Legal Question from The Good Wife

I found this show recently - it had great recommendations and reviews but I had never got around to watching it. I’m at the beginning of season 4 now and I really enjoy it (no spoilers past season 3 please).

One of the things I like about it is they tackle some of the finer points of law that I don’t think get addressed on TV very often, and they usually get the legal issues correct. Timelines are sped of course, and their cases are always very dramatic, but it seems like the writers do a great job of showing nuance while keeping it interesting.

In a season 3 episode from 2012 called “The Penalty Box” it was the first time that I thought the show got the legal issue very wrong. Here’s the synopsis from IMDB:

The first thing I thought was that prosecutors have absolute immunity in their role as a prosecutor. Any potential suit against a prosecutor would be dismissed or fail on these grounds. I seem to recall several instances where it was shows prosecutors purposely withheld evidence or even doctored evidence to obtain convictions and they did not suffer any consequences. Is my understanding correct?

The show is in Chicago if that matters.

There is not absolute immunity. They enjoy qualified immunity, and suits against them for “doing their job” are likely to be dismissed, even if they are negligent.

Phrases like “absolute immunity” and “qualified immunity” are more suited to the civil context: you can’t generally sue a prosecutor for putting you in jail, even if it turns out you were innocent, and even if turns out he was careless.

However, if he suborned perjury, destroyed evidence, or otherwise committed criminal acts in order to secure a conviction of an innocent person, he’d be potentially be criminally liable, even if he retained absolute civil immunity.

And as Procustus points out, the immunity of police and prosecutors is qualified, not absolute. Judges are, however, entitled to absolute immunity.

What about in their role as advocates, don’t prosecutors enjoy absolute immunity? I’m thinking of Burnsand Imbler.

I was also reading this law review (pdf) which states:

That article references the above cases.

In any case, the fact pattern on the episode was such that certain evidence wasn’t presented at trial, and/or that certain evidence that had been disallowed at trial was surreptitiously presented to the jury outside the courtroom. In both those cases, I can’t see how an immunity argument would fail. The show focused on our main character litigators trying to demonstrate that the prosecutor in question didn’t commit the acts described. I thought it particularly odd that the issue of prosecutorial immunity was never brought up.

That article also states:

(emphasis added)

“Litigation under 42 U.S.C. § 1983,” is civil, not criminal.

And I’m pretty sure that when a prosecutor commits a crime in order to convict an accused, he is no longer legitimately acting as an advocate, and thus looses absolute immunity. Here, i could be wrong; civil law is not my bailiwick.

Well, I’m no professional fancy law-talking guy, I would think that secretly giving a jury evidence outside of a trial, particularly evidence that had been disallowed at trial, would indeed violate clearly established rights that any reasonable prosecutor would have known of.

There’s qualified immunity for screw-ups, bad judgement and even capriciousness or irrational dislike or whatever. But knowingly, intentionally, and actively violating fundamental rights about trials is probably beyond that.

In theory, anyway. It’s not the law that bothers me about this case; it just kind of violates suspension of disbelief to think that any U.S. prosecutor, anywhere, would ever actually conceive of indicting another fellow prosecutor, no matter how outrageous the conduct.

In the recent supreme court case of Harry Connick, Sr., the prosecutor willingly and knowingly withheld exculpatory evidence. There are other cases as well that are probably more and less egregious. The ones in the cited SCOUTS are examples.

I think my main problem was that the defense (in the TV show!) didn’t even raise the issue of absolute or qualified immunity. That took me right out of the show because the whole time I was saying to myself, HE HAS IMMUNITY! I like the show because it gets the law right, but when it doesn’t, it’s very distracting.

But again: if the issue during the show was deciding if the former prosecutor would face criminal charges for his conduct, then he does NOT have immunity. The immunity discussed above is against civil liability, not criminal.

How many examples would it take for you to agree that your “suspension of disbelief” on this issue is not correctly tuned?

Now my memory is fuzzy. That’s what happens when you power through 3.5 seasons of a show while watching 4 episodes a night. I believe the issue at hand was if the prosecutor was liable for civil damages. However the show couched it in terms of a “court of inquiry” and there was appointed someone to represent the prosecution side. The actual person that was wrongly convicted was not present. I’m not even sure if that’s a real thing.

The show was probably riffing on the recent criminal conviction of former Williamson County (Texas) District Attorney Ken Anderson for withholding exculpatory evidence in the murder trial of Michael Morton. FTA:

Immunity from civil lawsuits! Not criminal prosecution!

If a defendant is wrongly convicted due to any kind of prosecutorial misconduct, and the true facts eventually come to light, and even if prosecutorial immunity applies, does the original defendant have access to civil remedies against the state, even if not against the prosecutor personally?

That sounds more like a professional discipline hearing than a civil or criminal case.

That sounds right! The prosecutor in question on the show was serving as a judge as well. Barry Scheck has also made an appearance on the show and the show has mentioned the Innocence Project a few times.

On the show the prosecutor was exonerated and his co-counsel at the time was shown to be the party potentially responsible (yhough ambiguous if he actually did anything). No charges were brought against that guy.