March 8, 2014

THE MAJESTY OF THE LAW: Judge says prosecutors should follow the law. Prosecutors revolt.

Late last year, South Carolina State Supreme Court Justice Donald Beatty joined Kozinski. At a state solicitors’ convention in Myrtle Beach, Beatty cautioned that prosecutors in the state have been “getting away with too much for too long.” He added, “The court will no longer overlook unethical conduct, such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence. You better follow the rules or we are coming after you and will make an example. The pendulum has been swinging in the wrong direction for too long and now it’s going in the other direction. Your bar licenses will be in jeopardy. We will take your license.”

You’d think that there’s little here with which a conscientious prosecutor could quarrel. At most, a prosecutor might argue that Beatty exaggerated the extent of misconduct in South Carolina. (I don’t know if that’s true, only that that’s a conceivable response.) But that prosecutors shouldn’t suborn perjury, shouldn’t retaliate against political opponents, shouldn’t suppress evidence, and that those who do should be disciplined — these don’t seem like controversial things to say. If most prosecutors are following the rules, you’d think they’d have little to fear, and in fact would want their rogue colleagues identified and sanctioned.

The state’s prosecutors didn’t see that way. . . . The most plausible explanation for all of these stories is that a significant number of prosecutors just don’t want to be held accountable to anyone but themselves. I suppose a lot of us would like to have that sort of protection when it comes to what we do for a living. But few of us do. And the rest of us don’t hold positions that give us the power to to ruin someone’s life with criminal charges, to convince a jury to put someone in prison or to ask the state to put someone to death.

I think that immunity for state officials, including the absolute immunity enjoyed by prosecutors, violates the Titles of Nobility clause.

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