At Supreme Court: Can prosecutors be sued for framing defendants?

[Winehole23]

At Supreme Court: Can prosecutors be sued for framing defendants? (http://www.csmonitor.com/2009/1103/p02s18-usju.html)

Two African-American men wrongly imprisoned for 25 years filed a lawsuit against prosecutors for fabricating evidence against them. The Supreme Court hears the case Wednesday.

By Warren Richey (http://www.csmonitor.com/cgi-bin/encryptmail.pl?ID=D7E1F2F2E5EEA0D2E9E3E8E5F9&url=/2009/1103/p02s18-usju.html) | Staff writer of The Christian Science Monitor from the November 3, 2009 edition

Washington - The US Supreme Court on Wednesday is set to consider an unusual question: Do Americans who have been framed by unscrupulous prosecutors for crimes they did not commit have a right to sue the prosecutors when the fraud is finally exposed?

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. 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.

When 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, [the Iowa officials] 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."

Absolute vs. qualified immunity

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 US 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.

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.

However, 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.
Confidence in justice system

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. "The facts are that Terry Harrington and Curtis McGhee are black and once were young, and that [the murder victim] was white and had been a police captain. Together, these facts made it easy for [the prosecutors] 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."



The case is Pottawattamie County, Iowa, v. McGhee and Harrington.

[Winehole23]

http://www.scotuswiki.com/index.php?title=Pottawattamie_County_v._McGhee

[ElNono]

Lawyers for the two prosecutors counter that there is no constitutional right "not to be framed."

http://cdn0.knowyourmeme.com/i/1582/original/picard-facepalm.jpg

[Winehole23]

In their brief on the merits, the prosecutors characterize the substantive due process claim raised by McGhee and Harrington as a “right not to be framed” – a right, they emphasize, that the Court has never recognized. In their view, any violation of a constitutional right requires a deprivation of liberty, not merely an intent to deprive someone of liberty. Therefore, a prosecutor’s fabrication of testimony cannot violate the Constitution until the perjury is presented at trial and is instrumental in securing a conviction.



The prosecutors next argue that they have absolute immunity for any conduct directly connected to a trial. Liability under § 1983, they contend, is determined using the “functional test” outlined by the Court in 1993 in Buckley v. Fitzsimmons, pursuant to which a prosecutor is immune for acts that are “intimately associated with the judicial phase of the criminal process.” Because investigations and evidence preparation yield the materials presented during trial, they are “intimately associated” with the judicial phase, and McGhee and Harrington lack a cause of action under § 1983.



The prosecutors also contend that the same policy rationales underlying the Imbler rule for trial conduct apply fully at the pre-trial stage. Even honest prosecutors are less likely to participate fully in investigations if they fear liability for investigatory actions and decisions. Furthermore, the creation of new grounds for prosecutor liability based on pre-trial acts would open a “floodgate” of meritless claims and effectively annul absolute immunity, as prosecutors could face wrongful conviction suits as long as a plaintiff is “clever enough to include [in his allegation] some actions taken by the prosecutor prior to the initiation of prosecution.”

[Winehole23]

Represented at the merits stage by former Solicitor General Paul Clement, respondents McGhee and Harrington reiterate – as they did in their brief in opposition – that the fabrication of perjured testimony against them violated their substantive due process rights to a fair trial. On their interpretation, prosecutorial misconduct that is “so ill-motivated as to shock the conscience” violates substantive due process whenever it occurs. In this case, the prosecutors’ intent to use the perjured testimony at trial, regardless whether they ever presented it, demonstrates that they were in fact “ill-motivated.”



McGhee and Harrington dispute the prosecutors’ contention that Imbler immunity extends to pre-trial investigation and preparation. Allowing immunity for trial acts to “wash back” to absolve prior wrongdoing would, they contend, encourage malicious prosecutors to use falsified evidence in court to shield themselves from suit for its procurement. They criticize the inconsistencies that would result from the prosecutors’ construction of the “functional test,” pursuant to which police officers – but not prosecutors – could be held liable for falsifying evidence during an investigation. Immunity should attach to types of conduct, they posit, rather than to particular officeholders.



