Jefferson (Partially) Redeemed?
[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
The word “partial” is there because there is no chance of erasing the sin he committed by keeping other people in bondage. But a group of historians have come forward disputing that he fathered a child with Sally Hemmings, in essence saying it was a different Jefferson.
In a book due out Thursday, eminent scholars say it’s unlikely that Thomas Jefferson fathered Sally Hemings‘ children, disputing a decade’s worth of conventional wisdom that the author of the Declaration of Independence sired offspring with one of his slaves.
The debate has ensnared historians for years, and many thought the issue was settled when DNA testing in the late 1990s confirmed that a Jefferson male fathered Hemings‘ youngest son, Eston. But, with one lone dissenter, the panel of 13 scholars doubted the claim and said the evidence points instead to Jefferson’s brother Randolph as the father.
Now of course the problem I have with the notion of Jefferson having an affair with Hemings naturally isn’t the interracial aspect of it all—I’d be quite the hypocrite if I had a problem with that—but the fact that it is hard to call sex under those circumstances consensual. How much consent can there be when the law says the man is your owner, with the right to beat you and with it being practically easy to murder you?*
So I would be nice, I admit, to think less harshly of Jefferson, but this panel is not off to a good start. Like take that dissenter. The fact there is even one dissenter seems to be significant:
The commission, which worked without compensation, was formed at the behest of the Thomas Jefferson Heritage Society, an outside group that seeks to defend Jefferson’s image.
So this wasn’t a commission just gathered together to follow the evidence wherever it led. Rather it was a group of people on a mission to prove a specific thing… and they still had a dissenter!
And some of the logic on display is less than impressive:
The scholars also disputed accounts that said Hemings‘ children received special treatment from Jefferson, which some saw as evidence of a special bond between the third president and Hemings.
“It is true that Sally’s sons Madison and Eston were freed in Jefferson’s will, but so were all but two of the sons and grandsons of Sally’s mother Betty Hemings who still belonged to Thomas Jefferson at the time of his death. Sally’s sons received by far the least favorable treatment of those freed in Thomas Jefferson’s will,” said Robert F. Turner, a former professor at the University of Virginia who served as chairman of the commission.
Um, you don’t dispel the claim that Jefferson gave her sons special treatment by pointing out that her entire extended family was treated equally well. You do it by finding someone not related to the person he was allegedly sleeping with and showing that they got the same treatment, too.
But in the end each side will present its evidence, and the bulk of scholars will look at it neutrally and draw its own conclusions. I do have faith that eventually the truth will win out.
And in any case, read the whole thing.
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* Slave codes generally forbade the wanton murder—or rape for that matter—of slaves. However, slave codes also generally stated that a black person could not testify against a white person, making it easy for any white to commit any crime against any black person: by making sure no white people were around to testify against them.
[Posted and authored by Aaron Worthing.]
Sometimes Aaron you overthink this initial report, this came out in ’98, to whitewash Bill Clinton, it had resurfaced initially with Fawn Brodie, in his deconstruction of practically all Presidents, and the whole thing, came from Callender,
ian cormac (ed5f69) — 9/13/2011 @ 7:02 amLeft out of the discussion is that the “conventional wisdom” was mainly formed by the “spoken history” of the Hemmings family, which passed the knowledge down through the generations that Thomas Jefferson allegedly fathered the “love child” with Sally Hemmings.
DNA was used to “confirm” it, when the DNA actually only showed that “a Jefferson male” was the father. So, they tried to use circumstanital evidence as proof of fact, when it was anything but that.
SGT Ted (5d10ae) — 9/13/2011 @ 7:30 amB-but jefferson was a racist.
DohBiden (d54602) — 9/13/2011 @ 7:31 amDavid McCullough examined the Hemings/Jefferson rumors in some detail in his biography of John Adams.
According to McCullough, Jefferson’s own records indicate that he was present at Monticello at least nine months before Hemings gave birth, and that she never became pregnant when he was not there.
