Prosecutors cannot be sued for injuries caused by their own misconduct. For example, even if a prosecutor deliberately withholds exculpatory evidence in violation of professional ethics and a defendant’s constitutional rights, and this willful misconduct results in an innocent person spending decades behind bars for a crime of which they are subsequently exonerated—the prosecutor remains immune from civil liability.

The policy of absolute prosecutorial immunity comes not from Congress but from the Supreme Court, which took 42 U.S.C. § 1983’s command that “every person” who, acting under color of law, violates the rights of another, “shall be liable to the party injured,” and added “except for prosecutors.” Was the Court’s originalist reasoning sound? Would a different policy open the floodgates and subject prosecutors to endless litigation, as the majority feared? And are there really other ways of ensuring proper accountability for some of the most powerful actors in our system of government?

This Teleforum considers whether it is time to reconsider absolute prosecutorial immunity and, if so, how we might balance the need for accountability and redress with the very real concerns of prosecutorial independence and efficacy.

Featuring:

Moderator: John G. Malcolm, Vice President for the Institute for Constitutional Government, The Heritage Foundation 

Clark Neily, Vice President for Criminal Justice, Cato Institute.

Geoffrey D. Wilson, Director At-Large, Central District of California, National Association of Assistant U.S. Attorneys 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Event Transcript

Wesley Hodges:                Welcome to the Federalist Society's Practice Group podcast. The following podcast, hosted by the Federalist Society's Criminal Law and Procedure Practice Group, was recorded on Thursday, January 4th, 2018 during a live teleform conference call held exclusively for Federalist Society members.

                                                Welcome to the Federalist Society's teleform conference call. This afternoon, we will be hosting a conversation on prosecutorial immunity. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call. Today, we are fortunate to have with us John G. Malcolm, who will be moderating this discussion. He is chairman of the Criminal Law Practice Group at the Federalist Society, and Vice President for the Institute for Constitutional Government at the Heritage Foundation.

John G. Malcolm:             As Wesley just said, uh, we're here today to talk about prosecutorial immunity, which is a hotly debated topic. Uh, there is actually no statute that provides for prosecutorial immunity. Nonetheless, the Supreme Court recognized, uh, that prosecutors were entitled to at least some form of immunity, uh, in 1976 in the case of Imbler v. Pachtman. That was a unanimous decision, by the way. And providing some form of immunity definitely makes some sense. We do not, after all, want prosecutors or law enforcement officers for that matter, uh, second guessing every decision that they make out of fear of potentially incurring civil or criminal liability if they make a mistake.

                                                On the other hand, there are those who believe that some, if not many, prosecutors act in bad faith by supporting perjury, withholding potentially exculpatory material and the like, when it comes to pursuing some individuals. Former Alaskan senator Ted Stevens, for instance. Uh, that case comes to mind. Uh, and these same people argue that prosecutors are able to sweep a wealth of sins under the rug by hiding under the cloak of immunity for their misdeeds.

                                                We're fortunate to have with us today Clark Neily and Geoff Wilson to discuss this topic. I will keep their introductions short so that we can get right to their presentations. Clark, who will go first, is the Vice President for Criminal Justice at the Cato Institute. Before joining Cato in 2017, Clark was a senior attorney and constitutional litigator at the Institute for Justice, and he was the director of the institute's Center for Judicial Engagement. Clark, who earned his undergraduate and law degrees from the University of Texas, was also an adjunct professor there, where he taught Constitutional Litigation and Public Interest Law. Clark is the author of "Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of a Limited Government." I'll put in a plug. I've actually read the book and think it's terrific and commend it to you. He was also the author of numerous articles that have appeared in law reviews and major newspapers.

                                                After Clark's presentation, we'll hear from Geoff Wilson. Jeff is a graduate of Loyola Law School and is currently a Deputy Chief in the General Civil Section of the US Attorney's Office for the Central District of California and ... so, in Los Angeles. He's also a member of the Board of Directors for the National Association of Assistant United States Attorney. Prior to becoming an AUSA, Geoff worked at Universal Pictures in the Feature Film Business Affairs Division. Since joining the US Attorney's Office in 2007, Geoff has prosecuted and defended law enforcement officials in the tort and civil rights context, and currently supervises and litigates cases in several areas, including the Federal Torts Claims Act, employment decision, and constitutional torts. Geoff has received numerous awards during his career, including the Director's Award for Superior Performance by an Assistant US Attorney, and the Council of the Inspector General's Award for Excellence for Combating Mortgage Fraud. And with that, let me turn it over to you, Clark.

Clark Neily:                         Well thanks, John. Thanks to you and to Geoff and also the criminal law practice and group, uh, for having the opp- ... or, making the opportunity to um, uh, to talk about this important topic. The um, the-the first thing we should do is understand what's at stake here. And what's at stake is whether there should be any meaningful accountability for prosecutors who violate people's rights, and in some cases, actually um, manage to obtain unjust convictions, uh, by uh, withholding evidence, uh, making uh, improper statements to juries, or engaging in other misconduct. We know that this has happened. We know it happens not rarely but um, uh, uh ... and I would say frequently, but it happens more than we would want it to. Uh, and we also know that, uh, the-the ability or the willingness of the system to impose discipline internally, um, is highly suspect. And I'll get into the-the numbers in a minute. But let's take a moment to step back and ask where prosecutorial immunity comes from.

                                                Um, in 1871, the uh ... Congress, uh, enacted the Civil Rights Act of 1871. Uh, and were most familiar with it today from section 1983, uh, which is, uh, the shorthand for the provision of, uh, the Civil Rights Act of 1871 that provides a cause of action, uh, for people who have been injured through the deprivation of any right. Now this is, uh, this is for state actors only, so uh, state and local officials. There's a separate, uh, cause of action for people who, um, have been injured by the behavior or the-the misconduct of federal officials. Um, and it's not statutory u-upon a law doctrine, uh, that the Supreme Court has, uh, uh, developed as an analog to section 1983 liability called the Bivens Doctrine.

                                                We don't need to get hung up on the specific, um, uh, doctrines at this point. What we do wanna, uh, look at is the actual language of section 1983, which does not include anything about immunities. It does not exclude any particular persons or classes of persons, um, from those who can be liable. And it says nothing about immunity. Now, the Supreme Court has taken that language and has, um, added to it a number of immunity doctrines, two of the most important of which are ... excuse me ... qualified immunity, which is the immunity that applies to most government officials and essentially provides that they will only be liable for violating the clearly established constitutional rights, uh-uh, of-of-of a person. Not any constitutional right, uh, as the statute actually reads, but only clearly established constitutional rights.

