The audacity of the idea that a prosecutor could knowingly introduce fabricated evidence in a criminal trial and escape all liability is mind-boggling.
Deputy Solicitor General Neal Katyal is in this case on the side of the prosecutors. He says Harrington and McGhee are asking this court “to announce for first time ever that there is a free-standing due process right not to be framed.” (Founding Fathers. Rolling. Graves.) Justice Stephen Breyer objects to this framing of the issue, saying “there is no free-standing right. There is just a right not to convict a person with made-up evidence.“
(emphasis added)
Katyal clarifies that "absolute immunity doesn't exist to protect bad apples. It reflects a larger interest in protecting judicial information coming into the judicial process." He says, "If prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence."
But Sotomayor retorts that you want a prosecutor to "flinch when he suspects evidence is perjured or fabricated." In fact you want him to do more than just flinch. You want him to stop. She adds that the two prosecutors in this case were never disciplined for their conduct.
(emphasis added)
Dahlia Lithwick’s piece on Slate.
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