Bradley J. Fikes (8b75d4) — 9/13/2011 @ 7:40 amThis story has always been a part of the liberal desire to take down our heroes and replace them with liberal versions. While the conservative side usually sees heroes as men or women of great accomplishment, liberal heroes are usually victims who can be used to inspire grievance. The evidence that Jefferson fathered children by a slave has always been thin, but the liberal left has never allowed their narrative of grievance to be upset by mere facts.
Michael Gersh (07c560) — 9/13/2011 @ 7:57 amIs this another of those things I should feel guilty about?
Huey (d7cd42) — 9/13/2011 @ 8:13 amUm, you don’t dispel the claim that Jefferson gave her sons special treatment by pointing out that her entire extended family was treated equally well.
The claim is that Jefferson gave special treatment to Sally Hemings’ children because they were also his children. The counterevidence cited is that he gave the same (or better) special treatment to a larger group of people, most of whom could not have been his children, but all of whom shared a different quality: descent from Sally Hemings’ mother, who was the mistress of Jefferson’s father-in-law. Thus these people were all siblings or nephews of Jefferson’s late wife.
Rich Rostrom (28c1ad) — 9/13/2011 @ 8:26 amMan, In-Laws always cause such trouble.
Another Drew - Restore the Republic / Obama Sucks! (89e0e7) — 9/13/2011 @ 8:29 amTwo of Jefferson’s nephews were arrested and charged with murdering a slave named George. They might have been convicted except between bailing out of jail and the trial Lilborn and Isham Lewis chose suicide over the mercy of the law.
Jefferson treated his extended family like shit. Those other children who are used by the committee as an example of TJ’s benevolence, were seven-eighths European in ancestry and legally white according to Virginia law of the time. Saying Jefferson freed them is a rather generous characterization of the facts. The bare plain truth is they were considered legally white, and had to escape from TJ. The evil old bastard didn’t free anybody. He just didn’t set the hounds on their trail.
papertiger (e55ba0) — 9/13/2011 @ 10:02 amI included the Lilborn and Isham Lewis quip to show that it was in no way a trivial matter, even for the politically connected, to murder a slave.
I include the other to show that Thomas Jefferson had no legal standing to hold Sally Hemmings children as slaves, but he did anyway.
Evil hypocrit.
papertiger (e55ba0) — 9/13/2011 @ 10:10 am“… when the law says the man is your owner, with the right to beat you and with it being practically easy to murder you?”
Isn’t this a tenet of Islam?
john b (c56882) — 9/13/2011 @ 10:27 amIn a book due out Thursday, eminent scholars say it’s unlikely that Thomas Jefferson fathered Sally Hemings‘ children. . .
Why is it always “eminent” scholars and who exactly has the task of conferring eminence upon them? Just one time I would like to read something like “A panel of run-of-the-mill scholars has released a report. . .”
JVW (4d72aa) — 9/13/2011 @ 10:38 amQaddaffi tried to recgonize Israel but President false choices rejected it.
DohBiden (d54602) — 9/13/2011 @ 11:08 amHuh? What is this in reference to? What quip, and what “other”, did you include where?
Milhouse (ea66e3) — 9/13/2011 @ 11:16 amImagine enslaving your own child because he or she was half-African in origin.
Hard to imagine this used to be something people did without being lynched.
Dustin (b2fb78) — 9/13/2011 @ 11:17 amIt would improve general understanding to consider the plantation system as an ongoing multi-generational institution. House slaves and their extended families, as distinct from field hands, would live and work in close proximity to the big house, the master, his overseers, and their extended families. Young children, white and colored, would grow up together, play together, and eventually work together.
Favored and familiar house slaves, perhaps related to overseers and owners, would receive a partial education, be instructed in useful skills, learn a trade, be trusted with tasks essential to plantation operations. House slaves married each other and formed a distinct class of mix-bloods living intermediate between whites and field hands.
