We’re doing a press conference for the campaign tomorrow. This relates to a case I’ve had for a while. My client was extradited from Chicago on Grand Larceny charges. He spent 29 days in jail, and did not see his kids for that entire time. Problem is that he is innocent. It’s not just me saying that. The Grand Jury found there was not enough evidence to go forward. That means there was not enough evidence to extradite him.
So we’re suing the Rensselaer County District Attorney’s office. At the press conference we’ll announce the suit and I will discuss my proposal to eliminate the “absolute immunity” that prosecutors have under federal law. The immunity does not apply in this particular case (extradition is not a “prosecutorial” function), but this case serves to highlight a substantial national problem that gets little attention.
I’m occasionally asked by people how I, a criminal defense attorney can defend someone who I know is guilty. The easy answer is that I do my best to get them the best deal I can, and that in many cases I feel the penalties are too harsh and/or that the criminal law should not apply to their behavior (such as non-violent drug cases).
But I always respond with a question: Have you ever asked a prosecutor how they can prosecute someone they know is innocent?
This is usually met with a blank stare. That’s because the question doesn’t make sense to people who aren’t involved in the system. They don’t realize how bad our criminal “justice” system is. They don’t understand how often police lie – even when the defendant is guilty and they’ve got him cold. They don’t understand how many judges are biased in favor of the police and prosecutors, and against defendants.
Most of all, they simply have no idea how often prosecutors disregard the rights of criminal defendants. This happens in so many ways. Even the “good” prosecutors do things I think are wrong. This is probably why I’m a defense lawyer.
To the average person on the street it is inconceivable that a prosecutor would prosecute someone they know is innocent. But it happens, and I’ve been surprised at how often. If you search for cases on this, as I did in preparing for this lawsuit, you find things that shock the conscience. Prosecutors and police lying and hiding evidence that shows a man is completely innocent. In Walker v. NYC a man spent 19 years in prison for murder. The police relied on an informant. That informant was unable to pick Walker out of a lineup, and told police that another man was at the scene of the murder – that man happened to be in jail at the time and couldn’t have been there. Police and prosecutors covered up those details and put the informant on the stand at trial even though they knew he was lying. One of the prosecutors even stated in open court that there had been no lineup even though he knew there had been one.
Some cases are even worse. One Supreme Court case I read had the prosecutor, like Walker, putting a witness on the stand he knew was lying. Even worse, that prosecutor fabricated evidence to get the conviction. It later came out and the Supreme Court ruled that the defendant could not sue the prosecutor because he had absolute immunity.
There are many cases in the casebooks like this. And there are many more that never make it into the casebooks because lawyers know not to bother suing prosecutors because of this immunity.
That is why I’m calling for federal legislation to eliminate the absolute immunity that prosecutors have. That immunity eliminates any incentive for prosecutors to treat defendants like human beings, as my client found out in our case.
Many prosecutors do not fall prey to this. The Saratoga DA’s office is known for being excellent. They get paid reasonably well and do not have the same crushing caseload one sees in Albany and Schenectady. As a result they are able to keep their ADAs. They get quality, experienced prosecutors. They also have good leadership and common sense throughout the office. The quality of prosecutors varies depending on where you are, and most of them are pretty good. Albany and Schenectady suffer from higher turnover, but most of the ADAs there are still reasonable. In smaller counties like Schoharie, Fulton and Montgomery, you have much smaller offices. The head DA usually does a lot of the real prosecution – something you don’t see much of in the bigger counties. Having the DA on the front lines means they stay in touch. They’re not perfect, but they often have a strong feel for juries and good relationships with the judges and defense lawyers.
Then there’s Rensselaer. For reasons I can’t explain, it seems to have become prosecutors gone wild – like Lord of the Flies. The press likes to pin this on the current DA, Patricia DeAngelis, but the problems go back before she was in charge. Time after time they have been tagged by the courts for prosecutorial misconduct, and they just don’t stop. And that’s because of the perceived immunity. I know of one case that was brought and then quickly dropped because of it. This emboldens them. And it does the same for prosecutors in various places across our state and the whole nation. The only way to bring this under control is to eliminate the immunity so that those who are wronged can hold the malicious prosecutors accountable.