Like the prosecutors, McGhee and Harrington argue that Buckley is significant, but for a different reason: although the Court in Buckley held that prosecutors have “absolute immunity” for conduct that “occurs in the course of [the prosecutor’s] role as an advocate for the State,” it also made clear that prosecutors have only “qualified immunity” for certain investigative acts. Contrary to what the prosecutors contend, however, procuring testimony is not conduct that occurs in the course of the prosecutor’s role as advocate.



Countering the petitioners’ “floodgate” argument, McGhee and Harrington argue that their case is “egregious, exceptional, and remarkably well-documented.” This is not a case in which prosecutors merely chose to believe a debatable story or failed to reveal exculpatory evidence; rather, they actively fabricated evidence. If the Court adopts a “strict approach” to prosecutorial misconduct claims that focuses on the substance of the claims rather than their “conclusions or labels,” trial courts will be able to easily weed out meritless claims at an early stage.

[DarkReign]

This shouldnt be a very tough decision.

But then again, this is government ruling on government limits. One hand certainly washed the other, even in the SC.

I predict the court sides with the State and continues to let citizens be framed by DAs across the country with impunity.

[DarrinS]

Attorneys can get sued for legal malpractice, can't they? Is this an issue of an expired statute of limitations?

[Winehole23]

Prosecutors enjoy immunity from lawsuits related to the performance of their official duties. Why that should extend to fabricating evidence against defendants is a bit beyond me, but that's the case before us.

At a minimum, there should be professional sanctions -- reprimand, suspension, disbarment -- for behavior like this, but I'm not holding my breath.

[Winehole23]

I predict the court sides with the State and continues to let citizens be framed by DAs across the country with impunity.Worse yet, the lack of meaningful consequences for framing up defendants will encourage corrupt or over zealous prosecutors to start/continue doing so.

[DarrinS]

Prosecutors enjoy immunity from lawsuits related to the performance of their official duties. Why that should extend to fabricating evidence against defendants is a bit beyond me, but that's the case before us.

At a minimum, there should be professional sanctions -- reprimand, suspension, disbarment -- for behavior like this, but I'm not holding my breath.



So, prosecutors are immune, while defense attorneys are not?

Interesting. The prosecutor is a government employee and the defense attorney is not (unless they are the public option, er defender).

[FromWayDowntown]

So, prosecutors are immune, while defense attorneys are not?

Interesting. The prosecutor is a government employee and the defense attorney is not (unless they are the public option, er defender).

Malpractice claims cannot be asserted by someone whose interests aren't represented by the lawyer. In the criminal prosecutorial context, it's self-evident that the prosecutor does not represent the interests of the defendant -- they are adverse to each other. If the defense attorney screws up, he faces a malpractice claim by the defendant (who can also claim ineffective assistance of counsel), but the defendant generally has no recourse against a prosecutor.

As for the argument here, I wonder if it could bear some generalized analogy to a tort like malicious prosecution -- though malicious prosecution is usually a claim asserted against those who secure the prosecution (by pressing charges) and not against the prosecutor herself.

I understand the rationale for prosecutorial immunity as a general proposition, but where the prosecutor's conduct rises to a level that includes provable fabrication of evidence and other sorts of flagrant disregard for the rights of defendants, that immunity deserves some kind of limited waiver. I could see that a party seeking to establish such a claim might have to meet some preliminary evidentiary burden (sort of the way that med mal plaintiffs in Texas are required to meet a preliminary burden to provide an expert report concerning the alleged negligence giving rise to their claims) or foisting a clear and convincing evidence of actual malice sort of proof requirement upon those who assert such claims. But I think there's a manifest difference between insulating prosecutors no matter their misconduct and making it possible (even if difficult) for a party to bring suit for egregious bad acts.

[DarkReign]

While I understand limited immunity, isnt what the DA did, you know, illegal?

With punishment being prison?

I mean, this DA framed innocent men knowingly. It speaks volumes about the validity of law that this hasnt been discussed.

[BacktoBasics]

This is a prime example of the failure of our Country. Everything must either fall on white or black with no room for a middle gray. Society really needs to figure out how to work within the framework of common sense over technicalities. In this case wrong is wrong even though they appear to be able to weasel out on a specific loophole.

[Winehole23]

While I understand limited immunity, isnt what the DA did, you know, illegal?I would think so. Maybe FWD can shed some light on this.

