http://www.lewrockwell.com/blog/lew...ves/042076.html
November 4, 2009
Prosecutors: A Protected Criminal Class
Posted by William Grigg on November 4, 2009 08:39 AM
There is no legal or civil recourse for innocent people framed for murder by corrupt, ambitious prosecutors. This is the position taken by respondents — including the Obama administration, 28 state governments, and “every major prosecutors organization in the country” — in a lawsuit scheduled to be heard by the Supreme Court, reports NPR.
Plaintiffs Terry Harrington and Curtis McGhee served 25 years in prison for the murder of a retired police officer in Council Bluffs, Iowa, before critical, long-buried police records were pried loose through Harrington’s persistent campaign for exoneration.
The suppressed records documented a conspiracy by police and prosecutors to suborn perjury against Harrington and McGhee while suppressing evidence that pointed at another suspect — Charles Gates.
Omaha residents Harrington and Gates were two young black men from across the state line; Gates was a white hometown resident whose brother-in-law was a captain in the Council Bluffs Fire Department. Witnesses had seen Gates in the vicinity of the murder with a shotgun. He failed a polygraph test when questioned by the police. Yet the police let him go and focused their attention on Harrington.
The chief witness against Harrington and McGhee was a juvenile criminal named Kevin Hughes, who had originally identified two other men as the murderers. He also equivocated about the murder weapon, first identifying it as a handgun, then a 20-gauge shotgun, and finally as a 12-gauge shotgun. Hughes also failed a polygraph test. Yet his “testimony” was sufficient to indict Harrington and McGhee, and he was the star witness in the trial that resulted in a life sentence for the two men.
After the police records were uncovered in 2003, Harrington successfully petitioned the Iowa State Supreme Court to overturn his conviction. Subsequently, all of the witnesses against him recanted their perjured testimony. Harrington and McGhee (who agreed to a plea deal in exchange for time served) have field a federal civil rights lawsuit against the prosecutors and police who framed them.
In a fashion familiar to students of the criminal sociopaths who become prosecutors, the team responsible for wrongfully sending Harrington and McGhee to prison maintain that they are guilty. They then offer a contradictory and terrifying defense: Even if they did frame those innocent men, “prosecutors, under established Supreme Court precedent, have total immunity from being sued,” summarizes NPR.
It should surprise nobody that the Supreme Court has confected a doctrine of plenary immunity for prosecutors, who cannot be sued for anything they do at trial — such as lying, concealing evidence, suborning perjury from the witness stand, and the other familiar tactics found in the arsenal of every government-employed lawyer.
Stephen Sanders, the attorney for the respondents in the lawsuit, insists that there is “no freestanding constitutional right not to be framed.” Even when prosecutors file charges they know are false and malicious, “that’s an absolutely immunized activity,” he claims.
Harrington and McGhee maintain that the courtroom immunity claimed by prosecutors does not extend to the investigative phase of this case, which is where the conspiracy to frame the plaintiffs was enacted. Former Solicitor General Paul Clement, who represents the wrongfully imprisoned men, notes that the relevant precedents all apply after an indictment has been filed.
If Harrington and McGhee prevail in this case, it will be an ironic and bitter victory, since it will simply ratify something rational people should consider obvious — namely, that prosecutors shouldn’t engage in criminal conspiracies for the purpose of imprisoning innocent people.
But consider this: Just days ago a federal appeals court ruled that Canadian citizen Maher Arar, who was unjustly detained by the federal government at JFK airport and then sent to Syria to be tortured for nearly a year, has no legal or civil recourse against the officials responsible for his suffering.
Consider as well that in a dissenting opinion written just a few months ago Supreme Court “Justice” Antonin Scalia made the remarkable claim that there is no constitutional prohibition against executing a wrongfully convicted individual: “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.”
The people operating the government’s apparatus of prosecution, imprisonment, and official murder are a specially protected criminal class far more threatening than their private sector competition.
