More On Prosecutorial Immunity

Commenter mistcr offered an interesting take on the nature of the prosecutorial office:

Third, it is impossible to conceive of prosecutors as 'quasi-judicial officers.' They are unequivocally officers of the executive. In fact, as far as the bill of rights and individual liberties are concerned, prosecutors are the bared teeth and most naked expression of the power of the executive.

And yet, the SCOTUS in Imbler v. Pachtman, 424 U.S. 409 (1976) actually did describe prosecutors in exactly those terms: quasi-judicial officers. Check out some of Justice Powell's language in this 9-0 decision:

These courts sometimes have described the prosecutor's immunity as a form of "quasi-judicial" immunity, and referred to it as derivative of the immunity of judges ... 

Petitioner ... contends that ['the "quasi-judicial" characterization'] illustrates a fundamental illogic in according absolute immunity to a prosecutor. He argues that the prosecutor, as a member of the executive branch, cannot claim the immunity reserved for the judiciary, but only a qualified immunity akin to that accorded other executive officials in this Court's previous cases.

Petitioner takes an overly simplistic approach to the issue of prosecutorial liability.

It is the functional comparability of [a prosecutor's] judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as "quasi-judicial" officers, and their immunities being termed "quasi-judicial" as well.

Without having at that time read the case, I responded to mistcr by surmizing that the characterization of prosecutors as 'quasi-judicial' derived from the notion of 'officers of the court.' I appear to have been correct, because Justice Powell also wrote this:

At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator, rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.

Let's see. Drawing a proper line between a prosecutor's executive functions ('administrative') and his function as an 'officer of the court' 'may present difficult questions.' No kidding? But rather than anticipating those difficult questions let's just go ahead and legislate from the bench: prosecutors get absolute immunity. After, it works for us judges, so why not for prosecutors--what could possibly go wrong? Of course, the facts of the case itself illustrated what could go wrong--the prosecutor had "knowingly used false testimony and suppressed material evidence at ... trial." And for that he should have absolute immunity ... just because? Go figure. You'd have to be a SCOTUS justice to understand the subtlety of that one.


For those of us with less subtle minds, let's refer to the Wikipedia article on officer of the court, since that seems to be the source of the notion that prosecutors should have absolute immunity. Here's what Wikipedia says:

In common law jurisdictions, the generic term officer of the court is applied to all those who, in some degree in the function of their professional or similar qualifications, have a part in the legal system. Officers of the court should not be confused with court officers, the law enforcement personnel who work in courts. 

Officers of the court have legal and ethical obligations. They are tasked to participate to the best of their ability in the functioning of the judicial system as a whole, in order to forge justice out of the application of the law and the simultaneous pursuit of the legitimate interests of all parties and the general good of society. 

Officers of the court can be divided into the following functional groups. In most case various synonyms and parallels exist as well as a variety of operational variations, depending on the jurisdiction and the changes in relevant legislation: 

Court proper 

Foremost those who make the decisions that determine the course of justice and its outcome: 

• judges, magistrates and arbitrators,
• prosecutors and crime victim advocates.
• attorneys for each party – the Supreme Court of the United States held in Ex parte Garland[1] that "Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character." In some jurisdictions, such as England and Wales, independent advocates such as barristers are not officers of the court.[2]

So, from this we learn that prosecutors, as 'officers of the court,' have "legal and ethical obligations," and that they are tasked to "forge justice out of the application of the law" and in "pursuit of the ... general good of society."

Your first question is probably, what part of pursuing justice and the general good of society does, for example, knowingly using false testimony and suppressing material evidence serve? I was wondering about that, too. I would have thought that acting unmistakeably for purposes directly opposed to justice and the general good of society would mean that, ipso facto, you were no longer acting as an officer of any court that claimed to have those ends as their own.

Or here's another idea. How hard is it to understand that a prosecutor advances his career by getting convictions, and therefore might be tempted to attain that advancement by means of shortcuts that have nothing to do with justice and the general good of society? The incentives involved seem quite distinct from those of that operate for judges, so why would the SCOTUS think that prosecutors should enjoy the same type of immunity as judges? Go figure, hey?

But that's where our criminal justice system is.

Here's the good news. There's nothing in this that couldn't be fixed by Congress passing a law. In their spare time between impeachments.