Nov-04-2009Court 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] "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.
[2] The Council Bluffs prosecution team, while still maintaining that Harrington and McGhee are guilty, contends that even if the men were in fact framed, prosecutors, under established Supreme Court precedent, have total immunity from being sued. The Supreme Court has indeed said that prosecutors are immune from suit for anything they do at trial. In this case, Harrington and McGhee maintain that before anyone being charged, prosecutors gathered evidence alongside police, interviewed witnesses and knew the testimony they were assembling was false.
[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.
[4] Harrington, who had been serving a sentence of life without parole, was released when Iowa Gov. Tom Vilsack signed a reprieve after the Iowa Supreme Court vacated the conviction. Then he and McGhee were arrested for the murder of a retired police officer in neighboring Council Bluffs, Iowa, just across the state line.
[3] Former Bush administration Solicitor General Paul Clement will tell the Supreme Court that in 1977, Council Bluffs was an almost all-white community, and that politics and race played a part in the prosecutor's decisions. The county prosecutor, David Richter, had been appointed to his post and was facing his first election, observes Clement. "He has an unsolved murder, something that is hardly standard fare in Council Bluffs, Iowa," he says. "He had the perfect suspects, if he could tag the murder to a couple of young African-American teenagers from across the state line." Harrington couldn't believe what was happening to him. He says he was "living a nightmare." Convicted two days after his 19th birthday, he was sentenced to life in prison without parole. "When I walked into that front door and that gate closed behind me," Harrington says of his first day in prison, "it was so humiliating that all I could do was cry.
[3] WASHINGTON — The Supreme Court on Wednesday seemed worried that allowing a bad prosecutor to be sued by a wrongfully convicted person might chill other prosecutions — even if they're doing their jobs correctly and honestly. In the case before the court, two former Pottawattamie County, Iowa, prosecutors were sued by the men they had convicted of first-degree murder.
[5] Clement notes that the Supreme Court has given immunity to prosecutors only after an indictment takes place. Before that, Clement contends, prosecutors have the same limited immunity that police have -- namely, they can be sued if they violate clearly established constitutional rights. In this case, he says, by the time the indictment took place, "the prosecutors were already up to their necks in this conspiracy. to frame someone for the crime they didn't commit. That violates the Constitution any way you look at it." While the justice of this argument may be easy to grasp, Clement has an uphill climb before the Supreme Court.
[3] 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] 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] On one side of the case being argued are Iowa prosecutors who contend "there is no freestanding right not to be framed." They are backed by the Obama administration, 28 states and every major prosecutors organization in the country. On the other side are two black men -- Terry Harrington and Curtis McGhee -- men who served 25 years in prison before evidence long hidden in police files resulted in them being freed.
[3] McGhee, Harrington's co-defendant, agreed to a plea deal in exchange for time served. Harrington refused any deal, and prosecutors dropped all charges against him. Under Iowa law, for all practical purposes, there is no way for the men to recover compensation for their 25 years of hard time. They sued the prosecutors and the police under a federal civil rights law for violation of their constitutional rights.
[3] The Iowa Supreme Court declared shenanigans and freed the men. Only they can't be compensated under Iowa law for the 25 years they lost. They're trying to sue the prosecutors for, you know, FRAMING THEM but the authorities are relying on a rock-solid rule in the U.S. justice system: The prosecutors can't be held liable for their actions in court.
[6] "I want to be clear with Iowans in general and republicans in particular that when I go to the polls next November as a citizen, I will be voting to remove Chief Justice Ternus, Justice Streit, and Justice Baker," said Roberts, a five-term State Representative from Carroll. "Moreover, as I am campaigning during the coming months, I will be making sure Iowans know that they have the right to vote in the retention election next year." Roberts notes that the Iowa Supreme Court's decision in Varnum v. Brien - in which the court struck down the state's law restricting marriage to one man and one woman - is one of the primary reasons why he opposes retaining the justices who are up for retention next year.
