Nov-05-2009Court worries about stifling prosecutors
(topic overview)
CONTENTS:SOURCESFIND OUT MORE ON THIS SUBJECTWhen the false testimony and other exculpatory evidence was discovered, the two innocent men, Curtis McGhee and Terry Harrington, were released after 25 years in prison. They filed a lawsuit against the prosecutors. The question before the high court is whether the prosecutors can be held accountable in a civil trial or instead are entitled to absolute immunity from such lawsuits. "If the allegations here are true, engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust," Solicitor General Kagan writes in her brief to the court. "But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments." Lawyers for Mr. McGhee and Mr. Harrington argue in their briefs that police officers who fabricate evidence do not enjoy such absolute protection from a civil lawsuit. They say prosecutors who actively participate in the pre-trial investigation of a case must be held to the same standard as police officers, detectives, and agents, who can be sued if they violate clearly-established constitutional rights. "When law enforcement officers fabricate evidence with an intent to use it to deprive innocent citizens of their liberty, they violate the Constitution," writes Paul Clement, a former U.S. Solicitor General who is arguing the case for McGhee and Harrington. "The framing of innocent African-American citizens for a crime they did not commit, lies at the core of what Congress sought to prevent in the Civil Rights statutes," Mr. Clement says in his brief.
[1] The Court heard arguments in Pottawattamie County v. McGhee and Harrington, brought by two men who were freed after serving 25 years in prison for murdering a retired Iowa policeman. Based on recently obtained police files, Curtis McGhee and Terry Harrington sued prosecutors for violating their civil rights by coercing and coaching witnesses to falsely accuse them of the crime, even when evidence pointed toward another suspect. Police who manipulate evidence have only qualified immunity, but prosecutors have long enjoyed absolute immunity, at least for their actions at trial. At issue in the Iowa case is the scope of immunity for prosecutors who are performing police-like duties before trial and then either participate or don't participate in the trial where they would acquire full immunity.
[2] The men were released from prison after 25 years, after the Iowa Supreme Court found that the prosecution had failed to disclose exculpatory evidence to the defense. In the 1963 case
Brady v. Maryland the court held that prosecutors violate a defendant's due-process rights when they suppress material evidence that could lead to an acquittal or a lesser sentence. Specifically, McGhee and Harrington allege that prosecutors framed them by concealing evidence that pointed to another suspect and inducing a teenage witness to fabricate testimony. That witness and others later recanted their testimony. McGhee and Harrington both brought civil rights actions against the county. A federal district judge rejected the prosecutors' claim that they held absolute immunity from liability.
[3] WASHINGTON - Supreme Court justices struggled Wednesday with whether prosecutors, who usually are shielded from civil rights lawsuits, can be held responsible for framing defendants with false testimony and fabricated evidence. Deputy U.S. Solicitor General Neal Katyal, backing local Iowa prosecutors in the case, urged the justices to rule that prosecutors' immunity for actions related to their trial work also covers any investigatory misconduct that led to charges in the first place. Katyal said the court should not focus on officials who abuse their authority but rather the overriding goals of the justice system. "(T)his court's decisions have said that absolute immunity doesn't exist to protect bad apples," he insisted. "It reflects a larger interest in protecting judicial information coming into the judicial process. If prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, they will flinch in the performance of their duties."
[4] "We're worried about the chilling effect on the prosecutors," said Chief Justice John Roberts Jr. at one point. The former Iowa inmates had an unusual advocate making their case Wednesday: former Bush administration Solicitor General Paul Clement, who represented the Bush Justice Department in 49 previous arguments before the Court. Now
with King & Spalding, Clement agreed to represent the two pro bono to make the point that even prosecutorial immunity has its limits, and that the Iowa prosecutors' misdeeds were beyond the pale. "The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable," Clement told the Court. "I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial."
[2] Clement, now at King & Spalding, took the case pro bono, according to Mauro. Clement said even prosecutorial immunity has its limits. "The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable," Clement told the Court. "I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial." Where to draw the line? Lawyers arguing for the county Deputy U.S. Solicitor General Neal Katyal and Stephen Sanders, an associate at Mayer Brown''''said any erosion of immunity would be seized on by every disgruntled''defendant and hinder prosecutors in the performance of their official duties. "If prosecutors have to worry at trial that every act they undertake will somehow open the door to liability, then they will flinch in the performance of their duties and not introduce that evidence," Katyal said.
