial immunity.

Abuse or misuse of power and abuse of process

Malfeasance (doing an unlawful act) in office and oppression:

Abuse of power, in the form of "malfeasance in office" or "official misconduct", is knowingly performing an unlawful act, done in an official capacity, and which causes a loss to a third party.

Misfeasance (doing a lawful act in a wrongful manner) in public office:

Misfeasance in public office is a cause of action in the civil courts of England and Wales and some Commonwealth countries. It is an action against the holder of a public office basically alleging that the office-holder misused or abused his power in breach of his duty of care causing harm to the plaintiff.

Abuse of process:

A cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying facts, such as causing a summons, writ, warrant, mandate, or any other process to issue from a court in order to accomplish some purpose not intended by the law.

Judicial immunity

Section 1 of the Fourteenth Amendment to the US Constitution, which came into effect in 1868, made due process of law sacrosanct:

• “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This guarantee of due process under the Fourteenth Amendment of the US Constitution takes precedence. Accordingly in Randall v. Brigham - 74 U.S. (13 Wall.) 523, 535-36 – 1869, it was held that state judges possessing general powers were not liable “unless perhaps when the acts ... are done maliciously or corruptly.” However, one year after the passing of the Civil Rights Act 1871 this ruling was overturned. 

Sadly, today the “doctrine of judicial immunity”, as it has developed over the last three decades, certainly does deny citizens “the equal protection of laws” insofar as any redress for injuries, embarrassment and unjust imprisonment caused by errant judges is concerned. Worryingly, only in the judiciary - which has the power to deprive citizens of liberty, property and even life - do public officials have the licence to abuse power and disregard both the law and the Constitution with impunity.

The doctrine establishes, in conflict with the Constitution, that in the US a judge cannot be held liable for pecuniary damages for acts performed in the exercise of his or her judicial functions, providing he has jurisdiction over the matter before him. It matters not that the action a judge “took was in error, was done maliciously, or was in excess of his authority" (Stump v. Sparkman, 435 U.S. 349 – 1978: a judge had, in violation of basic principles of due process, ordered a 15-year-old girl to be sterilised). In fact, once it is determined that a judge was acting in his or her judicial capacity (i.e. that his act was judicial in nature) and was not performing an act expressly prohibited by law, absolute immunity applies "however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." (Ashelman v. Pope, 793 F.2d 1072, 1075  - 9th Cir. 1986). Judicial immunity is not, for instance, forfeited "by allegations that a judge conspired with one party to rule against another party: (Martinez v.Winner, 771 F.2d 424 - 10th Cir. 1985 and Moore v. Brewster, 96 F.3d 1240, 1244 - 9th Cir. 1996). However, the distinction in Lopez v. Vanderwater, 620 F.2d 1229 -7th Cir. 1980 should be noted. In that case the judge sentenced a tenant of one of his business associates to 240 days in prison for rent arrears. The Seventh Circuit found the judge immune for arraigning, convicting, and sentencing the tenant, but not for conducting the arrest and prosecution.

In Forrester v. White, 484 U.S. 219, 227 (1988) it was determined that absolute immunity for judicial officers "is justified and defined by the functions it protects and serves, not by the person to whom it attaches." The justification all too vehemently put forward is that such immunity ensures a fearless and independent judiciary; but, sadly, it also provides a carte blanche for abuse of power and corruption. The only grounds on which judicial immunity can possibly be justified is where three fundamental elements are extant to ensure due process is not curtailed and, thus, that a judge's improper conduct can be challenged: notice, a proper trial and a method of appeal. Yet, in the case of Stump v. Sparkman, the judge had authorized the irreversible sterilisation without notice to the girl, a hearing, or appointment of a guardian ad litem to represent the girl’s interests.

Aberrant Invention and the Civil Rights Acts

The English case of Floyd v. Barker - 77 Eng. Rep. 1305 - Star Chamber 1608 is often cited, quite erroneously, as being the basis of the U.S. judicial immunity doctrine. This case, in fact, was one of judicial independence, as it protected judges from criminal prosecution commenced by the monarch or his ministers, and had nothing to do with immunity from civil liability, which is the subject matter of the judicial immunity doctrine. 

There are, however, other good reasons why this doctrine can be seen as an aberrant invention: the judiciary's assertion that the doctrine is incorporated into the Civil Rights Act of 1871 is false, as Congress never intended to grant such immunity. There is plenty of evidence to show that Congress clearly intended to make all state officials, including judges, subject to this Act. During its passage through Congress, on three occasions, out of concern at the abuse of power by Confederate state officials, Congressmen clearly stated that state-court judges would not be able to claim immunity under the 1871 Act. Indeed, the Congressman who introduced the Act proclaimed it to be modelled on the Civil Rights Act of 1866, which had, in creating criminal penalties for anyone engaging in state-sponsored efforts to violate the civil rights of citizens, abolished judicial immunity from criminal prosecution. The 1871 Act went on to establish the right to sue for the civil remedy of damages in all instances where the 1866 Act offered a criminal penalty. 