As repugnant as slavery was, it persisted on Southern plantations for several hundred years. It would be foolish to impose today’s limited social constructs on a highly complex economic and social institution, now extinct and largely misunderstood.
ropelight (e80c12) — 9/13/2011 @ 11:36 amChristianity too. Both testaments.
carlitos (49ef9f) — 9/13/2011 @ 11:37 amMan, In-Laws always cause such trouble.
Comment by Another Drew – Restore the Republic / Obama Sucks! — 9/13/2011 @ 8:29 am
— Thread-winner by a country mile 🙂
Icy Texan (8fba93) — 9/13/2011 @ 11:54 amYou’re right. It is quite something to imagine that world, though. Your own son or daughter, and you enslave them.
Anyway, America overcame that, so it can overcome the modern mistakes.
Dustin (b2fb78) — 9/13/2011 @ 12:05 pmSo, the point is that Jefferson is ‘partially redeemed’ because his brother impregnated his slave? And is that because the master/slave relationship made it completely impossible for Thomas & Sally to feel love for each other? Is there ANY solid evidence that he committed rape?
I see no evidence whatsoever that ‘redemption’ has been achieved. I also see no evidence that redemption was necessary.
Icy Texan (8fba93) — 9/13/2011 @ 12:06 pmNo, I suspect Sally had stockholm syndrome.
Yes. Slaves can’t consent.
Dustin (b2fb78) — 9/13/2011 @ 12:11 pmAnd the culture being backwards is no excuse.
Sleeping with your slaves is wrong. A married man doing it is a total sleaze, and either way, is taking advantage of a person who lacks freedom to say no.
Those who did this are accountable to God, not me. Lucky for them.
Dustin (b2fb78) — 9/13/2011 @ 12:12 pmBy the same logic every man was a rapist. Once married, women couldn’t say no. And most girls were in no position to refuse a marriage proposal their father had consented to. According to you, that means every marital act was rape, and it makes no difference whether the wife actually wanted to say no. You and Andrea Dworkin.
Milhouse (ea66e3) — 9/13/2011 @ 12:20 pmSacred honor compels me to admit I did not father a child with Sally Hemmings. I did not have sex with that woman.
daleyrocks (bf33e9) — 9/13/2011 @ 12:39 pmYou’re ignorant. A woman could get a divorce for cruelty.
Once again you struggle to find a semantic argument that contradicts basic reality.
Some archane legal concept doesn’t get to define every marriage. But indeed, marriages where the wife is a slave are slavery. There probably are examples where you’re doubly wrong for daring to mock the idea that women get consent for sex.
Dustin (b2fb78) — 9/13/2011 @ 12:47 pmThose are a couple of exceedingly easy conclusions to draw, Dustin. Unfortunately, easy doesn’t necessarily equal accurate.
Icy Texan (8fba93) — 9/13/2011 @ 12:50 pm#26 refers to #21
Icy Texan (8fba93) — 9/13/2011 @ 12:51 pmSure, but not for forced sex. A husband was legally entitled to rape his wife, and no court would give her the time of day over such a complaint.
Milhouse (ea66e3) — 9/13/2011 @ 12:56 pmMy stockholm comment was stupid. How could I know something like that?
But slavery was wrong. They knew it was wrong then. They knew it was wrong thousands of years earlier. Period.
And for God’s sake, it wasn’t like a traditional Christian marriage just because of some law somewhere.
We are not really a nation of laws. We are a nation of values.
Dustin (b2fb78) — 9/13/2011 @ 12:57 pmI’ve always thought that the evidence that Jefferson fathered those children was very weak. All they ever proved was that someone genetically close to Jefferson did, which is completely different.
Amphipolis (b120ce) — 9/13/2011 @ 1:11 pmKeep working on it, Dustin; you’ll get there eventually.