[5] "But that makes no sense, because neither a police officer nor a different prosecutor who fabricated evidence would be liable," if the constitutional violation only happens at trial. Ginsburg can't understand how the prosecutor cannot be said to have caused the original constitutional violation: "If this fabrication had not occurred, there never would have been any trial." Deputy Solicitor General Neal Katyal is in this case on the side of the prosecutors. He says Harrington and McGhee are asking this court "to announce for first time ever that there is a free-standing due process right not to be framed." (Founding Fathers.
[6] "There is no Freestanding Constitutional 'Right Not To Be Framed.' " So states a brief filed by Iowa prosecutors hoping to persuade the Supreme Court to dismiss a lawsuit against them for allegedly fabricating evidence that led to the 25-year incarceration of two innocent men. It's a breathtaking proposition that the justices should roundly reject when they hear the case Wednesday. According to court documents, the prosecutors took a leading role in 1977 in investigating the murder of a recently retired white police officer at an Iowa automobile dealership where he was working security. The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African-American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight.
[7] WASHINGTON — The Supreme Court on Wednesday seemed worried that allowing people to sue prosecutors who fabricate evidence to win convictions might chill other prosecutions — even if those prosecutors are doing their jobs correctly and honestly. Justices also seemed frustrated at the thought that prosecutors could knowingly send an innocent person to prison — and then escape any repercussion by claiming that they were doing their job. The case in front of the high court involves two former Pottawattamie County, Iowa, prosecutors, Attorney Dave Richter and his assistant Joseph Hrvol. They are being sued by Curtis W. McGhee Jr., and Terry Harrington, who were convicted of first-degree murder and sentenced to life in prison in 1978 for the death of retired police officer John Schweer.
[8] Two Pottawattamie County, Iowa, prosecutors allegedly obtained false testimony from a man who became the key witness against Curtis McGhee and Terry Harrington in the 1977 shotgun murder of an auto dealership security guard in Council Bluffs. They were sentenced to life in prison. Two decades later, after a friend of Harrington's had sought the police record, it emerged that prosecutors Joseph Hrvol and David Richter had failed to turn over evidence about a leading suspect in the murder and allegedly coached the key witness in his tale against McGhee and Harrington.
[4] Harrington and McGhee's lawyers also said police records showed that authorities withheld evidence that pointed to another suspect -- a white man who was seen with a shotgun near the scene of the crime. Charles Gates, the brother-in-law of a Council Bluffs Fire Department captain, also failed a polygraph, but authorities abandoned their interest in him. Harrington and McGhee's convictions were overturned, and they sued the two former Pottawattamie County, Iowa, prosecutors, David Richter and his assistant Joseph Hrvol. They claimed that Richter and Hrvol violated their constitutional rights by failing to disclose that witnesses and police had identified another, more likely suspect.
[9] The question posed was whether prosecutors who work side by side with police at the investigative stage of a case are also immune, even though the police are not. Sanders, the prosecutors' lawyer, told the justices that it is impossible to separate the investigative phase of a case from the trial because without a conviction, there is no deprivation of liberty for the defendant, and he has no legal claim that his constitutional rights were violated. Justice Anthony Kennedy immediately pointed to a 1993 Supreme Court ruling that said prosecutors can be sued for their actions before charges are filed.
[10] Stephen Sanders, the lawyer for the prosecutors, said even if the men were framed, prosecutors have absolute immunity from being sued under established Supreme Court precedent. Federal courts, however, said the immunity does not extend to their work before the trial began and rejected their motions to dismiss the lawsuit. Ordinarily, prosecutors are immune from lawsuits based on their work at trial.
[9] "If a prosecutor's absolute immunity in judicial proceedings means anything, it means that a prosecutor may not be sued because a trial has ended in a conviction," lawyer Stephen Sanders said. A couple of justices noted that under that theory, if a prosecutor fabricates evidence and gives it to another prosecutor to use at trial, they can be sued. If a prosecutor fabricates evidence and then uses the evidence at a trial that they are working, they have immunity from lawsuits.
