Court Hears Arguments Today on Attorney Inexperience and Prosecutorial Immunity

Two more lawyering cases will be argued at the Supreme Court today.  Wood v. Allen raises an issue certain to resonate with new lawyers and those who supervise them:  whether an attorney's inexperience may constitute ineffective assistance of counsel.  Pottawattamie County v. McGhee tests the doctrine of prosecutorial immunity where two prosecutors secured false testimony and introduced it at trial.  The ABA Journal offers an interesting summary here. 

For those of you tracking the Court's heightened interest in the law of lawyering this term, my latest count is ten cases.

Comments

[Stephen Gillers]

On Pottawattamie, Nina Totenberg's NPR brief description this morning said that the county's defense is that there is no freestanding constitutional right not to be framed in a criminal case. That's an attention grabber. What does freestanding mean? (I think that's the word she used.)

Of course, there is a right not to be framed. The question is: what is the remedy apart from a challenge to the conviction and perhaps discipline of the prosecutors. In this case, the defendants who served some 25 years in prison before exoneration, claim that the prosecutors procured false testimony and then introduced it in court.

It seems to me that the question is whether the immunity is qualified or absolute - or whether there is any immunity at all. How can there be any questions but that this alleged conduct violated the plaintiffs' constitutional rights under state law? Immunity is the issue.

And it seems to me that there should be no immunity, not even qualified, beause no prosecutor could have a good faith belief that he or she is permitted to invent evidence and suborn perjury. Even if the immunity is absolute for disgraceful conduct in court, the allegation here is that the falsity was procured outside of court. I suppose the court might say that the out of court conduct was close enough to the in court duties that it is also absolutely immune.

On the other hand, Brady violations are subject to actions for money damages.

The plaintiffs won below. The decision here will also reveal what some in the civil liberties community worry may be a too pro-law and order position by Sotomayor. We'll see. But to my mind, unless I'm missing something, and perhaps I am, this is not a hard case.