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A Protected Criminal Class
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A Protected Criminal Class
by pyo1 » 06 Nov 2009, Fri 2:24 pm
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by pyo1 » 06 Nov 2009, Fri 2:25 pm
High court weighs immunity afforded to prosecutors
Defense says pretrial misconduct was within scope of duties
By Robert Barnes
Washington Post Staff Writer
Thursday, November 5, 2009
The case before the Supreme Court on Wednesday sounded like a television movie, a tale of wrongful imprisonment and the slow, inexorable wheels of justice.
Prosecutors under pressure to close the case of a cop killer settle on two young African Americans. They fabricate evidence, coerce perjury and bury the investigation of a white suspect.
A sympathetic prison barber unearths the investigative records that eventually lead courts to free the convicted men after years behind bars. And the men seek retribution for the prosecutors who framed them.
But here's the twist: The prosecutors say that they can't be sued for anything they do in their official capacities, even framing suspects.
It is not an argument outside the legal mainstream. The federal government, a majority of states and thousands of prosecuting attorneys are supporting the proposition that prosecutors must receive absolute immunity for their actions at trial to do their jobs properly. And that extends, they say, to any investigative work they do before the suspect is charged.
On Wednesday, justices were both supportive of the concept and appalled at its application.
"So the law is: the more deeply you've involved in the wrong, the more likely you are to be immune?" Justice Anthony M. Kennedy asked the attorney for the two former prosecutors. "That's a strange proposition." Justice John Paul Stevens called it "perverse."
But Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., a former U.S. attorney, said prosecutors must have protection from lawsuits or they would be open to being hauled into civil court by any criminal they put away.
As Stephen Sanders, the attorney for former Pottawattamie County, Iowa, prosecutors Joseph Hrvol and David Richter, put it: "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."
Curtis W. McGhee Jr. and Terry Harrington were convicted in 1978 in the killing of a recently retired Council Bluffs police officer who was working as a security guard. Richter and Hrvol were actively involved in the investigation and leaned on a 16-year-old to finger McGhee and Harrington. The teenager was the star witness even though he first identified others as committing the act, was wrong about where the shooting occurred and misidentified the murder weapon.
The men were convicted and received life sentences. But they were released 25 years later when evidence showed that the prosecutors had failed to tell the defense team that they had first identified another man as a suspect in the death of guard John Schweer. That man, Charles Gates, had been seen near the site of the killing with a weapon like the one used in the murder and failed a polygraph test about the case.
McGhee and Harrington filed civil rights lawsuits against Richter and Hrvol, saying they had threatened and coached the witnesses against them and concealed the evidence about Gates, a white man who was the brother-in-law of a city fire official. The witnesses later recanted their testimony.
Sanders said in a brief to the court that Richter and Hrvol would "vigorously" defend themselves against the charges should the case go to trial, but that it should never get that far. The court has said prosecutors have absolute immunity for their actions at trial, and Sanders and the government said the protection extends to pretrial actions as well.
The deprivation of liberty claimed by McGhee and Harrington, the former prosecutors contend, was a result of their conviction at trial, not of any pretrial activities.
There is no "free-standing due process right not to be framed," Deputy Solicitor General Neal K. Katyal agreed. Having to worry about a potential lawsuit when deciding whether to introduce certain evidence, Katyal said, might cause prosecutors to "flinch" from their duties.
Alito was supportive, saying witnesses in criminal cases were rarely innocent bystanders but often those who had changed their stories or cooperated with prosecutors to get a better deal. Those would be reasons for the convicted to bring lawsuits if prosecutors were not shielded, he said.
Alito and Roberts sparred with former solicitor general Paul D. Clement, who represented McGhee and Harrington. Clement said it made no sense that police officers could be liable for misconduct for pretrial actions but prosecutors playing the same investigative role couldn't be.
He mocked the idea advanced by the defense that a district attorney would have limited liability if he violated a suspect's constitutional rights before indictment but could not be sued if he used the manufactured evidence at trial.
He noted that McGhee and Harrington were suing under "one of the great civil rights statutes," and he tried to bring the debate back from the theoretical to the case at hand.
"Is it really plausible to think that the Congress that passed this statute didn't want to provide a remedy in the circumstances before the court today?" he asked.