[8] Lawyers for the two prosecutors counter that there is no constitutional right "not to be framed." The critical question is whether the trial is fair, they say. The constitutional infraction occurs not when the false statements are first obtained, but when they are introduced at trial. Since prosecutors enjoy absolute immunity from lawsuits related to the actions they take at trial, any false testimony cannot form the basis of a lawsuit against a prosecutor, they say. Attorneys general from 27 states and the District of Columbia filed a friend of the court brief urging the high court to embrace this broader view of absolute prosecutor immunity. The National Association of Criminal Defense Lawyers, the Cato Institute, and the American Civil Liberties Union argue for a lower level of immunity that offers prosecutors protection from lawsuits except when they have violated a clearly-established constitutional right.
[1] The court should not accept that proposition, said lawyer Paul D. Clement, who represented McGhee. "I can't think of a single reason why the only reason a prosecutor would get absolute immunity is, if they not only participated in the pretrial misconduct, but completed the scheme by committing further misconduct at trial," he said. Several justices noted that if the court opens prosecutors up to lawsuits from those who are convicted for their actions before trial, it could make those prosecutors hesitate when it comes time to put bad guys on trial.
[8] Representing the Iowa prosecutors, lawyer Stephen Sanders says there are good reasons for prosecutorial immunity. Without it, he says, there would be a flood of lawsuits. "What you'll have is that everyone who believes that they were wrongly convicted will file lawsuits, and prosecutors will do nothing all day but defend themselves against meritless litigation," Sanders says. On the steps of the Supreme Court on Wednesday, though, Harrington said he is more worried about the victims of prosecutorial misconduct. "I know what happened to me," he said. "And there should be concern about it because it's not OK to frame someone for murder in the United States." When Harrington was arrested, he was 17, captain of his high school football team, and being recruited for a possible scholarship at Yale. Less than two years later, convicted by an all-white jury, he was sentenced to life without parole.
[10] You have to stay focused. This is what I was looking forward to. Being right here, right now, today, is what kept me all those 25 years I was in prison." Harrington sat with his daughter and girlfriend as the lawyer for the prosecutors pointed to a long line of Supreme Court decisions that say prosecutors are immune from civil lawsuits for their actions at trial.
[10] Supreme Court justices seemed to struggle on Wednesday with the question of when, if ever, prosecutors should be held personally liable for their officials acts, reports The National Law Journal's Tony Mauro. Curtis McGhee and Terry Harrington, who served 25 years in prison,''sued prosecutors for violating their civil rights by allegedly coercing and coaching witnesses to falsely accuse them of killing a retired Iowa policeman.
[5] For most Americans, that's a breathtaking proposition. For Terry Harrington and Curtis McGhee, it's more than that. The men, both African-American, served 25 years of a life term before the Iowa Supreme Court overturned their convictions for murder. The state's highest court said that the key witness against them was a known "liar and perjurer," and that prosecutors had withheld evidence that pointed to a different suspect in the crime.
[10] "The facts are that Terry Harrington and Curtis McGhee are black and once were young, and that was white and had been a police captain. Together, these facts made it easy for and their accomplices to frame Harrington and McGhee for murder." Mr. Herrmann writes: "We can imagine few rulings of this Court that would send a more negative message about American criminal justice than to permit white prosecutors to frame African-American suspects for the murder of a white police officer, admit the outrage, and then walk away with impunity, after their victims have wrongfully suffered twenty-five years in prison."
[1] In 1977, two young African-Americans'''Terry Harrington and Curtis McGhee'''were arrested for the murder of John Schweer, a retired police officer in Council Bluffs, Iowa. They served 25 years in prison until it was revealed that police detectives and the prosecutors in the case may have set them up. Among other things, the prosecutors, Dave Richter and his assistant Joseph Hrvol, failed to turn over evidence showing that their initial suspect, Charles Gates, had been seen with a shotgun by other witnesses at the crime scene and failed a polygraph test.
[6] According to legal briefs filed in the case, prosecutors in Pottawattamie County, Iowa, solicited false testimony implicating two innocent African-American teens in the murder of a recently retired police officer in 1977. At trial, the false testimony led to their convictions. They were sent to prison for life.
[1] Stephen Sanders, with Mayer Brown, represented investigators and prosecutors, and Pottawattamie County, Iowa. He argued that the false testimony does not cause injury by itself, and only its use in court can cause injury. Because the injury can only be inflicted during the trial, while the prosecutor is immune, there should be no liability for the pre-trial fabrication, he said.
