September 6 roundup


  • QI for prosecutors does work injustice in many cases–and if prosecutors continue to act in the same way as Chisholm did, it will eventually disappear.

    Prosecuting attorneys need to be policed–a perfect example is Marilyn Mosby–she tried, unsuccessfully, to prosecute a bike cop who showed up on the scene after Freddie Gray was arrested and who wasn’t in any position to do anything about how Gray was to be transported. In other words, she tried to ruin his life simply because he was there. Society does not have the moral right to ask Officer Nero to accept this injustice. At an absolute minimum, Mosby should have her ticket pulled. Same goes for Chisholm. This John Doe investigation was appalling.

    And the NYTimes had an article about Ferguson. Even if one accepts that prosecution is ok on some charges (dubious), the defendant is being prosecuted for false reporting for giving his name to the police officer as “Fred” rather than “Freddie.” QI allows such nonsense.

    • “QI for prosecutors does work injustice in many cases”

      Prosecutors generally have absolute, not qualified immunity.

      This case stemming from the Wisconsin Jon Doe investigations is a bit weird.

      The defendants claimed both qualified and absolute immunity.

      They added qualified immunity, because the plaintiff argued that absolute immunity did not apply because the defendants were acting as investigators, not prosecutors for purposes of the actions she was suing over.

      The Circuit Court decision spends a lot of time discussing qualified immunity and finally, concludes:

      “Archer has not met her burden in overcoming the defendants’ invocation of qualified immunity. The judgment of the district court is AFFIRMED.”

      Which seems very odd to me because according to the Circuit Court opinion:

      “The district court decided all issues in favor of the defendants. It granted the Prosecutors’ motion to dismiss, reasoning that they were absolutely immune for all their activities done pursuant to the John Doe investigation.”
      So, did the Circuit Court intend to affirm the Circuit Court Decision, or did they mean to over rule and decide that the defendants were not entitled to absolute immunity but were entitled to qualified immunity?

      I’m not sure even the Circuit Court panel that decided that case could provide a good answer.

      • Well, according to the ruling:

        We find it a bit artificial to squash them into either the absolute immunity box or the qualified immunity box, but fortunately, that is not necessary. If qualified immunity is available, it is enough to dispose of the present case.

        So the circuit court didn’t actually decide anything on the absolute immunity, but affirmed the lower court’s overall ruling that the case be dismissed.

        And in what I find to be a very annoying thing, the court decided qualified immunity applies without deciding whether the underlying right actually exists (“In sum, Garcetti might support either side”) which means the right is STILL not clearly established, and if this happens again they’ll be able to claim qualified immunity AGAIN.

        • “Well, according to the ruling:”

          The problem I have with that is that if they are entitled to absolute immunity than qualified immunity should not be available and vice versa.

          “And in what I find to be a very annoying thing, the court decided qualified immunity applies without deciding whether the underlying right actually exists”

          I agree, it’s annoying, but it’s standard SOP for these cases, Some of these issues (police confiscating cameras, destroying cameras or arresting people for photographing/filing them for example) can go over a decade and dozens of cases raised to the appellate level before any court even stops to consider clearly establishing the right at issue. Even SCOTUS plays this game.

  • Correct on QI. I meant to say, more generally, that immunity can work significant injustice.

  • Re John Doe:

    Sounds like it is open season on Republicans in Wisconsin.

    • That seems unlikely since the Wisconsin Supreme Court has called a halt to the John Doe II prosecution. If memory serves, the Wisconsin legislature has also revisited the law to make future abuse less likely, among other reasons to think a recurrence of the problem is not imminent.

      • A recurrence not imminent? Why not? Chisholm has imposed significant pain, and he has walked. Why wouldn’t others follow his lead and won’t activists think twice about exercising their rights?

        • “A recurrence not imminent? Why not?”

          Because the law in Wisconsin regarding John Doe investigations has been changed.

          1. Under the old law, a judge had unfettered discretion to issue a secrecy order that bound all participants.

          Under the revised law, a secrecy order can only be issued after an showing of good cause by the DA.

          Under the old law, the secrecy order bound all participants in the investigation including witnesses and targets.

          Under the new law the secrecy order can only cover the j judge, the district attorney or other prosecuting attorney, law enforcement personnel, interpreters, and court reporters. Targets of the investigation, witnesses and search targets can no longer be gagged.

          2. The new bill imposes a six month time limit on john doe investigations. This limit may be extended for additional six month periods if a majority of judicial administrative district chief judges find good cause for each extension. The individual votes must be available as public records.

          3. Adding new additional crimes/charges to the john doe investigation requires approval of a majority of judicial administrative district chief judges find good cause for each extension. The individual votes must be available as public records.

          4. Under the new law, the records reflecting the costs of the john doe investigation are public records.

          5.A big part of the problem with the john doe investigation against Walker’s supports was that the judge let the prosecutors leak information with out consequences while targets and witnesses were held to the gag order.

          But in addition to limiting the secrecy order to the judge, prosecutors, LEOs and other court workers involved, the new law imposes a $10,000 fine and/or nine month jail sentences for violating the secrecy order.

          John Doe investigation in Wisconsin are all but dead.