Criminal law

Georgia’s Attorney General’s law should target abuse and avoid politics


Florida Governor Ron DeSantis hanging The locally elected public prosecutor last year due to “negligence,” but prof Federal judge I found the explanation “false”. The court said the real reason for the suspension was to advance the ruler’s political fortunes.

The evidence showed that the near-final draft of the executive order announcing the suspension said the quiet part out loud: It charged State Attorney General Andrew H. Warren is a “progressive attorney” and a Democrat, neither of which surprised the local voters who elected him. as a reformer.

Now, elected officials in other states are trying to follow DeSantis’ lead, playing the game for political points while ignoring the opportunity to improve the justice system. Instead, states should look to prosecutorial abuses that lead to real harm. Case in point: Georgia.

Proposed Georgia Law

The legislature will soon consider similar bills to create a prosecution oversight committee that could threaten to subpoena locally elected prosecutors to express disagreement with various criminal statutes, the same form of “negligence” DeSantis alleged.

the new law It would make comprehensive statements about the prosecutor’s unwillingness to prosecute certain crimes as a form of misconduct. One of the main concerns of the bill’s supporters is opposing criminal prosecutions under Georgia’s so-called fetal heartbeat law, which restricts abortions to about six weeks.

Fulton County District Attorney Fannie Willis appears to be at least one target of the legislation. Last year, she voiced her opposition to women being prosecuted for “personal healthcare choices”.

It could also infuriate the Republican legislative majority by impeaching former President Donald Trump over his phone call that required Georgia Secretary of State Brad Raffensperger to get 11,780 votes, one more vote than he needed to win the state’s electoral votes.

Testifying against the legislation, Willis noted that it was never deemed necessary prior to 2020, when the number of elected minority attorneys general nearly tripled.

Prosecution protection in the Echols case

In contrast to current efforts, the Georgia legislature buried its head in the sand when it was drawn into a genuine controversy involving the attorney general just a few years ago. Douglas Echols, a black man, served seven years in prison for kidnapping and rape before DNA tests conducted by the Georgia Crime Lab confirmed his defense of mistaken identity.

However, Chatham County District Attorney Spencer Lawton refused to acknowledge Echols’ innocence and fought against his release and the overturning of his conviction. The court ordered it anyway, and Lawton filed papers saying he would not bring a new trial.

However, after the Georgia Claims Advisory Board twice voted unanimously to support compensation for Echols’ wrongful imprisonment, which led to his divorce and loss of his pension, Lawton forwarded a letter to key lawmakers falsely telling them that Echols was still under indictment for rape and kidnapping.

Fearing negative political consequences if they compensate someone the attorney general insists is guilty and is still under indictment, lawmakers never put the bill to a vote, the first time it has done so after approval by the state’s Board of Claims.

Echols sued Lawton in federal court, where she struggled before being dismissed by a district court judge. in 2019, Eleventh arrondissement He held that the facts presented by Echols showed that Lawton had committed the libel in his own right by falsely claiming that Echols had been accused of heinous offences.

The Court also held that the First Amendment provided no defense to the Attorney General for his allegedly defamatory statement which he had made in retaliation against Echols. However, insofar as the Court condemned the actions of the Prosecutor, it nonetheless refused to compensate Echols because it held that the Prosecutor was entitled to qualified immunity. Qualified immunity is a much-criticised principle that protects official misconduct unless the official notes that the action would violate the Constitution.

The Eleventh Circuit recognized that other courts had found conduct like Lawton’s to be unlawful and that Georgia law imposed moral requirements on prosecutors that he had failed to meet, but upheld Lawton’s immunity because no court within the Eleventh Circuit had ever said that such conduct violated a constitutional right .

One of the judges on the panel, a visitor from the Sixth Circuit, said he felt compelled to agree because of the circuit’s precedents. However, he said that his court had no difficulty in denying qualified immunity because the Prosecutor’s conduct “shocked the conscience” and decisions issued outside the Chamber should have provided counsel with the necessary notice of his obligations.

The saving grace, he wrote, was the decision in this case that has now established this notice so that qualified immunity will never provide a defense for this type of misconduct again.

The problem is overtaking

The current efforts in Georgia, which follow DeSantis’ scheme, serve no useful purpose – and they are not far removed from the ongoing farce in Saudi Arabia, where 10 judges were recently charged with treason for being too lenient in sentencing convicted terrorists from the authorities’ point of view. that be.

Rather than politicize criminal prosecutions, the Georgia legislature should have learned from the Echols case that the real problem is when plaintiffs genuinely misbehave and direct their energies toward addressing prosecutorial abuses, an oft-neglected problem afflicting minority defendants like Echols.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author info

Robert S. Beck He is a constitutional attorney with the Center for Constitutional Litigation and has argued cases before the US Supreme Court and appeals courts across the country. He was an appellate attorney for the Echols case mentioned in this article.

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