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.