The Supreme Court will hear argument today in another prosecutorial immunity case, Pottawattomie County v. McGhee. The question is whether prosecutors who manufacture or fabricate trial evidence are immune from a suit arising under 42 U.S.C. Section 1983. I will be surprised if the Court decides that prosecutors are not immune. The growth of the immunity doctrine has tended to encompass more with each new decision. Expect another defeat for plaintiffs. What pleases the prince, after all, has the force of law.
But I am not writing about the law and the development of legal doctrine. Today, I would like to write about one woman, who, as I write this, is standing on line outside the Supreme Court in Washington hoping to gain admission to oral argument in the Pottawattamie case. Her name is Anne Danaher.
Ms. Danaher first wrote to me several years ago to discuss this case. But her for, there might not be a case at all. You see, Ms. Danaher was a prison barber who listened to inmates as she trimmed their hair. What she heard shocked her. She heard tales of police corruption, and she heard tales of bad prosecutors, making up evidence against innocent men. She heard and she acted, finding lawyers for the men and making a stink.
I got a nice note from Ms. Danaher yesterday. She was on her way to Washington and wanted to know whether I had any tips on how to get a seat. (I told her to arrive at the courthouse at 4:30 a.m., and, in no case, no later than 5:00 a.m.) She might not be a plaintiff in this case, but in a very real sense, the case is hers. But for her, there might not be a case at all.
So today when lawyers argue and justices parse doctrine, one woman will be sitting silently among the spectators knowing that justice is not mere game. The law is not a mere match of wits. Real men suffered as a result of official misconduct. An ordinary person saw the suffering and was outraged. She did what we want a good Samaritan to do: she acted. She sought justice. I wonder how she will feel when the argument is done. I wonder whether she will see justice in action?
So much of the debate about judicial philosophy is a pious fraud. The various immunities we grant public officials are one of the surest and stablest signs of judicial activism. These judge made doctrines befoul a constitution dedicated to rights of ordinary Americans. Ms. Danaher is likely to get a rude awakening to law and power in the Pottawattamie case; at least I think she is. I hope I am wrong.
Ann Danaher deserves recognition today. She believed in justice and in the law. She is a heroine.