[ QUOTE ]
Prosecutors generally have more immunity than even ordinary public officials, akin to the immunity of a sitting judge. In my state (NY) we cannot be sued for our actions in prosecuting a case (although we could be sued for our actions if not directly related to the prosecution of a case, or the decisions associated with it, in that case we only have qualified immunity, instead of absolute immunity). I will admit to not having familiarity with other states, but I cannot imagine it is that much different.
[/ QUOTE ]
I did some more research and I believe you are correct, but that Nifong may have a problem with what you reference as qualified immunity. Here is a quote from a FoxNews article:
[ QUOTE ]
Even if the judge dismisses the case, the defendants will almost certainly take whatever action they can against those responsible for the ordeal.
With Nifong, they will stumble over federal precedents of "absolute prosecutorial immunity" that immunize him against consequences for his behavior as a prosecutor. The qualification is key. The main question about Nifong’s immunity is not whether he committed misconduct-- he clearly did -- but what function was he serving when he did so.
The Supreme Court case Imbler v. Pachtman (1976) is often cited in discussion of prosecutorial misconduct. There, the court distinguished between "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate" [that is, a prosecutor]. It is only as a prosecutor that a D.A. has absolute immunity.
Otherwise, his immunity is qualified; he is not automatically immunized against misconduct that he should have known was a violation of law.
In short, Nifong’s immunity hinges upon the role he was playing when he acted, not upon the actions he took. For example, most of the press conferences held by Nifong occurred before an indictment was sought-- that is, before he became an advocate in a prosecution. The case was in the investigative phase. If the defense can prove Nifong knowingly made false statements then, prosecutorial immunity won’t necessarily protect him against a suit.
Consider the tainted photo I.D. upon which the indictments drew.
It was widely reported that Nifong directed the police to violate their own suspect-identification procedures.
Namely, he omitted non-suspects from the photo lineup and the accuser was told that all photos were of Duke lacrosse players who had been at the scene of the alleged rape. If this is true, then Nifong acted as an investigator and has qualified immunity.
The very fact that it is necessary to jump through hoops in order to address Nifong’s blatant abuse, however, highlights the problem with granting blanket immunity to anyone in power.
If prosecutorial misconduct were rare, then the situation might not be so disturbing. In an essay entitled "Reconsidering Absolute Prosecutorial Immunity" (Brigham Young University Law Review, 2005), legal scholar Margaret Z. Johns observed, "a 2003 study presents alarming evidence of the frequency of prosecutorial misconduct resulting in the wrongful conviction of hundreds of innocent people. This conclusion is reinforced with the ongoing investigation by the Innocence Project…which reported that, as of January 2005, 154 people who served time in prison for crimes they did not commit have been exonerated by DNA evidence. In many of these cases, prosecutorial misconduct contributed to the wrongful convictions….[O]ne can no longer dismiss the problem of prosecutorial misconduct as infrequent nor pretend that sufficient safeguards exist in the system to protect the innocent from wrongful convictions."
Absolute immunity was never meant to suppress evidence, dilute police procedure, or violate civil rights. But when checks and balances within the system refuse to work, then it becomes a blank check on the use of power.
[/ QUOTE ]
Full cite:
linky
Admittedly we were defending non-judges and prosecutors. Thanks for the opportunity to clarify this. As a prosecutor, what is your take on this?
NCAces