We are a nation of laws that have been derived from our values. Of course, the left/right struggles of the past five decades reflect a divergence of opinion as to what exactly constitutes an “American value”. Just look at the left’s response to the Polanski case for a questionable take on the question of what qualifies as “rape”.
I’m not defending slavery, and neither am I defending Jefferson; just saying that it is all too easy to reach a conclusion of rape, when the TRUTH is that we do not — and probably never will — know the exact nature of their relationship.
Icy Texan (8fba93) — 9/13/2011 @ 1:25 pmVia historian Clayton Cramer, I recently ran across the explanation for why Jefferson didn’t free his slaves: he couldn’t.
He was massively in debt, and had he tried to free them, they would have immediately been recaptured and sold to discharge the debts.
DJMoore (dfc510) — 9/13/2011 @ 6:57 pmFrankly, Thomas Jefferson’s historical reputation has always exceeded the historical reality.
Jefferson was a man of low ethics. Look how he treated people who thought they were his friends, the Adams’.
SPQR (26be8b) — 9/13/2011 @ 7:10 pmPretty much. However, laws are not the matter at hand here.
Doesn’t really matter to me.
Dustin (b2fb78) — 9/13/2011 @ 7:22 pmThis comes straight out of Jefferson’s own letter to a young abolitionist. He doesn’t explain what the legal constraint on his freeing his slaves was, but he explicitly says that he can’t legally free them, and it would be wrong to sell them, so his only choice is to treat them humanely.
Milhouse (ea66e3) — 9/13/2011 @ 8:43 pmWiki for Slave George (murder victim) and murderers Lilburn and Isham Lewis.
History of Jefferson’s attitude toward his family (although tangentially. For instance, Cousin Merriwether Lewis, screwed out of payment after exploring the Oregon coast for Jefferson, ended up committing suicide over the debt incurred by his trip. You think Lewis and Clark provided service to the Jefferson Administration? Tommy didn’t.)
Sally Hemmings children were 7/8ths white and legally free by Virginia law, so TJ’s excuse that creditors would collect them up to settle his wine and caviar bills doesn’t hold water.
papertiger (e55ba0) — 9/14/2011 @ 10:10 amI included the Lilborn and Isham Lewis quip … I include the other …
Huh? What is this in reference to? What quip, and what “other”, did you include where?
Comment by Milhouse — 9/13/2011 @ 11:16 am
Millhouse is a lazy effer.
papertiger (e55ba0) — 9/14/2011 @ 10:12 amWhat about Weezy Jefferson?
Hawkins (1fc204) — 9/14/2011 @ 11:27 amI don’t know why people want to say this is not true. I think the problem is they can’t figure it all out. Because for this to happen, there had to be a well thought out cover story. It’s ot just something that may have happened. For this to be true, there had to be an ongoing coverup.
What’s very interesting is the way Thomas Jefferson covered this up. It may have been studied by Bill Clinton or a mentor of Bill Clinton (and after all his middle name was Jefferson) I think though probably criminal defense attorneys figured out this sort of tactic long before 1969 or so, perhaps independently.
The affair started in Paris, in 1789, where Sally Hemings was legally free (he couldn’t hold her against her will, although of course she was ward of his and she was also about 16 when it started.)
She may have become pregnant and given birth to a son, who was named Tom. However, contrary to the story later leaked, the boy died as an infant.
Thomas Jefferson persuaded her to return with him to Virginia. The story is he promised her her children would be free.
At a certain point in time, about 1802, a false and rebuttable version of this story was leaked. (Andrew Breitbart might see something familiar in this.)
It was leaked to somebody whom I guess was starting to cause trouble for Thomas Jefferson although he had been an ally before. I think the problem was he wanted money Thomas Jefferson and his party didn’t have or didn’t want to give.
The story was that he had a slave mistress whom , the writer, Thomas Callender, called “Dusky Sally” and that there was a son called Tom alive at the plantation. Both assertions would not be believed by anyone who knew anything at all about Thomas Jefferson.