                                                The other major immunity doctrine that the Supreme Court has added to section 1983 ... or, I should say has read into section 1983, is absolute prosecutorial immunity, which is exactly what it sounds like. Uh, you cannot sue a prosecutor for anything that they do, um, in terms of making, uh, decisions about whether to bring charges, how to proceed, and what they do in a courtroom. Um, there is, uh, at least some window of ability to sue prosecutors when they act in an investigative, uh, capacity. So in other words, when they are working with police officers, uh, doing things like interviewing witnesses or helping put together a case. Uh, there are significant problems with that. It's a much narrower exception than it might sound like, uh, and prosecutors have argued strenuously, uh, that the absolute prosecutorial immunity that they enjoy for essentially, uh, courtroom decisions essentially relates back to virtually anything they may have done in an investigative role. But put that aside, the key here is that prosecutors that the Supreme Court has determined that prosecutors should be absolutely immune from civil liability for conduct that they engage in, in the litigation or the-the run up, uh, to deciding to bring a case, and also what they do in court.

                                                And this includes absolutely the most egregious conduct that you could imagine. This includes cases where prosecutors have deliberately proceeded against somebody that they know to be innocent, where they have fabricated evidence, where they have pressured witnesses into giving false statements in order to convict somebody that they know is innocent. Uh, and-and even if that conviction is ultimately reversed and the misconduct comes out and there's no doubt that it occurred, those prosecutors still cannot be sued. And that, in essence, is why it's I think such a controversial policy.

                                                There are two questions, I think, that are relevant to this discussion. The first one is whether the Supreme Court's reading of absolute prosecutorial immunity into the text of section 1983 represents a faithful interpretation of the statute, or simply judicial policymaking. And I'll argue in just a moment that it is in fact blatant judicial policymaking, and it is a faithless interpretation of section 1983. The second question that's relevant is whether it's a good policy. So if it is the case, as I argue, that the Supreme Court is simply engaging in policymaking here, then the question is, is it a good policy? Or uh, should we reconsider it? Uh, the answer to that is it's an extremely bad policy, and we absolutely should revisit it. Uh, and I'll just develop those two points, uh, in the next, uh, few minutes.

                                                Uh, the Supreme Court essentially, uh, held that um, prosecutorial immunity is essentially, uh, an outgrowth of the ... of the judicial immunity that judges enjoy. So the supreme court looked back at the common law and saw that-that basically legislators and judges, uh, were in fact immune from civil liability for their official actions at the time that section 1983, uh, was adopted ... or, I should say, the C-Civil Rights Act of-of 1871. And they consider prosecutors to be sort of quasi-judicial officers. So they sort of extended the-the immunity that judges enjoy, um, to clothes prosecutors.

                                                Now, a very obvious question that those of us who are ... consider ourselves to be originalists and think that history is relevant in this context should as is, what was actually going on at the time? Were prosecutors in fact immune from civil liability in 1871? And the answer is, no. Uh, absolutely not. In fact, the first, um, case in which a prosecutor was found to be immune from civil liability was not ... 25 years later in 1896. And there is abundant evidence that one of the, uh, concerns that Congress had when it enacted the Civil Rights Act of 1871 was precisely the misconduct of prosecutors, particularly in the south. Uh, and there was abundant evidence that southern prosecutors were using state criminal law to go after former Union officers and others who were attempting to facilitate the exercise of-of liberty on the part of newly freed slaves. So the um, the-the historical record is quite clear. Congress intended, uh, to provide a remedy, uh, against state prosecutors who were abusing their power, uh, in 1871. And the Supreme Courts, uh-uh, essentially reading back of cases that came far after the adoption of the Civil Rights Act, uh, is just sort of transparently ends-oriented, and-and unpersuasive.

                                                So the first point is that prosecutorial immunity does not represent a faithful reading of the texts of-of, uh, of the relevant texts of the Civil Rights Act of 1871, or what we now call ... in 1983. Um, and is in fact, directly contrary to, uh, the historical practice of the time.

                                                The second question is whether this is good policy, since it is nothing more than judicial policymaking. And the answer to that is no, uh, for a variety of reasons. Uh, but-but the main most important reasons are this. We know there is significant prosecutorial misconduct. We have no idea how much in large measure because so much of what prosecutors do these days is-is behind closed doors. Essentially, the-the prosecutorial function has become black boxed in large measure because the vast majority of federal criminal convictions, actually federal and state criminal convictions, are obtained through plea bargain. At the federal level, it's about 97%. At the state level, it's about 95% or 96%. So most cases, uh, criminal cases, are resolved through plea bargain with very little involvement by judges, virtually no involvement in the run of cases by, uh, citizen juries, as the system was intended and designed to do. Uh, and so we just sort of have to hope for the best.

                                                The problem is, is there is increasing, uh, reason to believe that-that, uh, there is more misconduct, uh, than-than we may have supposed. Um, Judge Kozinski famously observed that, uh, Brady violations ... and Brady is an important provision of criminal ... requires prosecutors to disclose, uh, evidence favorable to the defense. Um, Judge Kozinski believed that, uh, Brady violations are rampant. Uh, any number of other professors, uh, and experts have-have, uh, affirmed that, uh, view, or at least have-have said that that's their impression as well. Um, again, we don't know for sure because most of ... most of what happens in a prosecution, again, uh, happens behind a closed door and we simply don't know how much misconduct there is. Um, but there's reason to be concerned.

                                                We do know, for example, the Innocence Project and other groups have begun, um ... have undertaken efforts to exonerate, um, criminal defendants. And there have been hundreds of exonerations. Uh, and about 50% of the time when, um, someone has been convicted of a crime is exonerated, about 50% of the time, the reason for that false conviction was some form of prosecutorial misconduct. So we know it's not rare. We know it's not episodic. We just don't know how often it happens.

                                                Um, finally, the um, idea that-that-that the Supreme Court ... in the so-called Imbler v. Pachtman case from 1976 where they announced the doctrine of prosecutorial immunity. Supreme Court said that there are other means by which prosecutors can be disciplined and held accountable if they engage in misconduct. Um, that's true in theory but not true in fact. There have been abundant studies, at least, uh, 10 or a dozen studies in which there's been an effort to determine what actually happens to prosecutors who have been determined, not accused, but determined by a court to have engaged in misconduct, uh, either because a conviction has been reversed or because of some other, uh, incontrovertible evidence. And it appears that, uh, the-the consensus among these studies is that, um, it is very difficult to document any disciplinary action resulting when prosecutors are shown to have engaged in misconduct. And it's clear that the rate is something less than 1% in all the of studies that I have read.

