Wednesday, November 4, 2009

Supreme Court Bizarro World

I just read one of the most surreal oral argument transcripts I have ever seen.  Wednesday at the U.S. Supreme Court, the justices heard the case of Pottawatamie County, Iowa et al vs. Curtis McGhee et al.  The case started back in 1977 when McGhee and Terry Harrington were prosecuted for murder.  But the prosecution was flawed from the start as the prosecutors failed to turn over evidence of another suspect and coached the witness who proved to be the key witness against the two.  In short, the prosecutors told that witness what to say to frame these two defendants.

Cut to 2003 when the convictions unraveled.  Once exonerated, the two defendants sued a bunch of people, including the two prosecutors.  The prosecutors responded that they were protected by the absolute immunity courts have previously afforded to prosecutors engaged in their trial duties.  Wednesday's oral argument centered around this question of whether prosecutors who fabricate evidence in the investigation stage should be immune from civil suit if they then use that fabricated evidence at trial.  Of course, the prosecutor's attorney also argued there wouldn't have been any Due Process violation if the prosecutors had fabricated evidence and then it had NOT led to convictions.   Basically, prosecutors can truly do no wrong.  Well, they can never be sued for it, at least.  Either they're immune or there's no liability.

The transcript of this argument was oddly seductive, even as a part of my brain screamed about how ludicrous this all is.  The Court spent a lot of time arguing about when, or if, a Due Process violation occurs if a prosecutor fabricates evidence and whether a prosecutor who fabricates evidence can protect himself from subsequent suit by actually using that evidence at trial (because then the absolute immunity at trial would kick in).  As I read it, I kept screaming in the back of my head, "We're talking about prosecutors fabricating a witness' testimony that was used to convict two innocent boys of murder!"  It was easier than you might think to get sucked in to the prosecutors' argument about why absolute immunity should prevail.  They use big, shiny words and innocuous phrases that make it all seem so reasonable to declare prosecutors have immunity for their activities.  I could see that these prosecutors truly believe it would have a chilling effect on prosecutors if they are able to be sued for misconduct during pre-trial investigations.  Prosecutors will be afraid to do their jobs if they think they might be sued later!  While that sounds good, the rational part of my brain kept muttering, "Umm, is fabricating evidence really a part of their jobs?"  I could see justices were also quite willing to buy into this idea that it would be a terrible policy idea to allow wronged defendants to sue their prosecutors, overlooking the idea that it's terrible policy to allow prosecutors to fabricate evidence and use that evidence at trial without fear of reprisal.

But as soon as you step away from the world of sterile legal concepts and legalese, stop reading the transcript and put down the briefs and case law, there's really only one rational answer: OF COURSE defendants should be able to sue prosecutors who fabricate evidence against them to secure convictions.  OF COURSE that behavior should not be protected in any way, shape, or form.  OF COURSE such a ruling should (we hope) have a chilling effect on prosecutors: they might think twice before coaching a witness in exactly what to say to implicate an innocent defendant! 

Sure, like any case, it may lead to some non-meritorious law suits, but shouldn't we be able to trust our trial system to weed out the frivolous suits?  That seems like a small price to pay so that the truly wronged defendants, like Curtis McGhee and Terry Harrington can sue the crap out of the prosecutors who stole over 20 years of their lives.  After reading that oral argument transcript, though, I'm not all that optimistic that such a clear, obvious, rational answer will prevail. 


Burt Likko said...

Well, it all really comes down to Anthony Kennedy, doesn't it? We know that Roberts, Scalia, Thomas, and Alito will vote for the prosecutors; we know that Stevens, Ginsburg, Breyer, and presumably Sotomayor will vote for McGhee.

What kinds of questions was Kennedy asking? Did he leave any clues about how he was leaning? As I recall, he's generally pro-government on criminal law issues, which if true does not bode well for the result.

S said...

Sotomayor did seem screwed defendant-friendly. Kennedy just loves being that all-powerful swing vote, doesn't he.

His first question to the prosecutor's lawyer was, "Your case is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons?" Not a great start for that side. Then he also posed the question, "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." He came back to that point several times.

During the defendants' argument, he was asking what exactly the constitutional violation is and when it occurs. I really don't get a sense for where exactly he will fall, but I don't think he's comfortable with blanket immunity.

Bob S. said...


Have a question about this statement:

OF COURSE defendants should be able to sue prosecutors who fabricate evidence against them to secure convictions.

Couldn't, in some cases, the point be made that the prosecutor wouldn't have gone to trial or pressed charges if the evidence wasn't fabricated?

Does the defendant have any recourse in that type of situation?

S said...

Nobody seriously disputes that using fabricated evidence at trial to secure a conviction is a constitutional violation because it is a deprivation of liberty without due process of law. But, the prosecutor who uses that evidence at trial is absolutely immune from civil suit. A police officer who fabricated that evidence could be liable. Yesterday's case was asking the question of whether the prosecutor who fabricated the evidence could be liable or whether his absolute immunity at trial would protect even his pre-trial shenanigans. It seems a little absurd to think that a prosecutor can protect himself from civil suit simply by convicting the defendant using the evidence he fabricated.

If the defendant is not convicted or even sent to trial, but is arrested or jailed pre-trial based on fabricated evidence, the violation there is considered to be a 4th Amendment violation. But that absolute immunity at trial will still protect a prosecutor who takes the case to trial. I don't know how the Court would answer the question of whether a prosecutor can be sued under the 4th Amendment for fabricating evidence that results in a wrongful charge being filed.

I think we'll have to see how this decision comes out to know more about when, if ever, prosecutors can be sued.

Laci the Chinese Crested said...

I have no strong hopes given the decisions coming out of the Roberts' Court.

Of course, not allowing for compensation makes the US system of justice look corrupt in the eyes of the world. That also knocks the US off its moral high horse.

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