The first, because in 1784, in his book “Notes on Virginia” which was published well before this affair was supposed to have begun, Thomas Jefferson had written that he was not physically attracted to dark skinned people – he couldn’t explain it but that’s what it was. The catch here was Sally was not dusky!!
Callender had never seen her and Thomas Jefferson probably made sure that he never did, if there ever was a chance of that. he may have even supplied Thomas Callendar with a few false informants.
Sally Hemmings was three quarters white and his late wife’s half sister. He may or may not have promised his wife never to remarry. In any case a wife’s sister is the best person to take care of her children. So there was a logic to this thing.
The other claim, about a slave boy called Tom, anybody who had ever been to the planatation would know was not true, although later on there was somebody else assigned the position and there are decendants.
So with all that Thomas Jefferson was able to “debunk” story, because key details were wrong, unlikely, and impossible.
Later on, or maybe at the same time, for other people a story was circulated that would explain a family resemblance. The only thing is it doesn’t work now in the age of chromosomes and DNA.
http://www.pbs.org/wgbh/pages/frontline/shows/jefferson/cron/1868randall.html
In this version of the story, one or both of two nephews of Thomas Jefferson, Peter Carr and Samuel Carr, was the father of Sally Hemings’s children.
Sally Hemings and her children probably didn’t resent not getting any money because Thomas Jefferson died broke, but they may have felt this was all wrong. That is, he really should have married her, although of course he would not love her as he did his first wife, and she knew it.
But he could have married her and lied about her origins. Instead he lied about her status.
In the 1830 Census Sally Hemings, who had been freed, was listed as white.
The children of Sally Hemings were not educated the way a child of Thomas Jefferson should have been educated but they were allowed to escape (the only slaves really who escaped which may be a telling thing) or freed.
Only the descendants of the last two children of Sally Hemings are known. The earlier children “passed” and did this early enough so there’s no trace. A daughter, Harriet, who “escaped” in 1822, married somebody prominent in Phladelphia but no real details are known although maybe it could be discovered. This wouldn’t have been safe to tell anyone for 50 years maybe. To keep the secret eventually contact between the different branches of the family was broken off.
By the way there’s a significant drop in the number or the percentage of blacks in the United zstates between the 1840 and 1850 censuses. Anti-slavery agitation, which started in earnest about 1835, and more important, the defense of slavery as a positive good, started by John C. Calhoun of South Carolina around 1840, was heating up, and a lot of blacks must have started passing around then. This is not explained by migration to Canada and it wasn’t hiding from the Census either.
Probably around 1940 good recordkeeping it impossible for this to happen any more but this is an important historical fact for the United States.
Sammy Finkelman (d3daeb) — 9/15/2011 @ 12:23 pmSome further notes:
Trying to say that Sally Hemings’ children were the children of Thomas Jefferson’s brother is consistent with the Y chromosome evidence, but it was not a story that anybody circulated before, when nobody knew about Y chromosomes.
Thomas Woodson was not a son of Sally Hemings.
People just don’t understand where this story comes from. There probably was a son named “Tom” and that true fact was used by Thomas Jefferson in his false version of the story because the name Tom and so on might come to the ear of somebodyn who wanted to circulate it further in order to use it against him and his party politically, but this Tom, the original one, probably died in infancy and never made it to Virginia and you would have found no slave child named Tom who resembled Thomas Jefferson at Monticello in 1802, nor would anyone remember one…
The Mooney case is a very famous one in California from 1916, and one of the things defense attorneys did in that case was get false evidence into the prosecution’s case.
O.J. Simpson’s lawyers tried a similar thing in 1994, trying to get Marcia Clark to agree that the murders took place at 10:30 but she didn’t bite. (they wanted the prosecution to stipulate as to something – the something was untrue and would have undermined the case)
There were even (false) witnesses as to that timing.