                                                So that's deeply problematic, and it shows that there isn't sufficient accountability. And the only real means of ensuring accountability, uh, would be to at least, uh, give some, uh, ability for, uh, individuals who have been injured by really gross misconduct ... and I would say demonstrable misconduct ... uh, to have a-a-a civil remedy that is currently foreclosed by a Supreme Court precedent.

                                                I'll close by saying this. Absolute prosecutorial immunity is a particularly ironic, uh, and unfortunate policy in this context. Why? Because of the office and the ... prosecutors and what they stand for. The prosecutors stand for general ... is that punishment, when people misbehave, should be swift and certain. And that seems to be true of everybody but prosecutors themselves. And they should not be the one exception to that rule. So it's time to abolish absolute prosecutorial immunity, to recognize it's nothing more than rank judicial policymaking by the Supreme Court, and bad policymaking at that. Uh, and the-the decision about when and under what circumstances prosecutors should be civilly liable for their misconduct should be left to the body whose business it is in the first place, and that's Congress. Thank you.

John G. Malcolm:             Geoff, over to you.

Geoff Wilson:                    Well thank you very much. Good afternoon and good morning to those of you listening on the west coast. Um, as Mr. Malcolm mentioned, my name is Geoff Wilson and I'm a member of the Board of Directors for the National Association of Assistant United States Attorneys, which is a professional organization, which was formed to promote and protect and serve and advocate for the common interest of frontline federal prosecutors and civil attorneys. Uh, brief legal disclaimer before I dive in is just that, while I am employed as an AUSA and-and currently work for the Department of Justice, I'm here today on behalf of the National Association of Assistant United States Attorneys and I'm not speaking on behalf of the US Department of Justice or the United States Attorney's Office. And that my, uh, view expressed here today are not, uh, those of the department or the US Attorney's Office. I'm just here to discuss the issue that's been presented, uh, so ably by Mr. Neily of, uh, absolute prosecutorial immunity and uh, the-the safeguards that it provides for the integrity of the legal system. And before I fully jump in here, I would also like to thank the Heritage Foundation and the Federalist Society, and Mr. Neily and Mr. Malcolm, uh, for uh, enabling this forum to take place. So thank you all.

                                                Uh, absolute prosecutorial immunity, it's important to note, is not an immunity from responsibility. But it's a narrowly tailored procedural safeguard designed to protect the independent judgment of prosecutors who, as the US Supreme Court as noted, play a quasi-judicial function in our justice system. It's also limited in scope. And as Mr. Neily mentioned, applies only to a prosecutor's acts in determining what case to bring and the prosecution of those cases in court. Prosecutors remain subject to discipline for professional misconduct, uh, by their state Bar Associations. And in the case of DOJ attorneys, the Office of Professional Responsibility, which does publish statistic annually about the prosecutions, uh, that have been investigated and the prosecutors who have been investigated for ethical violations, and synopses of those investigations and the outcomes, if you're interested in looking into that. In addition, uh, DOJ attorneys and-and other attorneys do still face the prospect of, uh, criminal responsibility for civil rights violations as noted by the Supreme Court in Imbler v. Pachtman. So this is not a situation where individual prosecutors have carte blanche to do whatever they please without any consequence.

                                                There's also, in particular with the, uh, Department of Justice and the federal prosecutions, the Hyde Amendment, which provides that a criminal defendant may recover their attorney's fees and other litigation expenses where a court finds that the position of United States was vexatious, frivolous, or in bad faith. And despite, uh, certain isolated high profile cases that have been mentioned, prosecutorial misconduct of a constitutional dimension is exceedingly rare. Prosecutorial efforts are subject to checks and balances, including internal review of charging decisions and oversight by the court, as well as elected or appointed chief prosecutors. Uh, by way of an example, Justice Scalia, uh, noted in Kansas v. Marsh that less than .03% of individuals convicted of crimes over a 15 year period were ultimately exonerated. In other words, the statistics he was citing in his opinion revealed that prosecutors got it right 99.97% of the time, which is pretty incredible for any profession involving human beings. Um, it-it's, uh ... I think it's-it's uh, an overstatement to say that-that prosecutorial misconduct is rampant. And the statistics, uh, don't bear that out.

                                                Certainly, prosecutors should perform ethically. And um, and if they ... if they do not do so, they're subject to termination, ousted from their positions, and that's also true for elected or appointed, uh, prosecutors.

                                                Uh, finally, if uh, this uh, historical absolute prosecutorial immunity were abrogated, it would interject concerns of potential civil cases into the prosecutor's decision making process to the detriment of society at large. Prosecutors represent the sovereign and the people, and as the Supreme Court has repeatedly acknowledge, they cannot effectively perform the people's work if they are in fear of individual civil liability or civil litigation arising out of their prosecutorial decisions. It could also lead to a cascade of civil litigation involving those who have been convicted of crimes and who otherwise, uh, have certain animosity towards the prosecutors who put them there and would choose to use civil litigation as a tactic in order to get back at the prosecutor, uh, whether or not those claims have any merit.

                                                The purpose of the absolute immunity is not to protect the guilty, but it's to protect the system and to protect prosecutors from having to think about these issues when they should be thinking about the facts and the law that, uh, are before them. So if, for example, a prosecutor is weighing his or her own potential future civil liability with determining which defendants to prosecute, justice suffers. Should prosecutors weigh the potential of a future lawsuit by a defendant prior to filing charges, they may think twice about pursuing powerful corporate defendants or individuals for fear that those individuals or corporations could fund endless lawsuits against the prosecutor in retaliation for their prosecutorial decisions, and instead focus their prosecutions on less powerful opponents, rather than where the facts and the law lead them. And I think we can all agree that lawyers are inherently litigious and that criminal defense attorneys may feel they're not doing their jobs if they're not also preparing for potential future lawsuit against the prosecutors if things don't go well for their client. And this is-is just one example of how an abrogation of the absolute prosecutorial imm-immunity, uh, for these limited, uh, civil issues, uh, is counter to the role of prosecutors as advocates for the people and justice. And absolute prosecutorial immunity should remain to protect the decision, uh, from such concerns.

                                                And I think it's pretty, um, evident from looking at current statistics on prisoner litigation that expanding the targets of opportunity for prisoners who are currently incarcerated to include the prosecutors who put them there would result in a substantial increase in litigation, especially if the prosecutors enjoyed only a qualified immunity as opposed to an absolute immunity. And while, um, Mr. Neily alluded to the-there being a lack of textual support for the proposition that prosecutors are entitled to absolute immunity, uh, the Supreme Court has nonetheless found time and again that-that this is ... that-that 1983 should be read in harmony with general principles of tort immunities and defenses, rather than in derogation of them. Uh, the courts looked at other issues such as judicial immunity. I don't think that, uh, there's-there's a solid argument that judicial immunity should be abrogated, uh, in light of the statute where legislators are presumed to know how to le- ... write legislation. And if it was their intention to change from the status quo, they could clearly and concisely write into the law their intent to do away with those immunities.

