Asks Kennedy: "What if the prosecutor knows it's fabricated evidence? What if the police officer fabricates the evidence and says: 'Mr. Prosecutor, I'm a very bad man; I fabricated the evidence.' " Katyal says there is still no due process violation.
Kennedy sighs. "Again, the more aggravated the tort, the greater the immunity. ... You're basically saying you cannot aid and abet someone who is immune. And that's just not the law."
Katyal clarifies that "absolute immunity doesn't exist to protect bad apples. It reflects a larger interest in protecting judicial information coming into the judicial process." He says, "If prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence."
But Sotomayor retorts that you want a prosecutor to "flinch when he suspects evidence is perjured or fabricated." In fact you want him to do more than just flinch. You want him to stop. She adds that the two prosecutors in this case were never disciplined for their conduct.
Katyal says there were "14.4 million arrests in the year 2006 and 1.1 million felony convictions." Deciding this case against the prosecutors would allow any of those prosecutors to be sued for fabrication of evidence, since, as he puts it, "criminal evidence, unlike civil evidence, is messy. It often involves cooperation agreements, leniency agreements and the like." (This is itself something of a problem, one might contend.)
Former Solicitor General Paul Clement represents the two wrongfully convicted defendants. Justice Samuel Alito stops him with a very long question, the gist of which is that criminal witnesses are "not John Q. Public—who have never engaged in any wrongful activity." They are all liars and CFOs and mobsters and drug smugglers, and they all have "criminal records, previously committed perjury, made numerous false statements." Under Clement's reasoning, is the prosecutor on the hook for all of their deception too?
Clement suggests that the line for absolute immunity should be whether the fabrication "took place before probable cause attached," and Alito snaps back, "That's an entirely false picture of the way any sophisticated prosecution is handled today, completely false."
Clement warns the court of the perverse incentives it would create if the justices give prosecutors absolute immunity for everything they do, regardless of when it happens: "Suppose you're a prosecutor. You've participated in misconduct before trial. You now have the decision to make: OK, I was complicit in the fabrication of this perjured evidence; should I put it on into evidence? Well, let's see. If I don't put it on into evidence and I come clean now, I'm actually liable for the arrest and all the pretrial detention. If I actually introduce it into evidence now, I'm scot-free."
Breyer is worried that this rule will "discourage prosecutors from becoming involved in the witness-questioning process," which, in his view, acts as a "kind of check on the police."
But then, because he can, Clement ends with a three-pointer: "If the court's going to go back to first principles, let's look at the statute Congress passed in 1871. ... This is one of the great civil rights statutes. I think it's clear, from this court's cases, that the police officer that engages in misconduct has committed a grave, grave constitutional violation and ought to be liable. I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer. And I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct, but completed the scheme by committing further misconduct at trial."
The question for the court today is whether it is ultimately more worried about chilling prosecutors who want to introduce possibly fabricated evidence or giving them good reason—and the absolute freedom—to do so.
Correction, Nov. 6, 2009: This article originally contained a photograph misidentifying the U.S. Senate as the U.S. Supreme Court due to an erroneous caption by the photo provider.