PROSECUTORS SHOULDN'T BE ABOVE THE LAW: BY GIVING POWERFUL LAW ENFORCEMENT OFFICIALS ABSOLUTE IMMUNITY FROM CIVIL LIABILITY, THE SUPREME COURT LEAVES THEIR VICTIMS WITH NO RECOURSE.

• Author: Binion, Billy

WHEN A STORM flooded Baton Rouge in 2016, Priscilla Lefebure took shelter with her cousin and her cousin's husband, Barrett Boeker, an assistant warden at the Louisiana State Penitentiary in Angola. During her stay at her cousin's house on the prison grounds, Lefebure later reported, Boeker raped her twice--first in front of a mirror so she would have to watch, and again days later with a foreign object.

Lefebure's allegations led to a yearslong court battle--not against her accused rapist but against District Attorney Samuel C. D'Aquilla, who seemed determined to make sure that Boeker was never indicted. As the chief prosecutor for West Feliciana Parish, which includes Angola, D'Aquilla sabotaged the case before it began.

When a grand jury considered Lefebure's charges, DAquilla declined to present the results of a medical exam that found bruises, redness, and irritation on Lefebure's legs, arms, and cervix. Instead, he offered a police report with his own handwritten notes, which aimed to highlight discrepancies in her story. D'Aquilla opted not to call as witnesses the two investigators on the case, the nurse who took Lefebure's rape kit, or the coroner who stored it. And he refused to meet or speak with Lefebure at all, telling local news outlets he was "uncomfortable" doing so.

The lawyer that Boeker hired to represent him was a cousin of the district attorney, Cy Jerome D'Aquila (who spells his name slightly differently). Boeker did not need his services very long, since the grand jury predictably declined to indict him.

After that fiasco, Lefebure sued Samuel D'Aquilla in federal court, saying Boeker falsely claimed his encounters with her were consensual and sought D'Aquilla's assistance in blocking rape charges. According to the lawsuit, D'Aquilla was happy to help. Lefebure accused D'Aquilla of violating her rights to equal protection and due process by deliberately crippling her case against Boeker.

Such lawsuits typically are doomed from the start, because prosecutors enjoy absolute immunity for actions they take in the course of their prosecutorial duties. That means victims of prosecutorial malfeasance cannot seek damages even for blatant constitutional violations. When district attorneys falsify evidence, knowingly introduce perjured testimony, coerce witnesses, or hide exculpatory information from the defense, their victims generally have no legal recourse. And although such misconduct theoretically can trigger professional disciplinary action, including disbarment, that rarely happens.

While debates about criminal justice reform tend to fracture along political lines, prosecutorial immunity need not be a partisan issue. One of Lefebure's attorneys, Jack Rutherford, is a prominent transgender lawyer with progressive political commitments. Her other attorney, prior to his death in September, was Ken Starr, the Republican whose investigation led to former President Bill Clinton's impeachment. When the government appealed a federal judge's decision in Lefebure's favor, the American Conservative Union, the group that puts on the annual Conservative Political Action Conference, filed a brief on her behalf, as did several victim advocacy groups.

The members of this unlikely coalition may not see eye to eye on much, but they agree that government officials should not have carte blanche to abuse their powers.

'THE WRONGS DONE BY DISHONEST OFFICERS'

THE SUPREME COURT announced the doctrine of absolute immunity for prosecutors in the 1976 case Imbler v. Pachtman. The Court ruled that a man who had spent years in prison could not sue a prosecutor who allegedly withheld evidence that ultimately exonerated him. The justices approvingly quoted a sentiment that Learned Hand expressed as a judge on the U.S. Court of Appeals for the 2nd Circuit in 1949: "It has been thought better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."

Absolute immunity for prosecutors was a product of judicial activism at the highest level, and it seemed to contradict the plain meaning of federal law. Under Title 42, Section 1983 of the U.S. Code, a provision of the Civil Rights Act of 1871, "every person" who deprives someone of constitutional rights "under color of any statute, ordinance, regulation, custom, or usage, of any State" is "liable to the party injured," who can seek damages in federal court.

Despite that broad language, the Supreme Court has grafted exceptions onto the statute. They include "qualified immunity," which shields police and other government officials...