                                                Um, and in light of this, I think, um, I uh, I would suggest that the proposed cure of a-allowing a qualified immunity rather than an absolute prosecutorial immunity would be worse than the, uh, disease of, uh, of bad prosecutors. And that it should be upheld.

John G. Malcolm:             All right. Let me, uh-uh ... Clark, I-I'll give you a couple of moments to respond to, uh, anything you heard that Geoff, uh-uh, said in his presentation. And then we'll start to open it up for questions.

Clark Neily:                         Well thanks, John. And-and thanks, Geoff, for that excellent, uh-uh, summary and presentation. Um, we certainly disagree but we disagree civilly, and-and that's-that's, uh, one of the great features of-of participating with the Federalist Society is the ability to discuss intelligently and civilly. Um, I do disagree though, however, for a couple of important reasons that I'll just, uh, reemphasize. Then we can take questions.

                                                I don't wanna be repetitive, but um, the ... To be clear, the existing tort standard, uh, in 1871 was that prosecutors were, uh, civilly liable. They were liable for malicious prosecution. Uh, back in 1871, there were not very many professional prosecutor officers. There were some but not very many, so most prosecutions were done by private lawyers. But both the public prosecutors, the-the few public prosecutors at the time and private prosecutors, were at the time, in 1871, reliable for malicious prosecution. And so that was the common law background at the time.

                                                Um, second, the thing that's, uh, so important to keep in mind I think is not the theoretical availability of-of accountability measure, but what actually happens in real life. And let me talk about two cases very quickly. One case is probably very familiar to people listening. That was the criminal prosecution of Ted Stevens, uh, under the Obama administra- ... actually it was, uh, originally under the Bush administration but then [inaudible 00:24:06] under Obama. Um, long story short, what happened in that case was that the prosecution systematically withheld exculpatory material, um, that they had a very clear obligation to disclose. The judge, Emmet Sullivan in that case, uh, after the jury had voted to convict, uh-uh, Senator Stevens and a whistleblower had come forward, uh, des-describing the evidence that had been withheld, Judge Sullivan issued ... uh-uh, brought in a-an expert to do an investigation. Um, and that resulted in what's called the Schuelke Report, about a 400 page report documenting serial misconduct by the prosecutors, not just negligent misconduct but willful misconduct and a willful failure to produce obviously exculpatory material. He came to within a whisker of recommending criminal prosecution for a couple of the prosecutors on the team, um, but said that the elements were not quite met.

                                                The maximum punishment received by any of the prosecutors on the team, as best as I had been able to determine, was a single transfer to another office. Um, that ... a-and that's at-at the end of the most, probably the biggest scandal in the modern history of the Justice Department. And so what happens in terms of internal disciplinary measures is a single transfer. That is very, um, problematic from the standpoint of-of a department that is at the same time trying to eliminate civil liability, eliminate the ability of people to proceed in court when misconduct has injured them, um, saying, "Hey we'll take care of ourselves." The answer seems to be actually, no, you don't.

                                                Um, another case that, uh, this one, it went up to the Supreme Court a couple years ago. The um, uh, Pottawatomie County, uh, Iowa case. It's an interesting and long and complicated case, but the gist of it is this. Um, state prosecutors in Iowa, uh, were investigating a murder ... or, police and prosecutors were investigating a murder. Uh, they had a very s-strong suspect, um, but they turned away from that suspect inexplicably and went after a couple of black teenagers whom they railroaded into a criminal conviction. Um, you should read the facts sections in Paul Clement's excellent brief in this case. It is a horror show. It is absolutely clear that these two teenagers were railroaded, that false testimony was elicited from witnesses, and an unjust, um, conviction was obtained. Uh, they were then exonerated a couple ... after a couple of decades, uh, in prison, and-and attempted to sue the prosecutors, who invoked absolute prosecutorial immunity and said that it should also apply to their investigative activities in the case.

                                                Um, the case was ultimately settled and dismissed after oral argument in the Supreme Court, so we don't know the result in the case in terms of legal doctrine. But one thing that was extraordinary to me, um, was that neither of the prosecutors in that case were disciplined. In fact, they are both still in private practice and they both still have their licenses, and neither of them was disciplined in any way. That is an astonishing result in a high profile and important case. Uh, and if prosecutors' offices are not subjecting prosecutors who behave in that manner in such a public, uh, and-and infamous case, what are they also failing to do in the cases that don't make the front page? That's something we should be very concerned about. Thank you.

John G. Malcolm:             Geoff, do you wanna respond to that?

Geoff Wilson:                    Sure, just briefly. I'll say that, um, I-I certainly am not here to defend the actions of prosecutors who behave unethically. And that's something that I-I think prosecutors as a whole are very, uh-uh, focused on individual responsibility for their own actions. And in those two particular cases, I would suggest that they are outliers and that-that those are, um, are-are-are certainly very serious issues, but-but that's not, um, the case in so many, uh, prosecutions. There are millions of prosecutions every year in the United States, and-and those two particular cases are, uh, are examples of-of outliers.

                                                Um, I-I will say that all of these issues of immunity are very complex, fact-specific issues, like many legal cases are. And at a 30,000 foot view, it's difficult to see what the facts are and what the analysis is that takes place in order to determine whether or not an individual is entitled to, uh, a particular immunity. So I-I do appreciate that we're under short time constraints here, but-but I will just say this is a very complicated area of law. And there are very many attorneys who have di-difficulty, uh, litigating in areas involving immunities.

                                                And-and I will say, in-in light of, uh-uh, the suggestion that-that there's uh, there is no discipline for-for these prosecutors, at least as far as DOJ goes, it is available for the public to look and see what OPR has done in certain cases and the conclusions they've reached. Although again, it's difficult to put all of the facts and all of the evidence in front of every individual, and if you did so, uh, reasonable minds I think could differ as to the degree of, uh, of culpability for any particular individual prosecutor.

                                                Um, I would also just say that, uh, insofar as abrogating it to en- ... to ensure that there's, uh-uh, a civil remedy, is-is-is, as I mentioned before, damaging to the system. Just ... It's a very intensive litigative process. I do a lot of work in the qualified immunity area, and it's a very fact-intensive inquiry. It can be. And uh, and that involves a lot of litigation and a lot of, uh-uh, discovery, which can be very disruptive to the individuals involved but certainly in-injecting that into a prosecutor's mindset, into a prosecutor's office, uh, would really chill the ability of prosecutors to do their job as advocates for the people and uh, and representatives of the sovereign. So um, I-I won't beat it to death, and I'm happy to-to-to take some questions if, uh, if they're out there.