[11] Harrington and McGhee claim that a prosecutor's immunity should not extend to helping the police long before the trial, by, say, collecting false statements and coerced testimony. The district court denied immunity to the prosecutors, and the 8 th Circuit agreed that they were not absolutely immune for the misconduct that happened before the trial. Stephen Sanders, an associate at Mayer Brown, represents the two prosecutors this morning. He garners'''by my count'''five questions that begin with the phrase "that makes no sense" or something to that effect. Unfortunately for Sanders, the most important iteration of this phrase comes from Justice Anthony Kennedy, whose vote generally tends to be decisive in the whole "Sucks To Be You" class of cases. It is Kennedy who interrupts him to ask whether the court was merely "wasting our time" or "just spinning our wheels" in a 1990 case that gave prosecutors immunity for misconduct if its fruits were not introduced at trial.
[6] Evidence showed the prosecutors had failed to share evidence that pointed to another man, Charles Gates, as a possible suspect in Schweer's slaying. They later on denied that Gates was even a suspect, even though witnesses placed him near the scene of the crime and his name appeared in several police reports. He also was administered and failed a polygraph test and the prosecutors themselves even consulted an astrologer about their suspicions of Gates. McGhee and Harrington filed lawsuits against the former prosecutors, saying as prosecutors Richter and Hrvol had them arrested without probable cause, coerced and coached witnesses, fabricated evidence against them and concealed evidence that could have cleared them. They claimed authorities were eager to charge someone and that they were targeted because they are black. Richter and Hrvol argued, however, that they were immune from lawsuits because they were acting within the scope of their job. Federal courts, however, said the immunity did not extend to their work before the trial began and rejected their motions to dismiss the lawsuits. Ordinarily, prosecutors are immune from lawsuits based on their work at trial. This case tests whether that immunity stretches to the prosecutorial work that happens before the trial begins.
[8] There appeared to be no consensus among the justices hearing the Iowa prosecutors' appeal of a lower court decision that said the claim of McGhee and Harrington could proceed. When Katyal worried that prosecutors would "flinch" from their duties, Justice Sonia Sotomayor suggested a prosecutor should indeed flinch "when he suspects evidence is perjured or fabricated." Sotomayor, a former prosecutor who seemed more sympathetic to the claims of McGhee and Harrington, elicited from Katyal that the Iowa prosecutors were never sanctioned for their actions. She said she believed prosecutors nationwide were rarely disciplined for improper conduct in the investigatory stage. Justice John Paul Stevens also expressed concerns about shielding prosecutors for bad acts that occur long before they began to prepare for trial. Justice Anthony Kennedy responded heatedly to arguments by the Iowa prosecutors' lawyer, Stephen Sanders, that they cannot be liable for any fabrication that ends up being used at trial.
[4] Sanders said other remedies could be pursued against prosecutors, including disciplinary actions under ethics rules. Deputy U.S. Solicitor General Neal Katyal, who also argued in support of the Iowa county, told the Court, "If prosecutors have to worry at trial that every act they undertake will somehow open the door to liability, then they will flinch in the performance of their duties and not introduce that evidence." Justice Sonia Sotomayor responded skeptically, suggesting that law enforcement officials should "not merely flinch but stop if they have reason to believe that evidence is fabricated."
[2] Paul Clement, a former U.S. solicitor general representing McGhee and Harrington, said prosecutors' procuring legitimate evidence is not at issue. He said, "I don't think we want them shaping the witness for trial. I think we want them trying to figure out who actually committed this crime." Chief Justice John Roberts speculated that if McGhee and Harrington were allowed to press their claim, prosecutors would be vulnerable to lawsuits simply because a defendant was acquitted. He suggested a defendant might say, "He fabricated (the evidence).
[4] Former Bush administration Solicitor General Paul Clement, who represented McGhee, told the justices that politics and race had played a role in the case. He said the prosecutors knew the testimony they were assembling was false, even before anyone was charged.
[9] McGhee's sentence was later voided, too. In 2005, the men sued Hrvol and Richter under federal civil rights law, alleging they violated their rights to due process of law by coercing the false testimony to frame them. The case, which could affect prosecutors' methods in cases nationwide, is being closely watched by defendants' rights and civil liberties groups, such as the National Association of Criminal Defense Lawyers, which raise concerns in a "friend of the court" brief about "overzealous and dishonest" prosecutors.
