Immunity is a withering vestige of the privileges of Kings. In fact today we still refer to the immunity enjoyed by governments as "Sovereign" immunity. Immunity has been extended to various offices connected with government, including judges, lawyers, police officers and prosecutors. But those days may be over.
The Seventh Circuit Court of Appeals has ruled that prosecutors do not enjoy absolute immunity in every case. The decision arose out of the prosecution of a man, sentenced to death row who spent 17 years in prison until after his appeals and a new trial he was acquitted.
[The] Seventh Circuit has ruled that a prosecutor is not protected by immunity for allegedly coercing false testimony that sent a man to death row 17 years ago. Two prosecutors were accused of egregious misconduct: Lawrence Wharrie and David Kelley. The new opinion from the Seventh Circuit is Fields v. Wharrie, 2014 U.S. App. LEXIS 1333.
The matter went to a Seventh Circuit panel, which included conservative icon, Richard Posner. Writing for the majority, Posner held that it would be absurd to allow such prosecutors to claim immunity in such cases.
In discussing the Supreme Court’s 1993 decision in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), Posner added that “A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as ‘preparation’ for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.” [Turley] [italics added]
When the government acting through its agents does wrong and the agents are then shielded from liability, they certainly enjoy a benefit that does not exist among the general public. We may be seeing the day come when the last vestige of royal privilege is finally removed from the American system of justice, for all.
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