John G. Malcolm:             Great. Wesley, do you wanna begin to queue people up? And then I can ask a couple of questions while-while people phone in and-and formulate their questions.

Wesley Hodges:                Looks like we have some questions piling in, but please John, continue.

John G. Malcolm:             Yeah. Uh Clark, let me as you a couple of questions. So Geoff says a couple of things that-that prompt this. So you may or may not be right about whether the Supreme Court in Imbler v. Pachtman, you know, was right about common law, uh, prosecutorial immunity. Uh, however, Geoff makes the point that look, you know, this was 42 years ago and Congress has revisited this issue on a number of occasions. And there have been many, many cases obviously, hundreds if not thousands of cases in which immunity has been applied. Uh, and Congress has not said, "Gee, Supreme Court, you got it wrong. Uh, and there should be no absolute immunity or qualified immunity." Uh, one, isn't that good enough?

                                                And then my ... I guess my second question for you is, uh, Geoff also raises this [inaudible 00:30:20] that, hey, you're gonna have a lot of people who've been convicted and they're sitting in prison with a lot of time on their hands. They're anxious to try to establish some kind of injustice that will get them out of jail. Uh, wh-what is to prevent anybody who gets convicted and is behind bars from filing a civil action for the sole person of essentially trying to find anything that might lead to their conviction being overturned?

Clark Neily:                         Well thanks, John, those are ... those are great questions. And let me ... let me take them in order. Uh, I think those of use who-who are members of the Federalist Society should be particularly, uh, attuned to the proposition that one should never read too much into Congressional inactivity. Um, there could be many reasons why Congress doesn't respond to a certain situation or-or implement particular policy. Um, in this area, it's extremely troubling. I think it's particularly troubling because in essence, the Supreme Court has kind of done Congress's dirty work for. Can you imagine what, uh, would-would, uh, you know, happen to a legislator who took the position, uh, that the prosecutors who engaged in the horrendous misconduct that I described in the Pottawatomie case or in the Stevens case should get off scot free, as they in fact did? Um, and not even be amenable to civil liability, the way any other professional would be who engaged in conduct even a tenth as bad as that? Um, can you imagine a legislator going out and taking that decision in front of ... and saying, "I stand ... I yield to no one in my opposition to the idea that these guys should be amenable to civil lawsuit." I think that would be an extremely difficult position and a very dangerous position for a legislator to take.

                                                So to have the Supreme Court read what I think would be an extraordinarily controversial immunity doctrine into the text of 1983, I think is a ... is a terrible, uh-uh, threat to, uh, legislative accountability because it takes the body that's really supposed to be responsible, that that's sort of policymaking off the hook. So that's point one. And I don't, you know ... It may well be that there's many members of Congress that think, you know, "Boy I'm glad the Supreme Court did that. I get to have the best of both ways. I keep my friends in the law enforcement community happy by not doing anything, but I don't have to accept political accountability for, uh, actually proposing and defending this very controversial, uh-uh, prosecutorial immunity."

                                                Second point, what would prevent defendants from just, you know ... This is the flood gates problem. What would prevent, uh, convicts from just suing prosecutors every time they, you know ... somebody gets convicted and goes to jail. And-and the answer to that is pretty simple. Uh, at the time, uh, that-that the Civil Rights Act of 1871 was enacted, the relevant cause of action for a prosecutor who, uh, engaged in misconduct would've been malicious prosecution. And the elements of that crime, uh, are difficult to satisfy. I'm sorry, the element of that tort are difficult to satisfy. And one of them is that you have to show that, in fact, you are innocent of the conduct, uh, that you had been convicted of. So you'd actually have to get a judicial determination that you were wrongfully convicted or otherwise harmed in some way. And so the-the doors to the courthouse would not even open until a judge independently said yes, there was prosecutorial misconduct in this case and it caused an injury. It caused a bad result. So the vast majority of people who get convicted, uh, I think ... You know, Geoff cited the statistic that Justice Scalia noticed, or mentioned in Marsh, 99.97% of people have not been exonerated so it's only .03% of people exonerated. Doesn't sound like flood gates to me.

John G. Malcolm:             Geoff, let me ask you a question too before we turn it over to the audience, which is, you mentioned that there are a couple of other avenues, three I think you mentioned, uh, for disciplining prosecutors. You mentioned state bar proceedings, which are difficult to do, although they happen; criminal prosecutions. Criminal prosecutions of prosecutors do happen, but I think you'd acknowledge, exceedingly rarely. And then you talked about the OPR process and you said, well, OPR publishes statistics about the number of matters that they looked into. And there's been a lot of criticism ... ba-back to the many many years ago when I was in AUASA, uh, that you know, OPR really ... the-the fix is in, that they ... that they are not really serious about conducting these sorts of investigations unless something comes to light and-and it's made ... the public, uh, exposure, basically forces them, uh, to go after prosecutorial misconduct in some more concerted way. Uh, why should the public have confidence in the ... in the Office of Professional Responsibility process, particularly in light of the fact that, you know, the Inspector General, Michael Horowitz has recently come out with some reports kind of pointing the finger at OPR and-and-and talking about some of the inadequacies that at least his office has observed in the OPR process?

Geoff Wilson:                    Well I think in order to have a functioning justice system, you have to have some level of trust in the individuals who are responsible for, uh, carrying out the-the, uh, the will of the elected officials and-and enforcing the law as they're required to under the Constitution. So I think the-the OPR should be given the benefit of the doubt. And to the extent that there are, uh, published statistics and reports, the OPR is a-a-a-a relatively transparent organization. And it-it may not be perfect, but it's certainly, uh, an-an option. I think, um, that the ... at least from-from my personal perspective, I've-I've, um, heard of individuals who've, uh, had OPR investigations or seen them in the-the course of the, uh, work with the agency. And they're not pleasant experiences. They're certainly something that, um, can be a very trying experience for a prosecutor. Um, I-I don't, uh, happen to have the statistics in front of me, but the-the other issue with OPR and its lack of prosecuting could-could very be, and I'd suggest that it is, that there are v- ... uh, very many, a great number of prosecutors who are not committing misconduct, certainly not at the level that would result in an investigation by, um, by OPR.

                                                There's also additional remedies considering this ... You know, this is a democracy. Obviously we have elected, um, you know, an elected president who appoints the attorney general. And petitioning one's, um you know, political representatives is ... I think like, we have a-a better angle to get on this and-and much less of a blunt instrument than, uh, just abrogating the absolute immunity, uh, in its entirety.