[7] A retention election is democracy's imprint on a branch of government that is otherwise insulated from public opinion," said Roberts. "Next November, Iowans will have a chance to exercise their right to shape the Iowa Supreme Court.
[7] Roberts has consistently criticized the Iowa Supreme Court since the beginning of his exploratory campaign for governor in July, and he says he will continue to encourage those he meets in the coming months to vote in next year's retention election when it appears as part of the general election ballot.
[7] Racing Association of Central Iowa and Varnum are examples of extreme judicial activism, which is grossly deficient performance according to Roberts. "Retention elections give the people of Iowa a voice in who will be members of their state supreme court.
[7] Roberts says that Varnum and Racing Association of Central Iowa are unacceptable forms of judicial activism. "We need to send a message to the Iowa Supreme Court that they are accountable to the people of Iowa," said Roberts, who has made restoring the role of the people in state government a centerpiece of his campaign.
[7] The court in 2003 unanimously sided with gambling advocates when it ruled the state could not charge higher gambling taxes on racetracks than boats. '''We need to send a message to the Iowa Supreme Court that they are accountable to the people of Iowa,''' said Roberts.
[8] "The Iowa Supreme Court is unanimously opposed to the traditional definition of marriage while an overwhelmingly majority of Iowans want to vote on the issue. Clearly, something has to give, and I am siding with the people of Iowa on how marriage is defined in this state," said Roberts, an Assistant Minority Leader in the Iowa House of Representatives.
[7] The United States Supreme Court overturned the Iowa Supreme Court's decision and unanimously voted to uphold the law in 2003, but when the case returned to the Iowa Supreme Court in 2004, it rejected the United State Supreme Court's decision and struck down the law for a second time.
[7] Roberts notes that in the Iowa Supreme Court's 2002 decision of Racing Association of Central Iowa v. Fitzgerald, the court struck down a gambling tax law that had been passed by the legislature.
[7] Even after 25 years in prison, Harrington never gave up. In 2003, armed with the newly disclosed police records, he petitioned the Iowa Supreme Court, which overturned his conviction as well as McGhee's, and concluded that the star witness was a "liar and perjurer."
[3] Stephen Sanders, the lawyer for the prosecutors, will tell the Supreme Court on Wednesday that there is no way to separate evidence gathered before trial from the trial itself. Even if a prosecutor files charges against a person knowing that there is no evidence of his guilt, says Sanders, "that's an absolutely immunized activity." Whatever constitutional wrongs were suffered by Harrington and McGhee, he says, they were the result of their conviction at trial, not the investigation that preceded the trial. Without the trial, he contends, Harrington and McGhee "are simply unable to point to any deprivation of liberty that they suffered from the fabrication itself."
[3] Do prosecutors have total immunity from lawsuits for anything they do, including framing someone for murder? That is the question the justices of the Supreme Court face Wednesday.
[3] "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] 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] 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.
[5] The principal witness was 16-year-old Kevin Hughes, who had a criminal record, and after being arrested in a stolen car, first fingered two other men, one of whom turned out to have been in jail on the night of the crime. After his first stories didn't pan out, Hughes implicated Harrington and McGhee, but his eyewitness account was riddled with errors. He initially got the site of the shooting wrong and the weapon. He said the murder was committed with a handgun, then said a 20-gauge shotgun and finally a 12-gauge shotgun. He also failed a polygraph test. According to lawyers for Harrington and McGhee, the Council Bluffs police and prosecutors knew all this and more. They went ahead and indicted the two men, winning convictions before an all-white jury.
[3] Back in 1977, two black teenagers from Omaha were charged with the murder of a retired policeman in Council Bluffs, Iowa, and convicted by an all-white jury. The star witness was a guy who initially accused two OTHER men and, even after he accused the teens, kept getting his facts wrong and had to be coached by prosecutors.