Sammy Finkelman (d3daeb) — 9/15/2011 @ 12:41 pmSammy, tell me it’s not true that a lawyer would suborn perjury in a matter he has before the court.
Another Drew - Restore the Republic / Obama Sucks ! (a63c7d) — 9/15/2011 @ 12:54 pmComment by Another Drew – Restore the Republic / Obama Sucks ! — 9/15/2011 @ 12:54 pm
Sammy, tell me it’s not true that a lawyer would suborn perjury in a matter he has before the court.
It depends on the kind of lawyer someone is. Some of the most skilled criminal defense attorneys do exactly that. Others wouldn’t touch that. Now a attorney could be disbarred for that – but first it needs to be proven and perjury is hardly ever prosecuted.
Clarence Darrow was guilty of suborning perjurty and other crimnes. Although he managed to get himself acquitted (this is where he made the famous statement that “A man who represents
himself in court has a fool for a client.”)
He managed to get himself acquitted in 3 trials, but as aresult of this (or maybe as part of a deal?) he got out of practicing labor law, left california and went back to Chicago. For the rest of his life he never involved himself with labor unions.
There was a book published about his trials:
The People v. Clarence Darrow: The Bribery Trial of America’s Greatest Lawyer by Geoffrey Cowan:
http://www.amazon.com/People-v-Clarence-Darrow-Americas/dp/081296361X
A customer review finishes:
No-one really benefits from such wholesale lies as are found in the Darrow myth, and the legal profession in America might benefit greatly if this book was mandatory reading for every Law student in the country – alongside Darrow’s own blatantly self-serving, mendacious autobiography “The Story of My Life”.
Another one starts:
“A friend recommended this book as “the best book no one has ever read,” and was he ever right.”
By the way, the author makes excuses for him.
The threat of disbarment is one reason probably why riminal defense attorneys almost never want to put their clients up on the witness stand. He can say or suggest anything he wants to the jury, even if he is knows 100% it is untrue – what he says is not evidence or testimony – but let him knowingly put up a false witness and he is guilty of suborning perjury. And the most easily provjen case would be perjury by his own client -Prosecutors also have becomne convinced putting up a witness they do not 100% believe will tell the truth is a problem – and it’s not – because somnene can be cakked as a hostile witness and this needs to be done far nmore often. I don’t know who convinced them that they can’t or shouldn’t call any wutness they don’t believe will tell the truth.
There was a case where the many state attorney generals and the Obama Adminsitration were arguing that prosecutors should have absolute immunity, Pottawattamie County v. McGhee http://reason.com/archives/2009/09/28/the-infallible-prosecutor
Supreme Court oral arguments:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1065.pdf
Website about the case:
http://www.scotuswiki.com/index.php?title=Pottawattamie_County_et_al._v._McGhee_et_al.
The case was settled before the Supreme Court could issue a decision.
But that doesn’t mean that they don’t most of the time avoid any possibility of it.
If a lawyer is bad and confident of his own lying and connections then he can do it, and this should not be discounted, even if some mnore obvious things are avoided.
Sammy Finkelman (d3daeb) — 9/19/2011 @ 2:17 pmNote:
http://www.scotuswiki.com/index.php?title=Pottawattamie_County_et_al._v._McGhee_et_al.
….doesn’t work when you click on it, but it does work when you cut and paste it into a browser window.
Maybe this would work as a clickable link:
http://www.scotuswiki.com/index.php?title=Pottawattamie_County_v._McGhee
Sammy Finkelman (d3daeb) — 9/19/2011 @ 2:34 pmThe second link works, but it gets you to Scotus Blog, which while it has all the links to briefs and documenbts, is missing all the explanation on the site, although it does have other coverage.