[4] Stephen Sanders, the lawyer for Pottawattamie County, said that exposing prosecutors to lawsuits and adopting a freestanding due process right for defendants in cases like the one before the Court "would work a radical change in the law of immunity because it would mean far more wrongful conviction claims against prosecutors would go forward under qualified immunity." Sanders, an associate at
Mayer Brown, was arguing his first case before the high court.
[2] Clement, along with the justices, struggled to define the point at which prosecutors doing police-like investigative work at early stages of a case are transformed into prosecutors whose actions should not be challenged. For their part, the lawyers arguing in favor of immunity said the Court needed to hold the line on lawsuits against prosecutors, to prevent litigation by every disgruntled defendant who can poke holes in the government's case.
[2] According to the Obama administration, the answer is no. Solicitor General Elena Kagan argues in a friend of the court brief that local, state, and federal prosecutors must enjoy absolute immunity from citizen lawsuits ''' even when they sent innocent men to prison for life by fabricating incriminating evidence and hiding exculpatory evidence. Those are the allegations in a case from Iowa set for oral argument on Wednesday morning.
[1] Harrington and McGhee sued state officials under 42 U.S.C.'' 1983, which provides for civil suit against " very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States. to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." The question today is whether the two prosecutors are entitled to absolute immunity from such suit. The Supreme Court has held that while cops have only limited immunity from lawsuits, prosecutors enjoy what's known as absolute immunity for their conduct under most circumstances. (Otherwise every conviction would end in a lawsuit.)
[6] U.S. Supreme Court justices appeared torn Wednesday over whether prosecutors deserve total immunity from lawsuits for their official acts, even when they fabricate evidence in pursuit of a murder indictment and conviction.
[2] The justices of the Supreme Court struggled Wednesday to figure out whether they should allow lawsuits against prosecutors for framing a suspect.
[10] The Supreme Court on Wednesday questioned whether allowing persons wrongfully convicted of crimes to sue prosecutors would have a chilling effect on prosecutions. During oral arguments in Pottawattamie County v. McGhee, several justices said they were concerned about how their ruling would affect honest prosecutors if suspects could sue because they didn't like a jury verdict.
[9] Immunity. In the 1993 case
Buckley v. Fitzsimmons, the Supreme Court held that a prosecutor is immune from liability for acts that he or she took after launching a prosecution that is, after he or she established probable cause. The defendants in this case are
arguing that, based on the Buckley ruling, there was no due process violation before the trial, and therefore that they're immune from liability and the case should be dismissed.
[3] In Imbler v. Pachtman, the Supreme Court ruled that prosecutors have absolute immunity for actions undertaken while preparing for, or during, a trial. It ruled that prosecutors are not immune while not doing work directly related to the prosecution.
[11] WASHINGTON (CN) - The U.S. Supreme Court heard arguments Wednesday on whether prosecutors who use false testimony should be liable for a wrongful conviction. "This case sits near the intersection of a pair of well-settled issues," wrote federal defenders from Georgia in an analysis of the case distributed by the Supreme Court's staff. They said prosecutors who unwittingly use false testimony during a trial are absolutely immune, but noted such testimony should never knowingly be used.
[11] Kennedy asked whether immunity would apply to a prosecutor who procures false testimony, but who then hands the case off to another prosecutor to begin the case. Sanders replied that the initial prosecutor would be exposed because, having not played a prosecutorial role in the case, he would have no immunity when the evidence was used in trial.
[11] Justice Sonia Sotomayor asked why a prosecutor who fabricates false testimony and takes the case to trial would not be held responsible for the initial fabrication if in the analogy with two prosecutors, the first prosecutor would be liable.
[11] Twenty-seven states and the Obama Justice Department are in the case, trying to ensure that prosecutors are shielded from claims for damages tracing to any trial testimony, even that arising from misconduct before an arrest was made.
[4] Kennedy looks annoyed. "So the law is, the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition." Adds Justice Ruth Bader Ginsburg: "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." Sanders explains that fabricated evidence itself doesn't constitute a constitutional violation because that can happen only when it's introduced at trial. Justice Sonia Sotomayor'''sporting earrings the size of small saucepans today'''cuts him off.
[6] Like Sanders, Katyal asserted there is no constitutional right not to be framed. If prosecutors are immune, asked Justice Antonin Scalia, how do you get the policeman who has fabricated evidence? Sanders replied that the policeman is liable because he is passing the fabricated evidence to an "innocent prosecutor."