John G. Malcolm:             We ... I should at least point out that OPR at least only responds to the Department of Justice and handles any potential misconduct by federal prosecutors. Uh, there are other mechanisms which would be subject to similar challenges I think at the state level. But with that, Wesley, why don't we start, uh, you know, taking questions from the audience?

Wesley Hodges:                Wonderful. It looks like there are five questions in the queue. If you'd like to join the queue, please enter the star key and then the pound key on your telephone.

                                                Let's move to our first caller.

Caller 1:                                Good afternoon. Um, [inaudible 00:36:52] question. Will ... What ... a conviction that is reversed on appeal because an accusatory instrument was defective or some other Miranda violation or something like that? What would be the effect, and would that open up a prosecutor to, uh ... or-or-or blow his immunity?

Clark Neily:                         Well of course the answer is we don't know because, uh, the Supreme Court hasn't had an opportunity to address that issue because it has made a policy, it has invented a policy that's so sweeping that-that-that there's no opportunity to answer that question. So that would be up to, uh, the policymaking body. That would be up to the Congress to make that determination. Um, and I think reasonable minds could differ, uh, about what level of conduct should expose a prosecutor to civil liability. Uh, and I don't, I don't think that, you know ... I don't have an agenda necessarily for the fine grain distinctions or the, you know, which conduct should be in and which conduct should be out. But I do think that misconduct that, uh, is willful and demonstrably results in the conviction of an innocent person is very much akin to, uh, gross negligence in an operating room, uh, or-or even worse. Uh, and just as surgeon who cuts off the wrong leg during an amputation, uh, would be ridiculous to hear that person say, "Well I-I have to make a lot of difficult decisions under pressure and so I should be, uh, liable to that person I hurt." I-I think the same of a prosecutor who engages in willful misconduct that results in the conviction of an innocent person who is subsequently exonerated. That much, at least, I hope we can agree on should be easy.

Geoff Wilson:                    I would just add if, uh, if you don't mind, that-that the distinction between a-a surgeon performing surgery and a prosecutor, um, is uh, is substantial in that prosecutors do represent the good of the public at large and also represent the sovereign. And there-there is an interconnect between the immunities of a-a prosecutor as-as, you know, for their role as a prosecutor. And also ties into, um, immunities that are, um, couched as sovereign immunity, which I think goes a-a bit beyond our topic here. But uh, I will just say that I think that it's difficult to make simple analogies to the role of a prosecutor because it's such a unique role in our justice system.

John G. Malcolm:             Wonderful. Well let's move to our next caller.

Caller 2:                                I wanna followup on John's, uh, point about, uh, stare decisis, which is gather is supposed to be, uh, particularly strong when you're talking about, uh, the decisions, the deciding statutory questions. Uh, I'm just curious first of all, uh, if there's any history of any statute being, uh ... a statutory interpretation being reversed after, say, more than 40 years, uh, from the original decision.

                                                Secondly, I guess there's nothing to prevent states from, uh, stepping into the void if Congress has not created a cause of action. I'm curious whether there are any states that, uh-uh, that have abrogated, uh, absolute immunity for prosecutors under state law. And uh, if not, how long has it been true that-that states generally don't permit, uh-uh, suits against prosecutors?

John G. Malcolm:             That's great. We'll [crosstalk 00:39:59].

Geoff Wilson:                    I can take ... I can take a quick stab at it. I'm certainly ... And I'm-I'm definitely not an expert in state prosecutions. I-I deal exclusively in the federal arena. But in terms of a-a-a statute or a court's interpretation of, uh, a doctrine after 40 years, I-I don't, I don't know that that's unheard of. I think that, um, you know, different courts can reach different conclusions about issues. Obviously stare decisis is important, but um, I would say it's not-not unheard of for some nuance to be placed on a, um, on a prior interpretation of uh, of a court, um, opinion. And that uh, I would just mention ... and I apologize. I-I'm not, uh, I don't have the statistics at hand. But I do know there are several states with wrongful conviction statutes or that provide some mechanism of recovery for people who've been wrongfully incarcerated. Um, and I-I don't have those at my fingertips, but I do know that-that-that they are out there. And I-I think there's at least, um, more than 20 states I think that have them on the books. But I'm-I'm sorry I don't have the specific numbers. And I don't know if-if, uh-uh, Clark had anything to add.

Clark Neily:                         Oh thanks, Geoff. Yeah, those are great questions and I think, you know, to take the second questions first, I actually don't ... I have not looked into the question of-of, uh, the different state laws and whether there are analog prosecutorial immunity in the states. But that's definitely something that-that, uh, is worth looking into. It-it seems, um, you know ... My impression is the answer must be yes, because um, one essentially never hears of prosecutors being, uh, successful really under any circumstances. And-and given the just absolutely horrendous cases, um, you know that-that have come up in the federal system and have been rejected by the courts. Uh, it seems that-that clearly there must be some kind of a structural bar in states, or else people wouldn't be running into the ... you know, they wouldn't be going to federal court where they're just gonna be shot down by, uh, the-the doctrine announced in Imbler v. Pachtman.

                                                Um, and so you know, I think, uh-uh, practically speaking, it does not appear that there is a civil remedy available, uh, either in the federal system or in the states.

John G. Malcolm:             Wonderful. We have four questions in the queue. Let's move to our next caller.

Caller 3:                                Hi. This is [Sean Callahan 00:42:01]. Uh, thank you very much for this, uh, conference call. So um, to introduce my question, I actually think I-I m-might have a-a-an answer, at least with respect to one state, in my experience. Uh, you know, Mississippi has a-a malicious prosecution action. But the-the-the difficulty is-is the pleading of-of malice. So uh, wh-wh-what I wanted to ask is whether first, uh, Mr. Wilson a-agree that if, uh, prosecutorial immunity were to go away, uh, the elements of malicious prosecution would be required? Because of course, you know, th-th-those elements aren't in 1983 either. And so supposing that that would be the standard, malicious prosecution, wouldn't prosecutors be protected by the requirement that plaintiff would have to plausibly plead malice? And so wouldn't the-the, uh, the-the-the new situation pretty much resemble the old situation? A lot of cases being kicked at the most, to dismiss stage for failure to plead.

