Prosecutorial Misconduct Results In Waiver Of Civil Immunity

In a case involving stunning allegations of prosecutorial misconduct, a panel of appellate judges for the United States Court of Appeals for the 7th Circuit recently issued a ruling that dramatically undermines the doctrine of absolute immunity. This doctrine makes it virtually impossible to sue prosecutors who engage in misconduct, even when that misconduct results in a wrongful conviction. Almost always, prosecutors at all levels of the criminal justice system enjoy absolute immunity from lawsuits. The obvious benefit of this doctrine allows prosecutors to be free from having frivolous, retaliatory suits brought against them by disgruntled criminal defendants. The clear downside of this doctrine is that it has long shielded unscrupulous prosecutors and enabled them to brazenly violate professional and legal standards in seeking convictions. In other words, the doctrine has permitted unprincipled prosecutors to practice law in a manner that in all likelihood would subject them to civil liability if they behaved the same way as a private lawyer.

In the case before the Seventh Circuit Court of Appeals, the prosecutor has been accused of acting as an investigator – acting outside the boundaries of his job by performing an investigative role prior to the start of the prosecution. In particular, the prosecutor, while acting in an investigative capacity, is accused of coercing witnesses into giving false testimony against the target of the investigation and subsequent prosecution. Judge Richard Posner, writing for the majority held that the prosecutor, Lawrence Wharrie, could be sued given his investigative role misconduct. “Wharrie is asking us to bless a breathtaking injustice. Prosecutor, acting pre-prosecution as an investigator, fabricates evidence and introduces the fabricated evidence at trial. The innocent victim of the fabrication is prosecuted and convicted and sent to prison for 17 years. On Wharrie’s interpretation of our decision in Buckley, the prosecutor is insulated from liability because his fabrication did not cause the defendant’s conviction, and by the time that same prosecutor got around to violating the defendant’s right he was absolutely immunized. So: grave misconduct by the government’s lawyer at a time where he was not shielded by absolute immunity; no remedy whatsoever for the hapless victim.”

This ruling now ensures that the alleged victim of Wharrie’s unscrupulous tactics will be allowed to file a civil complaint and not have it dismissed outright because of the doctrine of absolute prosecutorial immunity. Like any litigant, he will able to present evidence against Wharrie and seek money damages for the alleged misconduct that resulted in his incarceration.

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