"A prosecutor ... may receive absolute immunity from suit for acts violating the Constitution in order to advance important societal values." -Elena Kagan, Solicitor General, 2009

After the Civil War, Congress passed several civil rights laws, including one allowing anyone whose said rights had been violated to sue those responsible, especially if these had been acting "under color of law" -- that is, as part of law enforcement.

Naturally, judges, prosecutors, and police have hated that provision ever since, and the courts have done their best to bleed it of meaning.

In 2009, Elena Kagan, then-solicitor general, argued before the Supreme Court that prior to trial, a defendant has no right not to be framed, because false evidence does no real harm until it is actually used in court.

"Fabrication Of Evidence During An Investigation Does Not, By Itself, Violate The Constitution" read one of the subject headings of her brief.  And she quoted the opinion of a lower court:

"We do not see how the existence of a false police report, sitting in a drawer in a police station, by itself deprives a person of a right secured by the Constitution and laws." (Pottawattamie vs. McGhee)

Justice was never so blind as this -- but the Supremes, sitting as the very foundation of the legal establishment, didn't bat an eye to object.  Indeed, one might have expected them to sing along in chorus.

It is the prosecutors, according to this point of view, who need to be protected -- they are the ones in danger of being sued.  Hence, society's primary interest must be in preserving their "courage and independence."  (What prosecutor will pursue a case if he fears he will be sued afterward?)  And if this results in some innocent persons suffering and left without redress, that is just the price we have to pay "in order to advance important societal values" -- that is, that same "courage" of our prosecutors.

This month, the Supremes (Rehberg v. Paulk, 9-0) have extended that concept: protection against suits is now affirmed not only for prosecutors, but also for witnesses...and even police officers when they testify.  And if those officers lie, it does not lessen the interest society has in preserving the principle (or establishing it anew) that pesky lawsuits must not be allowed to throw a beam into the spokes of justice.

Witnesses "might be reluctant to come forward to testify," and even if a witness took the stand, the witness "might be inclined to shade his testimony in favor of the potential plaintiff" for "fear of subsequent liability."

As for police officers:

If police officer witnesses were routinely forced to defend against claims based on their testimony, their "energy and attention would be diverted from the pressing duty of enforcing the criminal law." 

Fair enough.  As well:

[A] police officer witness' potential liability ... could influence decisions on appeal and collateral relief[.]

So let the officers lie.  If it's before trial, then no harm, no foul.

How does this play out in the real world?  The vast majority of criminal cases never go to trial at all; they are settled with plea bargains. 

Consider the example from Durham in 2006. There, District Attorney Nifong had no case against three of Duke's lacrosse players who had been falsely accused of rape.  But he obtained a grand jury indictment after officers lied to the jurors (who heard 80 other cases that same day, and returned true bills of indictment for all of them).

All Nifong needed thereafter was intimidation, not a trial.

He gave seventy interviews to the media, regaled the public with gothic tales of horror and sexual innuendo, and threw in a dash of racial incitement (though he was careful not to claim that hate crimes were involved, since that would have brought in the feds to do an independent investigation).

He arrested potential witnesses and falsified or concealed evidence.

He threatened every team member with being charged as an accomplice, while reminding everyone that he could make the case go away "with the stroke of a pen."  He likewise warned -- via another case -- that as district attorney, he had no power to protect witnesses...that they were on their own.

He met privately with the head of the New Black Panther Party, Malik Zulu Shabazz, and, according to Shabazz, provided him with information on the case.  Shabazz's Panthers demonstrated outside the courthouse, and a uniformed member sat inside the court, making vehement death threats against a defendant.  Photos of the defendants were also distributed by the Panthers, who promised to bring "justice."

And in the end, seventeen percent of potential jurors polled admitted they would vote to convict even if the players were innocent.

The chances of a fair, unbiased hearing in such an atmosphere must have caused any defendant to seriously consider accepting a plea deal rather than risk conviction -- and then confinement in a prison system where gangs had already targeted said defendant.  That the lacrosse players escaped such a fate was just short of a miracle. 

Yet none of Nifong's actions, according to the prevailing legal views, violated the constitutional rights of the lacrosse player defendants, because in the end, the charges against them were thrown out.  They never went to trial.  Hence, their rights -- and life an liberty -- were never actually taken from them.

What courage this must inspire in our prosecutors!  (Nifong almost succeeded!)

Moreover, the rights conferred by the post-Civil War laws -- whatever remains of them -- have been further constricted by the seepage of political correctness into jurisprudence.  In the Duke example, the presiding federal judge, James Beaty, had stricken the civil rights claims from the suits filed by the falsely accused players on the grounds that their ancestors came from the wrong continent.  Opined Beaty, those laws -- which specifically refer to "every citizen" and "every person" -- were actually intended to apply only to persons of African descent (as they were first passed to protect the rights of former slaves) -- and do not protect anyone else.  The good judge somehow knows that Congress really meant to say that, even though Congress used much broader language.

Doubtless the Supremes may wade into that discussion someday also.  And perhaps then the question will naturally follow: exactly who may be considered of African descent?  Does a man who is half-African, such as President Osama, qualify?  Or how about Walter White, an early leader of the NAACP?  "I am a Negro.  My skin is white, my eyes are blue, my hair is blond.  The traits of my race are nowhere visible upon me" (autobiography, A Man Called White, p. 3).

Perhaps the Supremes will enjoin the government to establish a department of racial purity, to parse such rights more precisely.

Nevertheless, until then, defendants of all hues will have to confront a system in which lying by the prosecution before trial, if not actually encouraged, is given a pass.

But when innocent persons can be coerced to "confess" to crimes (and even to crimes which never happened, as in Durham), then we have endorsed the methods of totalitarianism.

And that renders all the promises about due process, fair trial, and innocent until proven guilty no more substantial than the evening mist.