[jack sommerset]

:nope

[doobs]

Worse yet, the lack of meaningful consequences for framing up defendants will encourage corrupt or over zealous prosecutors to start/continue doing so.

Whoa, there.

There are meaningful consequences for this kind of behavior. Prosecutors routinely get fired for fairly minor infractions, because of the shame it brings on the office. That might be an internal thing, but it still has some value as a deterrent.

And they do get disbarred for misconduct. Remember Nifong in the Duke lacrosse case? That's a meaningful consequence from outside the prosecutor's office.

There is also the professional humiliation of having a conviction overturned on appeal. That might sound minor to you, but as much as career-oriented prosecutors hate losing cases . . . it's much worse to have a court find that a defendant's right to a fair trial was prejudiced by the prosecutor's misconduct.

Now I'm not saying whether prosecutors are immune from civil liability under section 1983 when engaging in this kind of purposeful misconduct before trial. I have no idea what the Court will decide. My hunch is the Court will decide that what the prosecutors did in fabricating the evidence before trial constituted investigatory, non-advocative conduct. But did that pre-trial conduct violate the defendant's rights and thereby provide a basis for liability under section 1983? I don't know.

Likewise, I think the Court will decide that the introduction of the fabricated evidence at trial is the type of advocative conduct that is clearly covered by absolute prosecutorial immunity.

But who knows, really? This Court might trash precedent and reevaluate prosecutorial immunity altogether.

[Winehole23]

I specified corrupt/overzealous officers, doobs. The few prosecutors I've had the pleasure to meet are serious, principled, professional people who play fair and try to win the right way. I have little doubt this description applies to the overwhelming majority.

[doobs]

I specified corrupt/overzealous officers, doobs. The few prosecutors I've had the pleasure to meet are serious, principled, professional people who play fair and try to win the right way. I have little doubt this description applies to the overwhelming majority.

But even the corrupt/overzealous prosecutors have to worry about consequences. In fact, consequences aren't generally designed to control the behavior of the serious, principled, professional people who play fair and try to win the right way. These upstanding people don't really need rules or consequences to tell them to act right.

So, yeah, there are meaningful consequences, and those consequences apply to the corrupt and overzealous. You might think the combined deterrent effect of these consequences is inadequate for the truly corrupt and overzealous. I'm inclined to agree.

[Winehole23]

In this case, what consequences do the 1976 prosecutors face, if they cannot be sued?

[FromWayDowntown]

I would think so. Maybe FWD can shed some light on this.

Oh, I'd think it would be absolutely illegal -- and certainly, if these prosecutors make it out with their law licenses intact, something is amiss. It may be that neither of those things has been discussed because they are relatively self-evident in a case like this one.

But those consequences don't remedy the injury visited on these men -- at least not in a manner that truly benefits them. Criminal prosecution benefits the State and, if successful, only tangentially benefits the victim. Disbarment protects the sanctity of the legal profession and eliminates unscrupulous actors from the privilege of practicing law; but it doesn't do anything for the victims of the misconduct.

We're talking here about a tort recovery for the victims of the prosecutors' bad acts. They want a monetary remedy for injuries (most assuredly, the pain and suffering and emotional distress that a needless 25-year stint in the hole -- served during the prime years of one's life -- can create) and I tend to agree with the notion that, in what appear to be truly egregious circumstances such as these, the criminal and administrative remedies against the prosecutors are insufficient to make the victims whole.

[boutons_deux]

corrupt prosecutors are exactly why the death penalty should NEVER be abolished. :)

eg, TX NEVER executes an innocent person.

The 100s killed under dubya were all guilty, dubya told us so, and dubya knows. :)

[DarrinS]

I understand the rationale for prosecutorial immunity as a general proposition, but where the prosecutor's conduct rises to a level that includes provable fabrication of evidence and other sorts of flagrant disregard for the rights of defendants, that immunity deserves some kind of limited waiver.



Isn't the fabrication of evidence a criminal offense?

[FromWayDowntown]

Isn't the fabrication of evidence a criminal offense?

Probably. But this isn't about the criminal aspect of the prosecutors' conduct; it's about the possibility that they'll face civil liability for their misconduct.