[6] Gates, the brother-in-law of a Council Bluffs Fire Department captain, was interviewed and failed a polygraph. Prosecutors and police abandoned their interest in him in favor of Harrington, who was not even offered a polygraph. "So the bottom line," says Clement, "is essentially that police and prosecutors together at some point in this case stopped looking for the real killer, the real suspect and decided it would be far easier to get an eyewitness account that said to a moral certainty that the two African-American youths from across the state line have committed this crime
[3] I cried all night." In prison, Harrington assumed a tough alter ego he called "T.J." and did everything he could to survive. Harrington struck up a friendship with the prison barber, who petitioned for the police records in his case. According to defense lawyers, those records not only disclosed how police and prosecutors had coached Hughes until his story matched the facts, and how other witnesses were coerced into lying, but that the records also showed that police and prosecutors had withheld evidence that pointed to another suspect. They had identified a white man named Charles Gates, who had been seen with a shotgun near the scene of the crime.
[3] 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.
[2] 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.
[9] 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.)
[4] 
Two African-American men wrongly imprisoned for 25 years filed a lawsuit against prosecutors for fabricating evidence against them. [1] There are good reasons for prosecutorial immunity. Prosecutors at every level of government worry that allowing any lawsuit, ever, would provoke a flood of lawsuits, and that prosecutorial independence would be compromised, with district attorneys shading their decisions for fear of being sued.
[3] 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.
[4] Harrington, who had been serving a sentence of life without parole, was released when Iowa Gov. Tom Vilsack signed a reprieve after the Iowa Supreme Court vacated the conviction. Charlie Neibergall / AP Terry Harrington (center) leaves prison in April with his mother, Josephine James (left), and daughter, Nicole Brown.
[3] Varnum is not the only reason why Roberts opposes retaining the three members of the Iowa Supreme Court, however.
[7] "The problem with judicial activism is that it thwarts the will of the legislature and of the people of Iowa. Next November, it is our duty as voters to let these justices know what we think of their judicial activism." As a candidate for governor, Roberts is comfortable both with publicly indicating how he will vote in next year's retention election and with actively encouraging Iowans to exercise their right to vote in the election. Roberts points out that the very purpose of a retention election is to retain or remove justices based upon their performance.
[7] We already have a similar system set up to handle civil rights violations (where an individual acted 'under color of law'). Simply broaden that system and those provisions to permit lawsuits in cases like this one. In the mean time, Iowa needs to get off the stick and pass a private bill providing compensation for this man.
[6] If an allegation of deliberate misconduct (versus incompetence or error) appears likely to prevail, based upon the facts alleged and evidence presented, then the lawsuit can proceed. This would provide a qualified versus absolute immunity from action. It would keep frivolous cases out of court while preserving the rights of individuals from violations by officers of the court using their positions to perpetrate that violation.
[6] 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] Not so, says Clement, the lawyer for Harrington and McGhee. The prosecutorial immunity at trial doesn't wash back and launder a frame at the investigative stage, he says.
[3] To make matters worse the district attorney position is often an elected position leading to abuses of power to maintain that position. Like a doctor these people hold peoples lives in their hands and like doctors they should be held accountable for their misdeeds. While it will result in some lawsuit abuses just has happened with doctors it is better to err on the side of caution in this matter. Mistakes are one thing - this was purposefully trying to frame innocent people which is a CRIME. I don't see how criminal acts, in the most wild of imaginations, could possibly be covered.
[6] SOURCES1.
At Supreme Court: Can prosecutors be sued for framing defendants? | csmonitor.com2.
The right not to be framed - Boulder Daily Camera3.
Can Prosecutors Be Sued By People They Framed? : NPR4.
High Court To Hear Appeal From Iowa Prosecutors - wcco.com5.
The Associated Press: Court worries about stifling prosecutors6.
Crime Scene KC7.
IowaPolitics.com8.
Roberts: Reject Supreme Court justices « Des Moines Register Staff Blogs | The Des Moines Register9.
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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