Geoff Wilson:                    Um, well thank you for the question. I-I do think you make a good point insofar as we don't know exactly what it would look like to bring a case, uh, for malicious prosecution under ... and under what elements it might be under a new cause of action if, uh, absolute prosecutorial immunity were abrogated. Um, and-and I think that's an important precursor to-to the discussion. But I will say, um, to your question about whether or not the-the element of, uh, malicious intent would protect prosecutors in a similar way from-from frivolous lawsuits, at the pleading stage, um, I'd have to say that it-it wouldn't. And it wouldn't necessarily because, um, there ... you know, attorneys can be artful pleaders. And all that is required is that you have, uh-uh, plausibly stated a claim for relief. Now, whether or not those facts would bear out during discovery is-is really immaterial at the pleading stage. So prosecutors would be sucked into the vortex of civil litigation on artful speculation in court pleadings.

                                                And I think that's the-the real danger of reducing absolute immunity to a-a qualified immunity, is then prosecutors and prosecutors' offices will be subject to discovery on matters, um, that involve prosecutorial discretion and-and other issues touching on other immunities that could be very disruptive to the effective litigation of their criminal cases. Um, if you're busy responding to discovery or worrying about your deposition or concerned about potentially filing charges against someone because you know that they are a well-funded litigation machine, um, you're not paying attention to the cases in front of you and the victims that have been injured by criminals. You're-you're thinking about things that, as a prosecutor, you-you shouldn't be concerned about. So I think that the structural concerns about the-the criminal justice, uh, system as a whole wouldn't be resolved by, uh, by adding that element of malice at the pleading stage because it's just, um, it's not as an ... as an effective deterrent. Um, and-and as I said, you know, artful pleadings could certainly get past a motion to dismiss at that stage.

Clark Neily:                         I would add just one thing. I-I-I think we shouldn't necessarily take it as a given that, um, that Congress, if they revisited this issue, uh, would necessarily track the elements of a malicious prosecution case, uh, or tort as it existed uh, you know, in the 1870s. Um, on the contrary, I would expect that if Congress were to revisit the issue of absolute prosecutorial immunity, um, one of the elements that they would not include is the actual, uh, proving of malice. In other words, an improper purpose. Um, there are ... there are cases in which prosecutors have willfully withheld Brady material. Proving why they did it, whether they had a proper or an improper purpose, whether they thought, "Well you know what? Uh, this guy is definitely guilty, I'm sure that he's guilty. We have so much evidence. And if, and if I disclose this other material, you know, it's just gonna create a red herring, or it's gonna take the jury down a rabbit trail. So I'm just not gonna produce it." Um, that may not be an improper purpose, uh, within the definitely of-of, you know, malice in the elements of a malic-malicious prosecution tort.

                                                I still think that ought to be actionable, but what I recognize now is that I'm arguing for a policy. Uh, I with the Supreme Court recognized that when it implemented absolute prosecutorial immunity and grafted that doctrine onto the text of section 1983, that it also was, uh-uh, engaged in policymaking, which it should have left to the legislative body, as I said before. And I hope that Congress does revisit this, and-and I think there have been proposals that it, that it should, and there will be more proposals. But Congress should take a fresh look at prosecutorial immunity.

John G. Malcolm:             Let's move to our next question.

Caller 4:                                I'm wondering specifically about defamatory speech. To what extent are prosecutors obliged to communicate to the public about their activities? And can or should their speech outside of court ever be considered defamatory and subject to a legal remedy?

Clark Neily:                         Well Geoff, I don't know if you wanna take that first a prosecutor. I have thoughts on it as well, but uh, I-I'm happy to defer to you.

Geoff Wilson:                    Um, sure. And-and I guess I'll relate this to-to my experience litigating cases, um, in-involving defamation here in California. And-and generally, um, in the federal system, in order to bring a defamation tort a-against a federal employee, you're pretty much out of luck anyway. Um, the Federal Tort Claims Act has a-a specific exclusion for defamatory speech. And also, in the state of California, there's a-a specific litigation privilege. I believe it's California civil code section 47 that essentially says that if it's-it's speech related to a legal proceeding, um, it's not actionable as defamation. And what "related to a legal proceeding" has been held to encompass is-is fairly broad, um-uh, for-for many reasons. But um, I think generally, uh, at least as far ... as far as my personal experience goes, it-it seems as though speech outside of court would not be, um, actionable under the current law, whether or not we ha-had an absolute prosecutorial immunity. Um, I think it's a separate type of immunity derived from the-the litigation privilege. And um, and-and it's something maybe akin to-to a legislative type privilege. But um, but-but that's been my experience. I don't know if-if Clark has, uh, a different take on it.

Clark Neily:                         No I don't. I wanted to add my agreement to-to everything that you said. I-I think that, uh, there are very strong reasons for the common law, um-uh, rule that-that statements made in connection with, um, a pending or in some cases anticipated litigation, uh, are immune from defamation. Um, and ... But I would add one thing, and that is this. One of the things that we see quite commonly, uh, in cases involving prosecutorial misconduct is an unwillingness on the part of the courts to name the prosecutors involved, even when the court has determined that there was willful prosecutorial misconduct. I really think that judges should reconsider that. Um, they have no hesitation to out private attorneys who engage in misconduct, and they do so regularly. And I think that that should apply equally to prosecutors.

                                                Second, we've actually seen the Department of Justice in a number of cases file motions with cases that have identified the prosecutor, uh, who's been determined to have engaged in misconduct, and asked for the opinion to be amended to omit the person's name. Now I think that's a very, uh-uh, difficult thing for an agency to do that routinely, uh, publicizes, uh, the arrest and/or indictment of defendants. In other words, it publicizes criminal charges that it's bringing against a particular person before it has secured a conviction. So I think that the-the department sensitivity to the privacy concerns, um, and the professional reputation of its own prosecutors, uh, is in some tension with how it treats individuals, uh, who it is going after for, uh, various forms of misconduct. And I think that the Department of Justice would have more, uh, credibility and more respectability, um, if they would recognize that, just as its own prosecutors have both privacy and reputational concerns about their names being used in conjunction with misconduct, um, the same is true of private citizens who have not yet been convicted of a crime.

John G. Malcolm:             Thank you for your question, caller. Let's move to our next caller.

Caller 5:                                My question is specifically directed at Mr. Wilson. I'm curious, uh, 'cause I didn't really understand exactly why you think prosecutors should have absolute and police officers should have qualified. 'Cause I've come to work for the DA's office. I see officers all the time and I work with them, and I know that the qualified immunity doesn't really affect their day to day work. And you seem to think that without absolutely immunity, if they had qualified immunity, it would really severely hamper the prosecutor's ability, uh, to run cases, versus a police officer. So I'm just curious if you can explain exactly why you think, while police officers are able to function with qualified immunity, prosecutors would be unable to function with such an immunity.

