Immunity is a bedrock principle for many participants in the criminal justice system. Wrongfully withheld evidence that leads to years on death row may shock the conscience, but in Connick v. Thompson, 563 U.S. 51 (2011), the Supreme Court held there is no civil liability generally for those responsible.

In his concurrence, Justice Scalia wrote, “Brady mistakes are inevitable. So are all species of error routinely confronted by prosecutors:  authorizing a bad warrant; losing a Batson claim; crossing the line in closing argument; or eliciting hearsay that violates the Confrontation Clause. Nevertheless, we do not have “de facto respondeat superior liability,” Canton, 489 U.S., at 392, 109 S.Ct. 1197, for each such violation under the rubric of failure-to-train simply because the municipality does not have a professional educational program . . .”  

So, it is not surprising that a federal appeals court concludes that “mere gross negligence” on the part of expert witnesses peddling junk science was not enough to overcome the presumption of immunity they enjoy under law. 5TH U.S. CIRCUIT COURT OF APPEALS.

But, how does the system hold people accountable? We have seen enough junk science that has lead to wrongful convictions to, at a minimum, prompt a thoughtful discussion by criminal justice leaders about how to hold people accountable.