Despite this, in Pierson v. Ray - 386 U.S. 547 – 1967, the Supreme Court ruled in defiance, that judicial immunity was “solidly established at common law”, that Congress had never intended that state-court judges should be subject to suit, and that the phrase “[e]very person.. shall be liable” in the Act somehow excludes judges.

Since all but the courts are bound by the Fourteenth Amendment, it is the very guardians of the Constitution who have conferred on themselves the right to violate it with impunity. This is major detraction from the rule of law under which the law should be supreme, such that none is above the law. By weakening due process in violation of the Constitution and removing societal accountability, the judiciary has, de jure, undermined the rule of law,

In England on the other hand

In Sirros v. Moore [1975] QB 118 at 136,  Lord Denning, Master of the Rolls, expressed the position on immunity as follows

• :“Every judge of the courts of this land from the highest to the lowest should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgment”, it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself; “If I do this, shall I be liable in damages?” So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action.”

Despite this, a claim may be brought against the Crown and a judge where the judicial act infringes a right enshrined in the European Convention on Human Rights and is either done in bad faith or in good faith where the right infringed relates to victims of arrest and detention. It also seems that the degree of judicial immunity does, nevertheless, vary with the status of the court.

Judicial immunity applies where the judge: (i) acts in the bona fide exercise of his office; and (ii) in the honest belief (though mistaken) that he has jurisdiction. In such circumstances, immunity is not lost because the judge was under some gross error or ignorance, or even because he was actuated by envy, hatred and malice.

In England judges may be charged with the following specific common law criminal offences (see also the Bribery Act 2010 above) regarding the misuse of power and corruption etc:

• Bribery of Judges or other judicial officers: Any judge, magistrate or other judicial officer who takes, any gift or reward to influence his behaviour, or for anything done, in the conduct of his office commits an offence at common law.
• Bribery of Public Officers: It is an offence at common law for a public officer to accept a bribe, as an inducement to act contrary to his duty or to show favour or forbear to show disfavour in the discharge of his duty.Misconduct in Public Office:
• (i) Oppression: A public officer commits the common law offence of oppression if, while exercising, or under colour of exercising, his office, he inflicts upon any person from an improper motive any bodily harm, imprisonment or injury other than extortion. The offence is not committed if the officer acted in good faith, in the belief that he had the legal right to do the act in question, and without any intention to act corruptly or oppressively.
• (ii) Breach of trust or fraud: Any public officer who commits a breach of trust or fraud in a matter affecting the public is guilty of an indictable offence at common law even though the sameconduct if in a private transaction would, as between individuals, have given rise only to a civil action.
• (iii) Neglect of duty by public officer.
• (iv) Refusal to serve in public office.

To preserve their independence judges, quite rightly, enjoy security of tenure. Under the Act of Settlement 1700, senior judges could only be removed following a motion by both Houses of Parliament. This, however, has not yet occurred. However, under the Constitutional Reform Act 2005, the Lord Chief Justice is empowered to suspend judges from sitting in certain circumstances that include being subject to criminal proceedings or convicted of a criminal offence; but subject to the agreement of the Lord Chancellor. The Act also established the Office for Judicial Complaints (OJC) and created the position of Judicial Appointments and Conduct Ombudsman to review the way in which the OJC handles complaints.

Prosecutorial immunity

Albeit not as broad as judicial immunity, in the US prosecutors are absolutely immune for their actions during a trial or before a Grand Jury; but only have qualified immunity, that is subject to a test of reasonableness, during the investigatory phase.

However, in protecting and serving functions, immunity can, where integrity is lacking and corruption rife – as it is in the legal systems of some countries – be taken advantage of to the detriment of the public interest and, thus, needs to be taken into account when policy decisions are made on this issue..

In the United States Supreme Court in the case of Brady v. Maryland, 373 U. S. 83 (1963), [1], it was held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment" and that the prosecution must disclose material exculpatory evidence to the defence. 

However, in Imbler v. Pachtman, 424 U.S. 409 (1976)[1], another United States Supreme Court case, the doctrine was established that affords prosecutors absolute immunity from civil liability for actions that violate a defendant’s constitutional rights. It determined that district attorneys or prosecutors have full immunity from civil suits in relation to their government duties on the basis that they are “quasi-judicial” officials, much like a judge or a grand juror, for whom absolute immunity is vital to protect the judicial process from harassment and intimidation, thus, enabling them to make discretionary decisions fairly and fearlessly. Judge Learned Hand, concluded that it is “in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”

This absolute immunity extends to a prosecutor’s deliberate concealment from the defence ofexculpatory evidence in violation of Brady v. Maryland, making it easy for prosecutors to violate Brady. Imbler encourages dishonest prosecutors to hit below the belt, and discourages honest prosecutors from doing the right thing.

Now that Brady violations appear to be more common than ever, the shield of absolute immunity for wilful and serious Brady violations needs to be questioned, particularly since Brady violations deny the defendant his right to a fair trial, undermine the integrity of the judicial process, and tarnish the public’s perception of the judicial process. Absolute immunity should not apply to bad faith conduct that involves the deliberate suppression of exculpatory evidence. This would make way for a meaningful remedy for individuals whose constitutional rights have been violated, and who were wrongfully deprived of their liberty by a prosecutor’s unlawful conduct.

Copyright: OpenTrial 2011