The XX Factor

Even the Worst Prosecutors Can’t Be Sued-and That’s the Way It Has To Be

Supreme Court followers (and NPR listeners) heard an outrageous story today-that of an innocent man who spent more than two decades in prison for a murder he didn’t commit before evidence of the apparent gross racism and misconduct of the police and prosecutors who put him there was uncovered. It’s hard not to crave justice for this man-but what seems just for him will make justice less likely for everyone else.

Lawyers for Terry Harrison have argued that although it’s long been clear that prosecutors cannot be sued for doing their job-for actually prosecuting a defendant for a crime-there is no immunity for investigative activity. Harrison claims he can sue his prosecutors for their participation in what was at best a botched investigation and at worst an outright conspiracy to arrest the wrong person for the crime. In other words, he’s not suing them for prosecuting his trial, he’s suing them for helping to put him in a position to be tried in the first place.

Listening to the facts-which include a star witness coached to lie and the withholding of evidence against another suspect and are soaked in racist implications-it’s hard not to want some revenge for Harrison. But to allow him to sue the prosecutors in his case for investigative activity would have one simple, immediate result across the country: no more prosecutors involved in investigating crimes. If prosecutors (lawyers all) can be sued only for activity that takes place before an indictment, then they simply won’t get involved before an indictment-and that’s not a good thing.

The more people involved in any investigation, the more likely it is that  the truth will be uncovered and that any laziness or corruption will be revealed-or at least stymied. Taking prosecutors out of that process would leave it entirely in the hands of the police, and the trouble there isn’t that the police are more corrupt or lazy than prosecutors, it’s simply that far more power-too much power-will rest in far fewer hands. More people, not fewer, will be wrongfully convicted if prosecutors are forced to step back from the early stages of an investigation.

I’m a former prosecutor, and I’m sickened by what happened to Terry Harrison. That’s not the system I was proud to be a part of. But the practical effects of giving him his day in court go far beyond what’s obvious when you first hear his story. I hope that some justice can be found for Terry Harrison, but a win in court today won’t give him back the years he’s lost. It will increase the practical chance that others will continue to find themselves in his position. Sometimes justice for one is simply not justice for all.