Bloomberg Law
March 21, 2023, 8:00 AM

Georgia’s Prosecutor Law Should Target Overreach, Avoid Politics

Robert Peck
Robert Peck
Center for Constitutional Litigation

Florida Governor Ron DeSantis suspended a locally elected prosecutor last year due to “neglect” but a federal judge found the explanation “false.” The real reason for the suspension was to bolster the governor’s political fortunes, the court said.

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

Now, elected officials in other states are trying to follow the DeSantis blueprint, playing the game for political points while ignoring an opportunity to improve the justice system. Instead, states should be looking at prosecutorial overreach that leads to real harm. Case in point: Georgia.

Georgia’s Proposed Law

Its legislature will soon consider similar bills to create a prosecutorial oversight commission that could threaten recall against locally elected prosecutors for expressing disagreement with various criminal laws, the same form of “neglect” that DeSantis claimed.

The new law would render blanket statements about a prosecutor’s unwillingness to prosecute certain crimes to be a form of misconduct. A primary concern of the bill’s proponents is opposition to criminal prosecutions under Georgia’s so-called fetal heartbeat law that restricts abortions to approximately six weeks.

Fulton County District Attorney Fani Willis appears to be at least one target of the legislation. Last year, she expressed opposition to prosecuting women for their “personal health care choices.”

She may also draw the ire of the Republican legislative majority by indicting former President Donald Trump for his phone call that asked Georgia Secretary of State Brad Raffensperger to find 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 before 2020, when the number of minority prosecutors elected nearly tripled.

Prosecutorial Protection in Echols Case

In contrast to the current effort, the Georgia legislature stuck its head in the sand when it was drawn into a real controversy involving a prosecutor 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.

Nonetheless, Chatham County District Attorney Spencer Lawton refused to concede Echols’s innocence and fought against his release and the overturning of his conviction. The court ordered it anyway, and Lawton filed papers stating that he would not bring a new prosecution.

Still, after the Georgia Claims Advisory Board twice voted unanimously to support compensation for Echols’s wrongful incarceration, which resulted in his divorce and the loss of his pension, Lawton weighed in with a letter to key legislators falsely telling them Echols remained under indictment for rape and kidnapping.

Fearing adverse political consequences if they compensated someone the prosecutor insisted was guilty and still under indictment, legislators never brought the bill to a vote, the first time that had ever happened after approval by the state claims board.

Echols sued Lawton in federal court, where it languished before a district court judge dismissed it. In 2019, the Eleventh Circuit held that the facts presented by Echols showed that Lawton had committed libel per se by falsely claiming that Echols was under indictment for heinous crimes.

The court also held that the First Amendment provided no defense for the prosecutor for his allegedly defamatory statement made in retaliation against Echols. However, as much as the court condemned the prosecutor’s actions, it nevertheless denied compensation to Echols because it held that the prosecutor was entitled to qualified immunity. Qualified immunity is a much-criticized doctrine that protects official misconduct unless the official had notice that the action would violate the Constitution.

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

One judge on the panel, sitting as a visitor from the Sixth Circuit, said he felt compelled to agree because of circuit precedent. Yet, he said his court would have had no difficulty denying qualified immunity because the prosecutor’s conduct “shocks the conscience” and decisions outside the circuit should have provided the necessary notice to a lawyer about his obligations.

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

The Problem Is Overreach

The current effort in Georgia, following the DeSantis blueprint, serves no useful purpose—and is not a far cry from the travesty going on in Saudi Arabia, where 10 judges were recently charged with treason for being too lenient in sentencing convicted terrorists in the view of the powers that be.

Instead of politicizing criminal prosecutions, the Georgia legislature ought to have learned from the Echols case that the real problem is when prosecutors truly misbehave and direct its energies to addressing prosecutorial overreach, a much-neglected problem experienced by minority defendants like Echols.

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

Author Information

Robert S. Peck is a constitutional lawyer with the Center for Constitutional Litigation and has argued cases in the U.S. Supreme Court and appellate courts throughout the country. He was appellate counsel in the Echols case mentioned in this article.

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