Florida Gov. Ron DeSantis last year suspended a locally elected prosecutor for “neglect,” but a federal judge found the statement “false.” The real reason for the suspension was to bolster the governor’s political fortune, the court said.
Evidence showed that a near-final draft of the executive order announcing the suspension said the quiet part out loud: Attorney Andrew H. Warren was accused of being a “progressive prosecutor” and a Democrat, which the local voters who elected him neither came as a surprise as a reformer.
Now elected officials in other states are trying to follow DeSantis’ draft, playing the game for political points while ignoring an opportunity to improve the justice system. Instead, states should watch out for prosecutorial overreach that leads to real harm. Case study: Georgia.
Georgia’s proposed law
His legislature will soon consider similar bills creating a prosecutor’s oversight commission that could threaten locally elected prosecutors with dismissal if they disagree with various criminal statutes, the same form of “neglect” that DeSantis alleged.
The new law would make sweeping statements about a prosecutor’s unwillingness to prosecute certain crimes a form of wrongdoing. A key concern for supporters of the bill is opposition to prosecution under Georgia’s so-called fetal heartbeat law, which limits abortions to around six weeks.
Fulton County District Attorney Fani Willis appears to be at least one target of the legislation. Last year, she spoke out against prosecuting women for their “personal health care.”
She could also draw the wrath of the Republican parliamentary majority by impeaching former President Donald Trump over his phone call asking Georgia Secretary of State Brad Raffensperger to find 11,780 votes, one vote more than he needed to win the state’s electoral votes.
Willis testified against the law, noting that it was never deemed necessary before 2020, when the number of elected minority prosecutors nearly tripled.
Prosecution in the Echols case
Contrary to current efforts, the Georgia legislature stuck its head in the sand a few years ago when it became embroiled in a real controversy involving a prosecutor. Douglas Echols, a black man, was serving seven years in prison for kidnapping and rape before DNA testing conducted by the Georgia Crime Lab confirmed his defense of false identity.
Despite this, Chatham County District Attorney Spencer Lawton refused to admit Echols’ innocence and campaigned to have his release and conviction overturned. The court ordered it anyway, and Lawton filed papers stating he would not press new charges.
After the Georgia Claims Advisory Board twice unanimously voted to support compensation for Echols’ wrongful imprisonment that led to his divorce and forfeiture of his pension, Lawton chimed in with a letter to key lawmakers wrongly telling them: announced that Echols still faces charges of rape and kidnapping.
Fearing adverse political ramifications if they compensated someone who prosecutors found guilty and still faced charges, lawmakers never put the bill to a vote, the first time it had done so after approval by the state claims agency.
Echols sued Lawton in federal court, where it languished before a district court judge dismissed it. In 2019, the Eleventh Circuit ruled that the facts presented by Echols showed that Lawton had committed defamation per se by falsely claiming that Echols had been charged with heinous crimes.
The court also ruled that the First Amendment offered the prosecutor no defense for his allegedly defamatory testimony in retaliation against Echols. As much as the court condemned the prosecutor’s actions, it still refused to compensate Echols because it believed the prosecutor was entitled to qualified immunity. Qualified immunity is a much-criticized doctrine that protects official wrongdoing unless the official had realized the action would be unconstitutional.
The Eleventh Circuit recognized that other courts had found conduct like Lawton’s unlawful and that Georgia law imposed ethical requirements on prosecutors which it failed to observe, but upheld Lawton’s immunity as no court within the Eleventh Circuit had previously determined that the conduct violated a constitutional right.
A judge on the panel, sitting as a visitor from the Sixth Circuit, said he felt compelled by precedent to agree. However, he said his court would have had no difficulty in denying qualified immunity because the prosecutor’s behavior “shakes one’s conscience” and decisions taken outside the judicial district should have provided a lawyer with the necessary notification of his duties.
The saving grace, he wrote, is the ruling in this case, now determined that qualified immunity would never offer a defense for this type of wrongdoing again.
The problem is overreach
The current effort in Georgia, following the DeSantis draft, serves no useful purpose — and is not far removed from the travesty that’s going on in Saudi Arabia, where 10 judges were recently indicted on treason charges for failing to deliver sentences convicted terrorists in the view that those in power were too lenient.
Rather than politicizing prosecution, Georgia lawmakers should have learned from the Echols case that the real problem is that prosecutors are really misbehaving and are directing their energies to addressing prosecutorial overreach, a much-neglected issue with which Defendants from minorities like Echols are facing.
This article does not necessarily represent the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Information about the author
Robert S. Peck is a constitutional attorney at the Center for Constitutional Litigation and has represented cases before the US Supreme Court and appellate courts across the country. He was appellate attorney in the Echols case mentioned in this article.
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