The new case in the 2nd Circuit denying immunity for prosecutorial misconduct - the window is too narrow to address wrongful convictions

I've written on this blog recently about a new case decided by the U.S. Court of Appeals for the 2nd Circuit where the 2nd Circuit denied a criminal prosecutor ANY immunity for presenting to the grand jury "summaries" of billings in a Medicaid fraud case with omissions that were misleading and amounted to misrepresentations.

Thus, the court affirmed a multi-million verdict against the prosecutor that, most likely, will not be paid out of the prosecutor's own pocket, but will be put on us, the taxpayers - which is, of course, grossly unfair, since public officials must pay out of their own pocket for their own wrongdoing.

Yet, while analyzing this case further, I came to the conclusion that the new precedent has an extremely narrow application and will not be applicable to wrongful convictions.

Morse v Fusto involved an extremely rare case of acquittal, which was even more rare that the acquittal was in a bench trial.  Judges, in trials sitting without a jury, usually convict.

And, this double-rarity may explain why immunity was denied.  It was an egregious case, and it was a kind of a "class of one", to a certain degree, because, once again, an acquittal in a bench trial happens as often as, probably, being twice struck by a lightning.

New York has a serious problem about wrongful convictions though, and with non-enforcement of attorney discipline against criminal prosecutors who mastermind such wrongful convictions.

Reasons for such non-prosecution are very transparent.

If you look at the background of the majority of appellate judges and of supreme court and county court-level trial judges, the majority of them have a prosecutorial background.

Thus, any unraveling of wrongful convictions and disciplining people who were prosecutors who brought about those wrongful conviction can very well result in prosecution of a judge, and judges are controlling attorney discipline, so, same as judges invented absolute immunity for malicious and corrupt acts for themselves and for their breeding stock, the prosecutors, judges also prevent disciplining their breeding stock, with all fake assurances to the public that that is not happening, and that prosecutorial immunity is given based on a promise of availability of prosecutorial discipline.

The situation with non-discipline of prosecutors already resulted in a string of articles by ProPublica.org specifically targeting non-disciplining prosecutors who mastermind wrongful convictions, and in a legislative Bill S24 pushing for creation of a special Commission dealing exclusively with prosecutorial misconduct.

While I have mixed feelings about this "Commission" because it is being "modeled" on the Commission for Judicial Conduct which operates as nothing but a glorified shredder of complaints against judges, the whole idea of creating this separate Commission for Prosecutorial Conduct, as well as the mixed vibes sent by the NYS Statewide Commission for Attorney Discipline that, on the one hand, denies existence of nonenforcement of attorney discipline against criminal prosecutors and, on the other hand, attempts to derail efforst at creating the Commission dealing with prosecutorial misconduct, is an indictment to the system of attorney regulation.

The fact that a separate Commission had to be created for the most powerful class of attorneys, and that is being done because of irrefutable statistics that New York has an extremely high rate of wrongful convictions, and evidence that wrongful convictions are caused by prosecutorial misconduct, which remains unaddressed by the existing disciplinary committees.

Yet, if the existing system does not address misconduct that causes the most harm to the public, why does it exist at all?

And shouldnt' then New York criminal prosecutors, as a matter of honor, waive immunity that was given to them on a promise to the public that discipline against prosecutors is available.  If discipline is unavailable, shouldn't prosecutors return the conditional gift of absolute immunity because the condition is not being satisfied?

Well.

All that said, let us see what will happen in scenarios that do not involve an acquittal, as it did in Morse v Fusto case where the prosecutor was not given any immunity and a multimillion dollar jury verdict against the prosecutor for preparing and presenting false evidence to the grand jury stood.

Those scenarios may include:

• a  wrongful conviction where a defendant was coerced into a plea by threats, 
• a wrongful conviction where a defendant took the plea for reasons unrelated to his or her guilt or innocence, but rather related to the existence of the death penalty in this country, which is an irreversible event if it happens, with the hope that at some point justice will be served, the conviction will be overturned and the convicted person will be still alive to enjoy it - and went to prison for life as a murderer and, possible, child molester and murderer for the crime the defendant did not commit, because the defendant knew that nature of the charge will incite the jury so much that a death penalty, if requested by prosecutors, is a given, and prosecutors do usually request death penalty if it is available because, see above, prosecutorial positions are a path to judgeships, and judges are elected on "being tough on crime" platform;  over 95% of convictions in this country occur through pleas, where issues were never tried and there is no assurance that those 94% of convictions that are bankrupting the country through the necessity to support the prison system and that already resulted in a human rights crisis of gigantic proportions, are not all wrongful convictions;
• a wrongful conviction because prosecution fabricated evidence at trial and/or presented perjured witnesses - that would be the Morse v Fusto situation, but in Morse v Fusto there was an acquittal, not a conviction.

An acquittal, as I mentioned before, is very difficult to obtain.

Most criminal trials, whether bench trials, or jury trials in the U.S., end in convictions, that's why plea bargaining is so popular.

Prosecutorial misconduct and presenting to the grand jury or to the trial jury of fabricated evidence, with complete immunity for prosecutors, is a factor in why criminal trials mostly end up in convictions, and why plea bargaining is so popular - defendants and their attorneys know about the problem and use plea bargaining as a hedging technique, picking the best of the two evils - to be convicted and sentence to  maximum, as charged, and prosecutors usually overcharge to induce plea bargaining, or to have a chance to escape incarceration through a plea.

It is practically impossible to overturn a conviction based on a plea bargain on appeal. 

Pleas are deemed by appellate courts as consensual, judges take precautions to advise criminal defendants of what rights they are waiving and obtain those waivers from criminal defendants in writing, with prior advice of counsel, any wrongful-conviction issues are thus deemed waived, and the conviction is iron-clad.

If under such circumstances the convicted person goes to federal court and tries to sue the prosecutor under the very same scenario as resulted in no immunity for prosecutor in Morse v Fusto, it results in a dismissal under the so-called Rooker-Feldman doctrine where the court does not even consider the merits of the case.

So, event though a wrongful conviction has a more lasting effect upon the criminal defendant, his family, the country, the taxpayers and the perception by the public of lack of integrity of the court system, these cases of wrongful convictions will not be covered by Morse v Fusto.

The remedy?

I see two remedies.

1) legislative abolishment of prosecutorial immunity, and if legislatures refuse to do so, then an amendment of state constitutions and, possibly, the federal constitution, canceling all immunities to public officials for malicious and corrupt acts in office and for violation of constitutional rights of citizens;

2) ratification by Congress of the International Covenant for Political and Civil Rights, so that Americans acquire rights that people from other nations already enjoyed for years and decades - the right to sue their country in the court of an international human rights court.  

Once prosecutors realize that they are not immune from lawsuits for money damages out of their own pockets for fabrication of evidence and wrongful convictions, such fabrication will drop immediately.  People tend to react to being hit in their own pockets.