[10] Kennedy and Justice Antonin Scalia also get Sanders to concede that if a police officer passed along fabricated evidence or another prosecutor''' one not involved in the trial'''did so, that conduct would not be immune from suit.
[6] "But that makes no sense, Sotomayor said in another argument, "because if you go down that road, then what you're saying is that neither a police officer nor a different prosecutor who fabricated evidence could be liable either because the only person who causes the deprivation is the prosecutor who uses the false evidence at trial. "Do you really want to send a message to police officers that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?" Sotomayor continued.
[11] Under it, a police officer who fabricated evidence could be liable, as could a prosecutor who did so and then handed it off to a colleague to introduce in court.
[3] COUNCIL BLUFFS, Iowa (AP) The U.S. Supreme Court will consider whether Iowa prosecutors can be sued by two men whose convictions in the killing of a retired Council Bluffs police officer were set aside.
[12] Police knew Hughes' story was fishy. Both defendants were sentenced to life in prison. Some 25 years later, after the misconduct was uncovered, the Iowa Supreme Court overturned both convictions, and the men were freed.
[6] The Iowa Supreme Court threw out Harrington's conviction in 2003, based on Hrvol's and Richter's failure to disclose the evidence about the other suspect.
[4] Let me recite the boilerplate disclaimer that the justices' questions at argument do not necessarily predict future votes. That said, if it were lawful to wager on Supreme Court cases the odds might favor a classic 4-4 liberal-conservative split, with Justice Kennedy handing the tie to the ex-prisoners. The opinion will permit this lawsuit to proceed but be written narrowly to ensure that lower courts deny immunity only in the most egregious cases of prosecutorial misconduct.
[3] The facts of Pottawattamie County v. McGhee, the case the Supreme Court hears today, are spectacularly awful. They may also prove spectacularly immaterial. In the Roberts Court era, "It Sucks To Be You" is a booming industry: Instances of shocking constitutional wrongs that cannot be corrected by constitutional courts.
[6] 
"I mean, we were just spinning our wheels in that case?" In Buckley, the court denied absolute immunity to a prosecutor who played a role in fabricating evidence against a suspect during an investigation, and who made false statements about a suspect during a news conference. Sanders argued that the ruling still holds, but added that this case addresses the issue that Buckley left open: whether fabrication of evidence by a prosecutor in and of itself can be challenged.
[11] A later investigation found that the lawyers never disclosed at trial that another, more likely, suspect had been identified by witnesses and police. The convictions were thrown out, but the lawyers unsuccessfully argued in the civil rights suits against them that they had absolute immunity because they were doing their jobs as prosecutors. Several justices said they were worried about the chilling effect such a ruling would have on prosecutors, with suspects being able to sue prosecutors simply because they didn't like the verdict.
[13] Paul Clement, with King & Spalding, argued on behalf of two men, Curtis McGhee and Terry Harrington, who were convicted and then cleared of murder. He said the prosecutors don't have absolute immunity, referencing past cases where immunity for pretrial investigatory conduct was rejected.
[11] Oral arguments are scheduled for Wednesday in an appeal from former Pottawattamie County prosecutors. They are being sued by Curtis McGhee Jr. and Terry Harrington. They were convicted of first-degree murder and sentenced to life in prison in 1978 for the death of security guard John Schweer.
[12] The men were released from prison after 25 years. They sued former County Attorney Dave Richter and his assistant Joseph Hrvol, claiming they ignored evidence pointing to another suspect. The prosecutors argued they were immune from lawsuits because they were acting within the scope of their job.
[14] The men were released from prison after 25 years. They sued former County Attorney Dave Richter and his assistant Joseph Hrvol, claiming they ignored evidence pointing to another suspect. This material may not be published, broadcast, rewritten, or redistributed.)
[12] Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit. These contradictions and prosecutors' apparent hand in the alleged fabrications came to light years after the men were sentenced to life without parole when a prison barber made a public records request of police files in the case and came across exculpatory information that had been kept from defense lawyers. The witness ultimately recanted his story.
[7] The point of the immunity is not to protect a bad apple, said Neal K. Katyal, a deputy solicitor general. "It reflects a larger interest in protecting judicial information coming into the judicial process," he said. "And if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence." The court will release its decision next year.
