Short Circuit 246 | The Unholy Trinity
We’re joined by two friends from the MacArthur Justice Center, Emily Washington and Eric Foley, to tell us all about a blood-boiling case of prosecutorial misconduct, concocted evidence, and lying to put a man on death row. They are fighting an epic battle in the Fifth Circuit against many things in their case, but this week we focus on one especially: absolute immunity, a special benefit prosecutors often—but not always—enjoy. Did the prosecutor enjoy it in their lawsuit? Listen to find out. There’s not just one, but two concurrences by Judge Jim Ho of the Fifth Circuit (who news reports say festively sends out Christmas cards, along with his family, using the slogan “Ho, Ho, Ho”). And then IJ’s own Anya Bidwell tells us about “Wanteds.” They’re not warrants, but they’re nevertheless often used. Were they a thing at common law, and are they “reasonable” under the Fourth Amendment? There’s another concurrence that makes the case.
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Wearry v. Foster (3 judge panel)
Wearry v. Foster (denial of en banc)