The case is Pottawattamie County v. McGhee.
http://www.washingtonpost.com/wp-dy...0404753_pf.html
Defense says pretrial misconduct was within scope of duties
By Robert Barnes
Washington Post Staff Writer
Thursday, November 5, 2009
The case before the Supreme Court on Wednesday sounded like a television movie, a tale of wrongful imprisonment and the slow, inexorable wheels of justice.
Prosecutors under pressure to close the case of a cop killer settle on two young African Americans. They fabricate evidence, coerce perjury and bury the investigation of a white suspect.
A sympathetic prison barber unearths the investigative records that eventually lead courts to free the convicted men after years behind bars. And the men seek retribution for the prosecutors who framed them.
But here's the twist: The prosecutors say that they can't be sued for anything they do in their official capacities, even framing suspects.
It is not an argument outside the legal mainstream. The federal government, a majority of states and thousands of prosecuting attorneys are supporting the proposition that prosecutors must receive absolute immunity for their actions at trial to do their jobs properly. And that extends, they say, to any investigative work they do before the suspect is charged.
On Wednesday, justices were both supportive of the concept and appalled at its application.
"So the law is: the more deeply you've involved in the wrong, the more likely you are to be immune?" Justice Anthony M. Kennedy asked the attorney for the two former prosecutors. "That's a strange proposition." Justice John Paul Stevens called it "perverse."
But Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., a former U.S. attorney, said prosecutors must have protection from lawsuits or they would be open to being hauled into civil court by any criminal they put away.
As Stephen Sanders, the attorney for former Pottawattamie County, Iowa, prosecutors Joseph Hrvol and David Richter, put it: "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."
Curtis W. McGhee Jr. and Terry Harrington were convicted in 1978 in the killing of a recently retired Council Bluffs police officer who was working as a security guard. Richter and Hrvol were actively involved in the investigation and leaned on a 16-year-old to finger McGhee and Harrington. The teenager was the star witness even though he first identified others as committing the act, was wrong about where the shooting occurred and misidentified the murder weapon.
The men were convicted and received life sentences. But they were released 25 years later when evidence showed that the prosecutors had failed to tell the defense team that they had first identified another man as a suspect in the death of guard John Schweer. That man, Charles Gates, had been seen near the site of the killing with a weapon like the one used in the murder and failed a polygraph test about the case.
McGhee and Harrington filed civil rights lawsuits against Richter and Hrvol, saying they had threatened and coached the witnesses against them and concealed the evidence about Gates, a white man who was the brother-in-law of a city fire official. The witnesses later recanted their testimony.
Sanders said in a brief to the court that Richter and Hrvol would "vigorously" defend themselves against the charges should the case go to trial, but that it should never get that far. The court has said prosecutors have absolute immunity for their actions at trial, and Sanders and the government said the protection extends to pretrial actions as well.
The deprivation of liberty claimed by McGhee and Harrington, the former prosecutors contend, was a result of their conviction at trial, not of any pretrial activities.
There is no "free-standing due process right not to be framed," Deputy Solicitor General Neal K. Katyal agreed. Having to worry about a potential lawsuit when deciding whether to introduce certain evidence, Katyal said, might cause prosecutors to "flinch" from their duties.
Alito was supportive, saying witnesses in criminal cases were rarely innocent bystanders but often those who had changed their stories or cooperated with prosecutors to get a better deal. Those would be reasons for the convicted to bring lawsuits if prosecutors were not shielded, he said.
Alito and Roberts sparred with former solicitor general Paul D. Clement, who represented McGhee and Harrington. Clement said it made no sense that police officers could be liable for misconduct for pretrial actions but prosecutors playing the same investigative role couldn't be.
He mocked the idea advanced by the defense that a district attorney would have limited liability if he violated a suspect's constitutional rights before indictment but could not be sued if he used the manufactured evidence at trial.
He noted that McGhee and Harrington were suing under "one of the great civil rights statutes," and he tried to bring the debate back from the theoretical to the case at hand.
"Is it really plausible to think that the Congress that passed this statute didn't want to provide a remedy in the circumstances before the court today?" he asked.
The case is Pottawattamie County v. McGhee.
http://www.washingtonpost.com/wp-dy...0404753_pf.html
- pyo1
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