Geoff Wilson:                    All right, that's a very good question. I'd have to say that my, uh, my experience in dealing with law enforcement officers who've been subjected or sued under Bivens, uh, the Bivens case, which is-  which is essentially the federal analog to 1983, has been very different. There ... While there are a good number of officers who can kind of carry on working while they're, you know, in the middle of litigation, I-I know that there-there has been a very substantial core of officers who I've worked with who have actually been subjected to, uh, the litigation process have found it to be much more stressful than being in a- in-in a gunfight. I had a-a client in particular who'd been deployed to Afghanistan on multiple occasions. He was a-a, um, a-a special agent with one of our federal agencies. And he said to me very convincingly that he would prefer to be, uh, getting shot at in Afghanistan than getting sued, uh, what-what ended up being over a period of six years. So even though he was entitled to this qualified immunity, he had to undergo years of discovery, litigation, and uncertainty. Uh, and ultimately, was completely exonerated, uh, of the allegations against him.

                                                So my personal experience has been that the ... that the-the qualified immunity can also cause a lot of angst. Um, but I think that-that what I've seen in these is the disruption of the discovery process. And in a prosecutor's office, I mean, there really aren't that many prosecutors, and engaging in ... and-and I'm speaking for the- for the United States Attorney's Office. Here we have, uh, I think right around 300 prosecutors for 18 million citizens that are-are-are in our district. So to encumber prosecutors with litigation and discovery obligations, uh, while they're trying to prosecute, um, their cases, I think would be, uh, extraordinarily detrimental and-and disruptive, especially considering the number of prosecutors. And um, you know, their duties in-in, uh, in intaking, um, many cases from many different law enforcement, um-uh, agencies. But-but that's-that's a really, uh, good question. So thank you for that.

John G. Malcolm:             Thank you for your question. We have one question left in the queue. Just wanted to say before we move to the last question that we have another teleform conference call scheduled for tomorrow at noon eastern. It'll be a litigation update on Harvest Family Church v. FEMA, a pertinent religious liberties case. Let's move now to our last audience question in the queue.

Caller 6:                                Hello. I'm an amicus curiae in the Boston Marathon case at the first circuit [inaudible 00:53:22], and I have a question about misconduct by public defenders from DOJ. But before that, I want to say that I heard Mr. Wilson remark that the prosecutor is the ... is the sovereign, is the people. And I was a sovereign, I was the people, and I don't want that kind of immunity. I would rather take my chances. And he also said we should hold back, uh, the fear of a large corporation, what they might do [inaudible 00:53:47]. I-I trust them as well.

                                                So my question about the public defender is that, in this case, [inaudible 00:53:56], he was pleading not guilty and the public defender got up there immediately and said he's guilty, it was him. Uh, which I-I know [inaudible 00:54:09] strategy. But more than that, the aunt of the boy said that during the ... it must have been affidavit, which she then turned to the court. They said while the public defenders were visiting with the parents of the boy in Russia, they told ... they told the parents, "No, you the parents should not speak publicly if he's not guilty, or life will become difficult for the boy in prison." And you can't get much more misconduct than that, right? I can see. So you have always spoken of the prosecutorial [inaudible 00:54:41], but is there anything ... new idea that [inaudible 00:54:46] because they are also on the payroll of DOJ?

Geoff Wilson:                    Uh well, just-just to-to clarify, my-my understanding is that the-the public defenders are actually a branch of the United States court system. So they're not, um, employees of the Department of Justice. And um, I-I would just say I'm not familiar enough with, um, you know any remedies available, uh, as to public defenders, um, to really ... to really comment on, uh, on your question. But-but thank you for the question.

Clark Neily:                         And let me add that, uh, there is um-um, some case law that-that there may be some immunity for public defenders under, uh, section 1983. Um, but not to my knowledge any Supreme Court case, uh, as there is with prosecutorial immunity. So um, but-but you know, again, uh, public defenders are not wielding, uh, the power of the ... of the government, uh, in-in the context where they have the same obligations that prosecutors do, the same opportunities, um-uh, you know, for abuse and the same consequences.

                                                Um, I wanna mention two things though, because the-there are- there are two things that are at least somewhat relevant to the question. One is that there's a very interesting case that's going to be argued in the Supreme Court on January 17th called, uh, McCoy v. Louisiana. And the Cato Institute, uh, filed an amicus brief in that case. It involves a situation ... It was a capital, um, death penalty case, uh, where the defendant wanted to, uh, assert his innocence, and he had an alibi defense that he wanted to put on. Uh, his retained counsel believed that was a bad strategy and the better strategy would be to admit guilt and seek, uh, clemency from the jury to essentially, um, admit guilt that-that he had committed the murders and hoped that the jury didn't sentence him to death. And over the expressed and repeatedly, uh, expressed desires of his client, did in fact admit guilt, and even introduced additional inculpatory evidence during the trial and cross-examined his own client in order to further establish guilt. Uh, and then the question is whether that violated either the sixth amendment or the due process rights of the defendant, to have his own counsel admit his guilt over his expressed objection.

                                                So that'll be argued in the Supreme Court on January 17th. I think it's a very interesting case involving, um, the possible misconduct of defense attorneys, which it should be emphasized, does happen sometimes and should be addressed, um, as well as prosecutorial misconduct.

                                                Uh, the other thing I wanted to mention was that, uh, I have posted on my Twitter account a couple of sources to ... uh-uh, for-for empirical support for the proposition, uh, that discipline against prosecutors is extremely rare, and as I said earlier, appears to be less than 1% of all cases in which, uh, misconduct has been demonstrated. Um, my Twitter handle is ConLawWarrior, uh, one word. So with that, uh, I wanna thank Geoff and John and uh, everybody at the Federalist Society for the opportunity to have a very interesting today. And I hope the audience enjoyed it as well.

Geoff Wilson:                    Yeah. Let me, uh, let me add a ... Fi-first of all, since uh, Clark was able to put in a shameless plug for his Twitter account-

Clark Neily:                         (laughs)

John G. Malcolm:             ... we have on Facebook a, uh, a criminal law ... a Federalist Society Criminal Law Practice, uh, Group Facebook page. And I would urge you to "like" that, and we will of course ... of course be posting, uh, this broadcast, uh, on that Facebook page. And-and of course it'll be on the regular Fed Soc page as well. I think we have reached the end of our hour. I wanna thank, uh, thank you both, Geoff and Clark. You did an outstanding job. And to all of our, uh, all of our callers today.

Wesley Hodges:                On behalf of the Federalist Society, I'd like to thank our speakers for the benefit of their valuable time and expertise today. We welcome all listener feedback by emailing info@fedsoc.org. Thank you all for joining us today. This call is now adjourned.

 

                                                Thank you for listening. We hope you enjoyed this Practice Group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit the Federalist Society's website at fedsoc.org/multimedia.