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How to Prosecute Abusive Prosecutors

Updated: Dec 29, 2020

The New York Times

By BRANDON BUSKEYNOV. 27, 2015 (for source article, click here)

WHEN it comes to poor people arrested for felonies in Scott County, Miss., Judge Marcus D. Gordon doesn’t bother with the Constitution. He refuses to appoint counsel until arrestees have been formally charged by an indictment, which means they must languish in jail without legal representation for as long as a year.

Judge Gordon has robbed countless individuals of their freedom, locking them away from their loved ones and livelihoods for months on end. (I am the lead lawyer in a class-action suit filed by the American Civil Liberties Union against Scott County and Judge Gordon.) In a recent interview, the judge, who sits on the Mississippi State Circuit Court, was unapologetic about his regime of indefinite detention: “The criminal system is a system of criminals. Sure, their rights are violated.” But, he added, “That’s the hardship of the criminal system.”

There are many words to describe the judge’s blunt disregard of the Sixth Amendment right to counsel. Callous. Appalling. Cruel. Here’s another possibility: criminal — liable to prosecution and, if found guilty, prison time.

If this notion seems radical, it shouldn’t. Federal law already provides a mechanism to prosecute judges and district attorneys as criminals when they willfully deprive people of their civil rights: Title 18, Section 242, of the federal code.

This isn’t some dusty, rarely used legal tool. The Department of Justice typically wields Section 242 against police and correctional officers accused of physical or sexual violence. But Section 242 applies with equal force to those who prosecute and sentence, the state officials whose deliberate skirting of civil rights can be most devastating.

At least, that’s how it is on paper. The federal government has not in recent memory pursued a judge under Section 242, and it has only rarely enforced this law against prosecutors.

It is absolutely essential to bring rogue law enforcement officers to justice, particularly in a post-Ferguson world in which violations of constitutional rights have come under intense scrutiny. However, the government’s focus on abuses by law enforcement officials leaves the burden of curbing abuse by judges and prosecutors to private individuals.

This is a responsibility few lawyers are willing to accept, in large part because the United States Supreme Court has made pursuing a civil case against a prosecutor or judge practically impossible.

Consider the case of John Thompson, who spent 14 years on death row for a murder he didn’t commit because the New Orleans Parish district attorney’s office intentionally concealed forensic evidence establishing his innocence. After his exoneration, Mr. Thompson sued the office under Section 1983 of the Civil Rights Act of 1871, landmark legislation intended to provide a federal forum to those deprived of their civil rights by state officials.

Though Mr. Thompson won a $14 million jury award, the Supreme Court set aside the verdict on appeal. Notwithstanding the fact that the New Orleans prosecutors had similarly withheld evidence in at least four other cases, or the fact that several prosecutors suppressed the evidence in Mr. Thompson’s own case, the court said that Mr. Thompson had failed to demonstrate a pattern of wrongdoing by the district attorney’s office, which it held was required by Section 1983. The court’s decision illustrates just one of a host of protections it has given to prosecutors and judges to shield them from liability.

Civil cases like Mr. Thompson’s reveal a frightening reality. In privileging the discretion of prosecutors and judges to enforce the law, we have come perilously close to placing these officials above the law. We do not know the extent to which judges and prosecutors cross the line into criminality. After all, cellphones rarely capture the moment when a judge or prosecutor illegally locks someone away.

Nonetheless, advocates across the country continue to expose judges who unlawfully deprive defendants of lawyers or throw people in jail simply because they are too poor to pay small amounts of money. We are constantly confronted with wrongful convictions rooted in a prosecutor’s belief that winning a case is more important than seeking justice. These experiences compel us to recognize that sometimes the criminals our justice system most needs to confront are actually running it.

There is a solution: federal criminal prosecutions of state judges and prosecutors who flout the law. The nearly insurmountable barriers to justice in civil court don’t apply in criminal prosecutions. Indeed, the Supreme Court has invoked the availability of Section 242 prosecutions to justify its sealing of federal courthouse doors against people seeking to vindicate their civil rights.

Judges and prosecutors violate civil rights every day, in plain sight, and with seeming impunity. To make them answer for these crimes, the federal government must continue to extend its reach beyond the streets and into the courtroom.

Correction: December 11, 2015 An Op-Ed essay on Nov. 27 about prosecuting abusive prosecutors mistakenly said that a Missouri prosecutor recently pleaded guilty under Title 18, Section 242 of the federal code. The prosecutor pleaded guilty to the felony of covering up a police officer’s crime under a different law; it was the police officer who pleaded guilty under Section 242.

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