[8] Said Kennedy, "the more aggravated" the wrong, "the greater the immunity." That prompted Sanders to say that prosecutors shouldn't have to worry at trial about being sued or else they would "flinch" and "not introduce evidence." Sotomayor seemed incredulous: "You want to send that message?" she asked. At this point in the argument, it looked like there might be at least five votes against the prosecutors in this case.
[10] Because, said Sanders, it all leads to the wrongful conviction at trial, and under established law, a prosecutor is free to willfully bring criminal charges based on "good evidence, bad evidence, or no evidence at all."
[10] A prosecutor who fabricated the evidence herself and then introduced it at trial would be immune. Justice Kennedy put it this way: "So the law is: The more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition."
[3] Kennedy followed up, asking, "What if the prosecutor knows the evidence is fabricated?" Sanders said that even then, the prosecutor would be immune from any lawsuit.
[10] Two African-American men wrongly imprisoned for 25 years filed a lawsuit against prosecutors for fabricating evidence against them.
[1] Harrington and McGhee, who are black, were convicted by an all-white jury in the mostly white community of Council Bluffs. They served 25 years in prison before new evidence came to light, allegedly showing that prosecutors had coached Hughes until his story matched the facts, and coerced other witnesses into lying.
[9] Harrington and McGhee sued, contending that police and prosecutors had worked to frame two teenagers from across the state line, while ignoring good evidence that implicated a white suspect who was the brother-in-law of the local fire chief.
[10] Clement added that it would be "really perverse" to have a system where police acting alone could be sued for fabricating evidence, but the misdeeds would be immunized from suit if a prosecutor joins in the wrongdoing.
[2] Clement replied that if you don't have probable cause to arrest an individual, then police and prosecutors should be engaging in the "truth-seeking function." Once you have probable cause to believe this is the person "whodunit," then the prosecutor has a job to do, to put on a case, and at that point, he has immunity for his actions. By the end of the argument, all that was clear was that this was a case of line-drawing to make the justices squirm.
[10] Justice Samuel Alito, who also is a former prosecutor, worried about frivolous lawsuits against government lawyers. He said the line between investigative and prosecutorial stages is not always so clear, and noted that prosecutors often deal with unsavory witnesses who have credibility issues but who can legitimately make a case.
[4] Justice Alito, a former U.S. attorney, worried about opening the door to claims that would inhibit prosecutors from going after criminals. Both he and Chief Justice Roberts said there could be a "chilling effect" on zealous law enforcement if defendants could sue their prosecutors. Justice Breyer shared the concerns of the other liberals, but he tried to balance them against law enforcement interests. "What is your most pro-prosecutorial rule that you could live with that will in fact minimize the risk?" he asked Paul Clement, representing the ex-prisoners.
[3] The worm seemed to turn a bit, though, when Paul Clement, former solicitor general in the Bush administration and now the lawyer for the wronged defendants, tried to define where to draw the line on prosecutorial immunity. Leading the charge against Clement's position were Chief Justice John Roberts and Justice Samuel Alito, both recent Bush appointees.
[10] Clement, then the solicitor general, unsuccessfully defended the Bush administration plan. Today, however, it was Katyal in the traditional morning coat: he's the deputy solicitor general for the Obama administration. He's a former Breyer clerk, and this time he was arguing that innocent people framed by prosecutors have no right to recover from them. Paul Clement, now in private practice with King Spalding, was seeking money damages for ex-prisoners, including one who still has a second-degree murder conviction on his record.
[3] The former Iowa inmates were''represented''by former Solicitor General Paul Clement, who made 49 appearances before the court as the government's chief advocate during the Bush administration.
[5] Siding with the prosecutors in court Wednesday was the U.S. government, represented by Deputy Solicitor General Neal Katyal.
[10] The issue before the court is whether prosecutors performing police-like duties before trial, and then either participate or do not participate at trial, enjoy protection from liability.
[5] Police who manipulate evidence have qualified immunity, but prosecutors have absolute immunity.
[5] What is missing in that scenario, Clement replied, is fabricated evidence, and any action by the prosecutor prior to indictment. Alito theorized that the defense might view the evidence as fabricated, and, he observed, the prosecutor, before taking the case to the grand jury, may well want to "look the witness in the eye" to see whether he is "credible."
