Wednesday, April 6, 2011

Clarence Thomas Stumbles is complaining about a recent decision by SCOTUS written by Clarence Thomas and labeling it "one of the meanest Supreme Court decisions ever".  Well, yes, it probably is, but that's not Clarence Thomas' fault.  For one thing, the Chief Justice assigns the writing of opinions based on whim, more than anything else.  For another, all SCOTUS judges are bound by a concept called stare decisis, and can breach it only under the oddest of circumstances.

SLATE has found one set of such circumstances.

The key to the problem is another concept, prosecutorial immunity.  By this is meant that a DA cannot be held responsible when an injustice happens, e.g.: the wrong guy gets convicted.  There are obvious exceptions, such as when a prosecutor deliberately sandbags an innocent victim.  Being an incompetent prosecutor, however, is not a crime, so prosecutors can always put on their 'stupid' face and walk away from their misdeeds.  This is what happened in Connick v Thompson and SCOTUS largely has their hands tied.

That's the problem.  Prosecutors are not idiots, but they play one when they're in front of a disciplinary board of the Bar Association, and they almost always walk away unscathed.  The DUKE LaCrosse team case is an obvious exception.  There, the players were able to prove that the prosecutor targeted them for political purposes.  That prosecutor now sells burgers for the McDonald's Corporation.

Would you like to prevent future decisions like Connick v Thompson?   Silly question.  Yes, we'd all like to avoid the indignity of having our noses rubbed in our dysfunctional (soi-disant) 'justice' system.  The solution suggests itself.  'Prosecutorial immunity' is a flawed concept whose time has come and gone, and it's time for 'prosecutorial immunity' to go away as well.  When a DA or an AG withholds exculpatory evidence, even if there is no suspicion of wrong-doing, that prosecutor needs to have their license lifted, to be disbarred.  Forever.  In fifty states.

Too severe, you say?   How about 'executing the wrong guy'?   How about 'eighteen years in federal slam for somebody else's crime'?   No, it's not too severe.  In fact, it's the only way to make sure that prosecutors make 'justice' their first priority.  Absent this incentive, a prosecutor's first priority will be 'get the conviction'.  It's their ticket out of the DA's office.  God alone knows how many innocent people went to prison so that Rudy Giuliani could become America's Mayor.

Clarence Thomas clearly stumbled nonetheless.  After correctly interpreting the 14th amendment in the famous McDonald v Chicago, he can't claim ignorance.  Here was the perfect opportunity to point out that the 14th amendment guarantees 'equal protection under the law'.  Giving prosecutors a pass because they're prosecutors grants special privileges to one class at the expense of another.  Thomas should have struck down all laws offering prosecutorial immunity as repugnant to the 14th amendment's guarantee of equal protection (or at least offered that as his excuse for upholding the lower court's decision).

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