[Wild Cobra]

Attorneys can get sued for legal malpractice, can't they? Is this an issue of an expired statute of limitations?
I doubt it's expired. It would be a recently exposed framing, wouldn't it?

I say hell yes. Put those asses in jail.

[MiamiHeat]

sued? that's it?

HOW ABOUT CRIMINAL CHARGES!!!!!!!!!!!!

[Winehole23]

sued? that's it?

HOW ABOUT CRIMINAL CHARGES!!!!!!!!!!!!I kind of concur with FWD. The focus should be on the remedy for the injured parties. Criminal charges are not a meaningful remedy for them. If they have no lawsuit, they have nothing but their ruined lives as recompense.

[AussieFanKurt]

the prosecutors deserve jail. no doubt

[RandomGuy]

Attorneys can get sued for legal malpractice, can't they? Is this an issue of an expired statute of limitations?

No.

This issue here is the long-standing legal precedent that prosecutors cannot be sued for their actions during a trial.

Should any crack appear in this, then every convict in every jail would then be able to sue the prosecutor for any imagined or real thing they could. Imagine someone sentenced to 30+ years with literally nothing else to do...

[doobs]

No.

This issue here is the long-standing legal precedent that prosecutors cannot be sued for their actions during a trial.

Should any crack appear in this, then every convict in every jail would then be able to sue the prosecutor for any imagined or real thing they could. Imagine someone sentenced to 30+ years with literally nothing else to do...

This is my main concern.

[Winehole23]

FWD addressed it: set the the evidentiary bar high. Judges will know what do to with baseless claims. They'll be turned out of court peremptorily.

[doobs]

FWD addressed it: set the the evidentiary bar high. Judges will know what do to with baseless claims. They'll be turned out of court peremptorily.

The same can be said of federal habeas corpus, yet judges routinely send show cause orders to the state for even the most frivolous claims.

Judges will instinctively want to develop the record before dismissal, especially when a prisoner is attempting to litigate pro se.

[Winehole23]

So then, the inconvenience for the courts outweighs any possible injury to the rule of law and the appellant?

[ElNono]

The court can always make a ruling that clearly states that it only applies to this specific case and does not set precedence. And I think that's the way they'll probably go with this.

[Winehole23]

The fact that we have a clear case of innocence here might tend to this result.

[elbamba]

My guess is that these guys will be disbarred similar to the Nifong - Duke players incident. In Kansas, we had a similar situation which was politically motivated. The prosecutor did not lose his license but he was rebuked publically and ultimately had to resign his post. He did get fined anything too seriously but he was declaing bankruptcy within a year out of office and no one would really associate with him. He had been the County prosecutor for over 25 years in the County.

I understand the need for immunity but there always has to be limitation when you deal with complete and total fabrication. Lying or even unreasonable exaggeration should be punished.

[FromWayDowntown]

The same can be said of federal habeas corpus, yet judges routinely send show cause orders to the state for even the most frivolous claims.

Judges will instinctively want to develop the record before dismissal, especially when a prisoner is attempting to litigate pro se.

I'm not even talking, necessarily, about a true evidentiary bar being the standard of proof in such cases; I'm talking about establishing some sort of exceedingly high bar as the standard of pleading. I'm talking about requiring something like forcing the claimant to append affidavits attesting to facts that demonstrate not only his or her innocence of the charges convicted upon, but setting forth proof of the overt misconduct of the prosecutor.

I don't mean to suggest that will alleviate all concerns, but I don't think the solution to a problem like this one is to shroud even heinous prosecutorial misconduct with immunity.

[MiamiHeat]

No, they should be brought up on criminal charges and go to prison.

Any prosecutor who intentionally frames a defendant needs to be put in prison. ASAP.

How could ANYONE argue this?

[FromWayDowntown]

No, they should be brought up on criminal charges and go to prison.

Any prosecutor who intentionally frames a defendant needs to be put in prison. ASAP.

How could ANYONE argue this?

I don't think anyone is arguing that they shouldn't go to jail.

That's a different question than whether they should have to face a civil suit for damages based on their misconduct.

It's not an either/or proposition. A person can be convicted of a crime and sentenced to prison and then found civilly liable to the person who was the victim of the crime.

[DarkReign]

MH, youre missing the point.

The prosecutor deserving to go to jail is assumed.