[10] There was a deprivation of liberty during the investigatory stage." Clement, who argued on behalf of the convicted men, faced concerns from justices that prosecutors would be restricted in their work if his interpretation were adopted.
[11] Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook.
[2] "This will discourage the prosecutors from becoming involved in the witness questioning process, at least not before the police are well on the way. That is a very negative incentive, I would think," Justice Stephen Breyer said.
[8] "I'm worried about what Justice Alito brought up," chimed in Justice Stephen Breyer. "All things being equal, I think it's probably a good thing to get prosecutors involved in the questioning process" early. "That has kind of a check on police."
[10] The prosecutor and cops relied on the testimony of Kevin Hughes, a 16-year-old accused of stealing a car. The police promised to help him with his various criminal charges, and possibly offered him a $5,000 reward, for his assistance with the Schweer investigation.
[6] The case revolves around two young men, Terry Harrington and Curtis McGhee, who were arrested in 1977 for the first-degree murder of a retired police officer in Council Bluffs, Iowa. [9] After a car dealership security guard was shot and killed in 1977, attorneys Joseph Hrvol and David Richter relied heavily on the testimony of a 16-year-old criminal in prosecuting McGhee and Harrington.
[11] County Attorney David Richter and an assistant county attorney, Joseph Hrvol, were targeted in the lawsuit, which alleges prosecutorial wrongdoing through the investigation that carried into the trial.
[2] You need to isolate a constitutional violation. That violation begins when the fabricated evidence is introduced at trial."
[6] Iowa prosecutors, backed by the federal government and prosecutors across the country, contend that there is "no freestanding constitutional right not to be framed."
[10] Thanks for taking the time. They were
arguing that the county, through its prosecutors and officials, had violated their 14th Amendment due process rights.
[3] Later investigations found that prosecutors had not disclosed evidence favorable to the defendant, and Harrington's conviction was overturned.
[11] Suppose, for example, a prosecutor is investigating an insider-trading case, and the chief financial officer tells one story, then under pressure, tells another, and in exchange for a lighter sentence, implicates the CEO of the company.
[10] Justice Sonia Sotomayor, who spent five years as a Manhattan prosecutor, also seemed unsympathetic.
[10] The established law, said Sanders, is that the prosecutor is immune regardless.
[10] Chief Justice Roberts and Justice Alito seemed sure to dissent. Justice Scalia is known as a law and order guy, but Clement a former Scalia clerk made a strong play for his old boss by arguing that prosecutorial immunity is a judge-made rule with no basis in either common law or statutory text. Scalia often says he bases his opinions on the original meaning of the legal text, so that argument might appeal. Scalia also says he sometimes accepts precedents he might not have approved in the first place, under the doctrine of stare decisis. Justice Thomas said nothing, as is his custom. He's also a strong law and order judge, but he too says he relies on original meaning to decide cases, and considers precedent even less important than Scalia does.
[3] New Jersey-based group Black Cops Against Police Brutality also filed a friend of the court brief in the case. "This case is not just about drawing a good lawyerly line between precedents," writes Chicago lawyer Mark Herrmann in a brief for the group.
[1] SOURCES1.
At Supreme Court: Can prosecutors be sued for framing defendants? | csmonitor.com2.
Law.com - High Court Justices Weigh Tradition of Prosecutorial Immunity Against Potential Civil Rights Violations3.
Katyal v. Clement, Part II: On the Prosecutorial Immunity Argument - Law Blog - WSJ4.
Justices weigh lawsuits against prosecutors - USATODAY.com5.
Supreme Court Considers Prosecutorial Immunity Main Justice6.
Does the Constitution protect prosecutors who fabricate evidence? - By Dahlia Lithwick - Slate Magazine7.
The right not to be framed - Boulder Daily Camera8.
The Associated Press: Court worries about stifling prosecutors9.
Justices Weigh Opening Prosecutors Up To Lawsuits : NPR10.
wbur.org » News » High Court Weighs Prosecutors' Immunity11.
Courthouse News Service12.
High Court To Hear Appeal From Iowa Prosecutors - wcco.com13.
The Associated Press: Court worries about stifling prosecutors14.
US Supreme Court to hear appeal from Iowa prosecutors facing lawsuit over murder case - WQADGENERATE A MULTI-SOURCE SUMMARY ON ANY SUBJECTEnter your search query below. WAIT 10-20 sec for the new window to open.
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