Review and questions Our speaker tonight Official misconduct

Review and questions - Our speaker tonight - Official misconduct and immunity - Compensation - Your questions for Wednesday: what topics to review? • Questions before we start? • Reminder: Kyle May questions about death row • Topics for Wednesday? Baumgartner, POLI 203, Spring 2018

Henry Mc. Collum and Leon Brown • See the CDPL overview on the web page for information about the case. • Basics: Arrested, confession pulled out of them, “Deadliest DA in the World” seeks and obtains death sentences; true perpetrator lives 100 feet from the crime scene, arrested 3 weeks later for a similar crime; they all go to jail. Leon later has his sentence reduced from death to LWOP. Both exonerated only after the case goes to the NC Innocence Inquiry Commission, which has subpoena power, and they find a cigarette butt in the files with DNA linking it to the true perpetrator. Ken Rose had asked for these files numerous times over 20 years, but they search was always done by the police department which was responsible for the evidence. NCIIC has power to do its own search. Baumgartner, POLI 203, Spring 2018

The crime was particularly notorious • Justice Scalia in Callins v. Collins (1994), on the conditions of lethal injection. • “For example, the case of the 11 -year old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!” • 2014 NC General Assembly election campaign, attack on Democratic Rep. Hugh Holliman (Greensboro) for vote on the Racial Justice Act. Baumgartner, POLI 203, Spring 2018

2010 Campaign Flier featuring Henry Mc. Collum Baumgartner, POLI 203, Spring 2018

Crimes of Wrongful Liberty • Three weeks after Henry and Leon were arrested, another crime happened. That crime would not have happened if Roscoe Artis had been arrested for his earlier crime. But with Henry and Leon signing a confession, they were detained and the true perpetrator was left on the street. • 1, 000 felonies x 4% = 40, 000 • Say 25% have no underlying crime = 30, 000 wrongfully at liberty • Say each does two more crimes = 60, 000 crimes of wrongful liberty (that is, one every 10 minutes!) • Say each crime affects 20 people, loved ones, jury members, etc. : 1. 2 million people affected by such crimes, each year. Not a niche issue. Baumgartner, POLI 203, Spring 2018

Absolute and partial immunity • Absolute immunity: • A trial witness has absolute immunity with respect to any claim based on the witness’ testimony. • Therefore, perjury cannot give rise to a civil suit. This includes anyone who testifies in trial. • Qualified immunity: • “protects government officials from liability so long as they could reasonably believe that their conduct does not violate clearly established law” • Protects all but the plainly incompetent or those who knowingly violate the law. • Was a right violated? Was that right clearly established (so should have been known)? • Government agencies may not have a “pattern and practice” of constitutional violations (Monell claim) Baumgartner, POLI 203, Spring 2018

Case of John Thompson (Louisiana) • Sentenced to death in Angola Prison • Exonerated • Sues the Orleans Parish DA’s office for a “pattern and practice” of such things as suppressing evidence. • Shows it in his case, and in many other cases • Awarded $14 million in 2008 • State appealed, and in 2011 by 5 -4 vote the USSC rescinded the award: while they had done it to Thompson, they found no “pattern and practice”: isolated errors are inevitable and do not merit compensation, ruled the Court. Baumgartner, POLI 203, Spring 2018

Logic of immunity • Judges might be on the bench for 30 years. • If they did not have immunity, they might all end up bankrupt or in jail at the end of their careers, or worried about an error they may have made leading to such a lawsuit. • Ditto for DA’s. • So this is a well established area of law. • How high should the bar be for relief? • Note who will decide: other judges… Baumgartner, POLI 203, Spring 2018

Compensation • 27 states have some kind of compensation • New Hampshire: $20, 000 maximum • New York: $80, 000 per year, no maximum • Typically, nothing at all, many hurdles to get it • NC: Governor must issue a pardon of innocence to qualify for $700, 000. Has been done just a handful of times. • Civil Suits typically the only way to get significant compensation. Baumgartner, POLI 203, Spring 2018

Why so hard? • “Criminal element” • Maybe they did something else… • Sometimes prosecutors feel the exoneration was the injustice, not the conviction. That is, they do not believe they are innocent. Google any person convicted then released. Information about the original conviction will remain out there. Sometimes it’s hard to come to the revised conclusion that they were innocent… • You can think of other reasons why governments are stingy here. Baumgartner, POLI 203, Spring 2018

Duke Lacrosse case • Everything turned on its head • Privilege, wealth, good lawyers for the defendants • DA not only lost his position, but was later disbarred • Civil suit led to $50, 000 award • Not a single defendant had spent a night in jail. • Compare to John Thompson: 18 years on Death Row, $14, 000, later reversed. 18 years on death row v. a wrongful accusation… Baumgartner, POLI 203, Spring 2018