Pottawattamie Lost

I don't know whether to breathe a sigh of relief, or gnash my teeth: But the Supreme Court has dismissed without decision the case of Pottawattamie County, et al., v. McGhee, et al. (08-1065). That's because the parties settled the case for a reported sum of $12 million. By dismissing the case, the Supreme Court constructively endorsed the practice of municipalities' insuring public officials for what amounts to conduct that shocks the conscience.

The issue in Pottawattamie was simple: Were prosecutors immune from suit when they knowingly procured false testimony and then used it in the prosecution of innocent men? It takes balls as big as a freak show pumpkin to assert such an immunity, but given the current state of the law, why not? Our courts are systematically eviscerating claims arising under 42 U.S.C. Section 1983 with cancerous new immunities. Why not just declare prosecutors off limits once and for all? I feared that would be the import of the Pottawatamie decision.

But it may be that it is still possible to shock the conscience of a Supreme Court justice. We won't know now until the next case of prosecutorial misconduct makes its way to the court.

The Pottawattamie plaintiffs claimed that their Fourteenth Amendment right to substantive due process had been denied by lawmen so bent on a conviction that they would lie to a judge and jury to obtain one. The plaintiffs were convicted, and spent decades behind bars before they were exonerated. Proof of a subtantive due process claim requires showing conduct that shocks the conscience; the conduct in question must be at odds with the norms of a civilized society, and so fundamentally jarring as to threaten the very concept of ordered liberty. This standard is almost impossible to meet in the United States: the judicial conscience, you see, is on the endangered species list, having been all but slaughtered by efficiency freaks and those enamored of the state's power.

I expected a defeat for the plaintiffs in Pottawattamie. Perhaps I was wrong.

Obviously, it takes a case or controversy to keep a case alive, and if the parties have resolved their differences in this case, then so be it. But still, I would have preferred the Court to retain jurisdiction over the case to decide its merits once and for all. Surely, the public importance of a decision involving prosecutors who will lie to obtain a conviction raises issues fundamental to a republic. The case was on submission: the Court should have reached a decision. Substantial questions still remain about when and whether prosecutors can be liable for lying.

Instead, what we ended up with is the worst of all possible worlds, especially if you are are a taxpayer in Pottawattamie County. When lawyers for the lawmen agreed to ante up a fortune, they agreed to pay funds from the public fisc. In other words, the good people of the county are now offering financial insurance to conduct that should be regarded as a crime. And the lawmen apparently will suffer not at all. Will there be a revolt in the county? Probably not. The sheep, you see, are content to be slaughtered: that's how we ended up with a court system increasingly numb to the claims of justice.

Sadly, I expect little else when it comes to claims of official misconduct. We drapes these claims in the same species of deceit we use on juries in all manner of civil cases: We tell the jury they are the conscience of the community, and then look them straight in the eye and lie to them. They must never learn of insurance. Oh, if they learned the truth a plaintiff might be given too much money. That would be bad, we croak when no one is looking.

So instead we hide the truth from juries and call it justice. In Pottawattamie County that means prosecutors can lie, cheat and steal. And when they get caught, taxpayers can pay the damages. It's time for a new word in American life and culture. What do you say of a man or woman whose been snookered, made a fool of, treated as a fool, and then told that everything is fine? Why, the person's been pottawattamied, of course.

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