Competition, economists will tell you, results in better products at lower
prices. It is easily argued, however, that the uniquely human property of deliberative capability 'results in better products
at lower prices' simply as a natural consequence of that property in
Be that what it be then -and more to the point here, is that competition is
nothing more than primitive pecking order in
operation -a genuinely poor mechanism (per above) for running a government/economy.
Bottom line here -the news article here, is that law practice today -criminal
law in particular, is fundamentally adversarial and therefore
fundamentally pecking-order-based; it's all about winning regardless of right or wrong.
January 10, 2011, Los Angeles Times
Supreme Court takes dim view of suing prosecutors
The high court often rules that prosecutors, like judges and grand jurors, are
part of the judicial process and must be protected from harassment that could
deflect them from doing their duty.
By David G. Savage, Washington Bureau -Reporting from Washington —
After 14 years on Louisiana's death row, John Thompson had one month to live
when he received a stapled letter from his lawyers with an unusual request.
They asked him to prick his finger with the staple, put drops of blood on the
letter, seal it and return it the same day.
"I was cranky and disillusioned that day. I was preparing to
tell my family this execution date was final," he recalled. His appeals were
over, and he was scheduled to die the day before his son graduated from high
school. "But when they asked for blood, I thought they must have found
Prosecutors in the New Orleans district attorney's office had
intentionally hidden a blood test that would have unraveled the criminal case
against Thompson. By a stroke of luck, a young investigator scouring the crime
lab files found a microfiche copy of it. Thompson's blood type did not match.
That single piece of evidence led eventually to Thompson being declared
innocent of murder.
After he was freed, Thompson sued the office of now-retired
Dist. Atty. Harry Connick, and a New Orleans jury awarded him $14 million. But
oral arguments at the Supreme Court in the fall suggest he may not see a nickel
of it. The high court has taken a dim view of suing prosecutors, and in
Thompson's case, the court's conservatives led by Justice Samuel A. Alito Jr.
questioned whether the district attorney's office should be held responsible
for the misdeeds of a few prosecutors.
Defense lawyers say a series of high court rulings shielding
prosecutors from damages, including one two years ago in a Los Angeles case,
have created a situation in which abuse is tolerated and the falsely accused
are more likely to go to prison, or worse. The justices have barred suits
against individual prosecutors even when they lie about evidence in court. And
increasingly, the high court has been shielding district attorney's offices
from being sued for a pattern of wrongdoing by their prosecutors.
Researchers who have examined scores of cases of those who
were freed because of DNA evidence say misconduct by prosecutors is one of the
leading causes of wrongful convictions.
Defendants are supposedly protected by the 1963 ruling in
Brady vs. Maryland, which told prosecutors they must reveal evidence that could
free a criminal defendant.
"The problem is that Brady violations are hidden and can
forever remain hidden," said University of Virginia law professor Brandon
"The experience of these DNA exonerees certainly suggests
that Brady violations may be more pervasive than anyone would like to think,"
Garrett said. "Today, there is no excuse for systems where crucial lab reports
and detective interview notes simply disappear, only to be found years after a
Though crime experts point to the need for greater scrutiny
of prosecutors, the high court has been erecting a stronger legal shield
against suing them for wrongdoing. Prosecutors, like judges and grand jurors,
are part of the "judicial process" and must be protected from harassment that
could deflect them from doing their duty, the justices have ruled.
"They are closing off any meaningful remedy for the most
serious misconduct," said Pace Law School professor Bennett Gershman, who has
written widely on misconduct by prosecutors. "The Thompson case is a dramatic
illustration of how an innocent person was nearly executed. If the court is
insensitive to that, it tells you where we are with the criminal justice
The New Orleans case, Connick vs. Thompson, is scheduled to
be decided early this year. It is the third in three years in which the
justices have taken up appeals from prosecutors who were successfully sued for
sending innocent people to prison.
Two years ago, the justices shielded the Los Angeles County
district attorney's office from being sued for using jailhouse informers who
repeatedly lied to juries. The ruling threw out a suit by Thomas Goldstein, who
spent 24 years in prison for a murder in Long Beach he did not commit.
Last year, the court heard the case of two Iowa prosecutors
who were sued for framing two black teenagers for the murder of a security
guard even though witnesses had pointed to a suspect who was white. In asking
for the claim to be tossed out, the Iowa prosecutors asserted "there is no
freestanding constitutional right not to be framed." A settlement was reached
before the justices could issue a ruling.
The police, like other public officials, can be sued if they
knowingly violate a person's constitutional rights, the court has said. By
contrast, prosecutors, like judges, were given a total immunity from suits even
if they deliberately violated the law. Otherwise, "harassment from unfounded
litigation" could deflect from doing their duty, the court said.
Thompson has attracted support from Paul D. Clement, U.S.
solicitor general in the George W. Bush administration, who filed a friend-of-
the-court brief supported by former Justice Department officials.
"Prosecutorial immunity is the 600-pound gorilla in all these
cases," said Clement in an interview. "Step back and ask yourself the question:
Which of these people should know better? The prosecutor or the police
Yet under the high court's rules, the prosecutor who commits
"intentional wrongdoing" is shielded, but not the police officer, he said.