Whats at stake is, what are these men due for being framed and serving 25 years in prison?

[Winehole23]

Settled (http://www.scotusblog.com/wp/false-testimony-case-dismissed/) for $12 million.

[Winehole23]

A case testing the immunity of prosecutors to damage lawsuits for obtaining and using false testimony ended in the Supreme Court Monday, with the two sides agreeing to dismiss it, without specifying reasons. The case was Pottawattamie County, et al., v. McGhee, et al. (http://www.scotuswiki.com/index.php?title=Pottawattamie_County_v._McGhee) (08-1065). The Justices had heard argument (http://www.scotusblog.com/wp/what-would-prosecutors-do/) in the case on Nov. 4, and were weighing a decision when the two sides moved for dismissal under the Court’s Rule 46. The press release from the respondent’s counsel describing the settlement is here (http://www.scotusblog.com/wp/wp-content/uploads/2010/01/pottawattamiesettlement.pdf).

[doobs]

Don't worry, this will come up again.

[FromWayDowntown]

Settled (http://www.scotusblog.com/wp/false-testimony-case-dismissed/) for $12 million.

Someone (the prosecutors and, almost assuredly, their insurers) was extremely concerned with how that issue was going to be resolved; rightfully so, I think.

At $12 million, we're not talking about a settlement to get rid of the nuisance of a suit; we're talking about a real concern for the ultimate liability that was going to be imposed as a consequence of the Court's likely resolution of that issue.

[doobs]

Someone (the prosecutors and, almost assuredly, their insurers) was extremely concerned with how that issue was going to be resolved; rightfully so, I think.

At $12 million, we're not talking about a settlement to get rid of the nuisance of a suit; we're talking about a real concern for the ultimate liability that was going to be imposed as a consequence of the Court's likely resolution of that issue.

That was my first reaction (and I still think it's probably correct). But there's another possible explanation: the DA realized it's better to compensate these plaintiffs (even though it doesn't have to) if the community is outraged by what was done to them. Perhaps this case had become a political liability.

This is now a cert-friendly issue, though. No doubt about it.

[EVAY]

Oh, I'd think it would be absolutely illegal -- and certainly, if these prosecutors make it out with their law licenses intact, something is amiss. It may be that neither of those things has been discussed because they are relatively self-evident in a case like this one.

But those consequences don't remedy the injury visited on these men -- at least not in a manner that truly benefits them. Criminal prosecution benefits the State and, if successful, only tangentially benefits the victim. Disbarment protects the sanctity of the legal profession and eliminates unscrupulous actors from the privilege of practicing law; but it doesn't do anything for the victims of the misconduct.

We're talking here about a tort recovery for the victims of the prosecutors' bad acts. They want a monetary remedy for injuries (most assuredly, the pain and suffering and emotional distress that a needless 25-year stint in the hole -- served during the prime years of one's life -- can create) and I tend to agree with the notion that, in what appear to be truly egregious circumstances such as these, the criminal and administrative remedies against the prosecutors are insufficient to make the victims whole.

Thank you very much. I'm serious. This was concise and clear and informative. Are you a law prof?

[RandomGuy]

Prosecutors enjoy immunity from lawsuits related to the performance of their official duties. Why that should extend to fabricating evidence against defendants is a bit beyond me, but that's the case before us.

At a minimum, there should be professional sanctions -- reprimand, suspension, disbarment -- for behavior like this, but I'm not holding my breath.

The problem is that once you allow it.. you have the millions of convicts sitting aroudn with literally nothing do do for decades initiating copy-cat suits.

Not an easy one.

[Winehole23]

If we do away with all constitutional protections "for convicts", there will be no possibility for abuse. Problem solved.

[Winehole23]

I'm sorry, RG, it just seems perverse to suggest that we should countenance prosecutorial frame ups because to punish them would open the door to abuse of the legal process.

[doobs]

Here's a good summary of the relevant law. (http://www.section1983blog.com/2009/09/brief-summary-of-prosecutorial-immunity.html)

[RandomGuy]

FWD addressed it: set the the evidentiary bar high. Judges will know what do to with baseless claims. They'll be turned out of court peremptorily.

Still, the sheer volume of cases that would be brought forth would concern me, especially given what I know of the budget cuts many courts have been faced with in recent years.