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Trial lawyers: rising or sinking to others' definitions

The Tragicomedy of "Peer Review"

In Imbler v. Pachtman, 424 U.S. 409 (1976), an activist Supreme Court read into 42 U.S.C. Sec. 1983 – which allowed for no immunities - prosecutorial immunity.  Although the Court recognized that absolute “immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of his liberty,” id. at 427, this sacrifice of the individual was necessary for “the broader public interest.”  Id.  Moreover, a “malicious or dishonest” prosecutor would still face discipline because

a prosecutor stands perhaps unique among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.

Id. at 428-29.  Sounds fair, no?  No.

In Kalina v. Fletcher, 522 U.S. 188 (1997), a Washington state prosecutor, under oath, misstated material facts in a probable cause hearing.

Kalina's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school, petitioner stated that respondent had "never been associated with the school in any manner and did not have permission to enter the school or to take any property."  In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school.  In fact, the employee did not identify respondent.

Id. at 121.  Was Ms. Kalina subject to “professional discipline” by “an association of [her] peers”?  Was she at least publicly criticized?  Nah. 

Instead, they all filed amicus briefs on her behalf!  Id. at 120 ("Briefs of amici curiae urging reversal were filed [for]... Washington, ... for the Thirty-Nine Counties of the State of Washington, ... and for the National District Attorneys’ Association et al.")  So much for peer review.

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