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As a Texas prosecutor for 10 years, Dallas attorney Philip Ray said he sometimes saw his colleagues making ethically questionable decisions on cases.

"People get so warped up in believing their own understanding of the facts that they justified behavior, and prosecutions, that shouldn't be brought," said Ray. "They get so fanatic about thinking they are on the right team that they lose sight of fairness. They lose sight of right and wrong."

He thinks victims should be able to make prosecutors answer for misdeeds.

"Frankly, I think people should be able to sue when things are way out of line," he said.

But most of the time, absolute prosecutorial immunity stops that from happening.

"When the immunity is absolute immunity, you insulate those who would not do the right thing. It is infuriating to the people who want to do the right thing," said Ray, who is now a criminal defense solo practitioner.

The issue of prosecutorial immunity came up this week in a high-profile case of an ex-judge who is suing prosecutors over her wrongful conviction. She claimed a rare victory that allowed her to move forward against one prosecutor.

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Read more: This Ex-Judge Was Wrongfully Convicted, but She Can't Touch 3 of 4 Texas Prosecutors Behind Her Indictment

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Suzanne Wooten, solo practitioner in McKinney, Texas

Former Judge Suzanne Wooten was wrongfully convicted in 2011 in a case that alleged she took bribes in the form of campaign contributions during her 2008 campaign for the bench. She was acquitted in 2017 in a ruling that said even if true, the allegations against her were not a crime under Texas law. Next, she sued the prosecutors and their supervisors, as well as Collin County, alleging malicious prosecution and other claims. On Monday, the U.S. Court of Appeals for the Fifth Circuit tossed three defendants from the case after determining that prosecutorial immunity protected them from the lawsuit.

The Fifth Circuit allowed Wooten's lawsuit to proceed against one prosecutor, Christopher Milner, because Wooten's allegations, if they were true, showed that the prosecutor was acting more like a law enforcement investigator than a government lawyer.

"I think this case just demonstrates how difficult it is to bring a civil case against the authorities and how powerful they are. It underscores the fact that you need to have prosecutors who have a solid moral compass, and that understand their role as a prosecutor is to ensure justice, and the fair administration of the rule of law," said Philip Hilder, a principal in Hilder & Associates in Houston.

Philip Hilder

Prosecutorial immunity applies to prosecutors who are launching a prosecution or preparing a case for a trial. It does not apply to a prosecutor's administrative or investigative duties.

There are good reasons why prosecutors need absolute immunity, said Hilder. It protects them from second-guessing their decisions about filing charges against someone.

"They can do the right thing, and they don't have to worry about being sued," he explained.

If anyone could sue a prosecutor, the government would have to defend a great number of lawsuits, which would be extremely costly, he added.

Hilder, who worked as a federal prosecutor for almost seven years, said that if prosecutors are involved in egregious wrongdoing, he thinks they should have to face lawsuits. There is already a mechanism that allows people who were wrongly prosecuted to hold prosecutors accountable, he said.

"Those are few and far between," said Hilder. "If they violate certain ethical responsibilities, then they can be held accountable as well, by losing their license or in some cases actually being sued as well. Those are high bars. But they are there nonetheless to reign in prosecutors that are overstepping their authority."

Although current law does provide methods for victims to file lawsuits, it's not sufficient to address prosecutorial misconduct, said Houston lawyer Michael Wynne, who worked as a federal prosecutor for 12 years.

It can take years for someone who was wrongly prosecuted or investigated to hold a prosecutor accountable for wrongdoing, explained Wynne, a partner in Gregor | Wynne | Arney.

"By that time, the person affected—his or her life—and the businesses affected may be damaged beyond repair. I think we need to have interim vehicles. So, for instance, in this case, how many years of a wrongly prosecuted person's life has been completely taken away from them? The problem with the mechanisms we have in place is it takes too freaking long," Wynne said.

Although Wooten made it past the prosecutorial immunity bar in this round of the litigation for one defendant, Milner, he will still be able to claim other forms of immunity.

The type of immunity that applies to law enforcement investigators is called qualified immunity, and it is not as strong as prosecutorial immunity, explained Michelle Bradford, partner in Barnes & Thornburg in Washington, D.C.

Bradford, who was a federal prosecutor and also a civil assistant U.S. attorney who defended law enforcement in civil rights lawsuits, explained that a plaintiff can overcome qualified immunity if he or she shows that the defendant violated a clearly established legal or constitutional right. The issue of qualified immunity typically comes up in police excessive-use-of-force lawsuits, Bradford noted.

Without digging into Wooten's lawsuit, Bradford said she couldn't tell specifically if Milner has a good argument for qualified immunity. But generally speaking, she thinks he does not.

"Overall, if a prosecutor without any basis is conducting investigations against an individual and has no basis to believe a crime has been committed, then I think qualified immunity should not protect that individual's actions," she said.