The oral argument recap is only at the Scotus Wiki site, which may disappear except from the Internet Archive maybe if you know how to look for it:
<>
Sammy Finkelman (d3daeb) — 9/19/2011 @ 2:41 pmTrying to put it into quotes lost it all
The oral argument in Pottawattamie County v. McGhee was an exercise in drawing lines – between policemen and prosecutors, investigation and prosecution, and torts of constitutional and non-constitutional varieties. The main line at issue in the case circumscribes acts that carry immunity for prosecutors. The Court seemed inclined to draw it based on the incentives created for prosecutors and potential litigants.
Justice Stevens depicted the petitioners’ view of immunity as “a strange proposition” – and Deputy Solicitor General Neal Katyal, arguing for the United States and the petitioners, agreed it “seems a little odd.” The idea everyone found so strange was that the closer an officer is to a wrongful conviction, the more immune she is for it. Two hypotheticals Justices Ginsburg and Kennedy posed to Stephen Sanders – also arguing for the prosecutors – zeroed in on that strangeness: Could a policeman be held liable for fabricating evidence? Or could a prosecutor from another case? Sanders was forced to admit that both the policeman and the second prosecutor could be held liable, though the prosecutor of the case himself could not.
For almost twenty minutes, the Court struggled to understand how a prosecutor’s fabrication of evidence is different from a policeman’s. On Sanders’ interpretation, the fabrication alone cannot create a constitutional harm until a prosecutor uses the evidence at trial and the trial ends in conviction. Then the prosecutor alone seems responsible for the harm, Justice Sotomayor asserted. If a policeman can still be responsible for fabricating evidence independent of its use at trial, then aren’t these two different acts subject to different liability? Justice Ginsburg summed it up: “It’s strange to say a prosecutor who wasn’t involved in the trial would have liability, but as long as the prosecutor turns the investigatory material over to himself, there’s absolute immunity.”
To Katyal, Justice Breyer communicated similar frustrations with the conceptual landscape presented by Pottawattamie County. Why can’t the entire prosecutorial act, from investigation to trial, constitute one violation but be divided for the purpose of immunity? Katyal’s answer, which seemed to pacify Justice Breyer in part, was that the statute under which McGhee is suing – § 1983 – allows suits only for constitutional torts; and the only established constitutional right implicated is the right to a fair trial.
Former Solicitor General Paul Clement – arguing for the respondents – faced fast and tough questioning about the practical consequences of his new immunity rule. The Justices seemed openly reluctant to undermine the rule of absolute prosecutorial immunity for fear of “chilling” prosecutors from performing critical duties. Justice Breyer worried a new pre-trial liability would discourage prosecutors from questioning witnesses. He dismissed as less important Clement’s counter-claim that immunity for all acts that contribute to a trial would give malicious prosecutors an incentive to use ill-gotten evidence in court.
Building on that line of questioning, Justices Alito and Scalia, in particular, worried that frivolous charges against prosecutors might become easier to allege if McGhee wins. Justice Alito painted a picture of the criminal justice system in which many witnesses are unreliable – like, he asked in a hypothetical, when a CFO insists no wrong was done at a corporation and then turns to testify against the CEO – and therefore easy game for angry defendants alleging their prosecutor knowingly used false testimony. Scalia added that an acquittal would add more evidence that the testimony was unreliable. The defense Clement set up was that past rulings making suits against prosecutors easier to allege have not actually flooded courts with claims.
Clement further argued that fabricating evidence before trial is a violation of the constitutional right to a fair trial – merely an incomplete one. But Justice Breyer pressed Clement to give a clear line up until which prosecutors could be held liable. He reluctantly committed to one: a prosecutor would be liable for investigatory acts until he found uncontrived probable cause to proceed with a trial.
That was perhaps the brightest line drawn during the oral argument. Wherever the Court ultimately draws the line on prosecutorial immunity, it seems clear they will be looking forward to its practical consequences.
Sammy Finkelman (d3daeb) — 9/19/2011 @ 2:42 pm