Today the Supreme Court heard arguments on a case fueled by fear, and the decision could have frightening results for civil liberties.
Here’s the background: two former Pottawattamie County, Iowa, prosecutors, Attorney Dave Richter and his assistant Joseph Hrvol are being sued by Curtis W. McGhee Jr., and Terry Harrington, who were convicted of first-degree murder and sentenced to life in prison in 1978 for the death of retired police officer John Schweer. The men were released from prison after 25 years.
Evidence showed the prosecutors had failed to share evidence that pointed to another man, Charles Gates, as a possible suspect in Schweer’s slaying. They later denied that Gates was a suspect, even though witnesses placed him near the scene of the crime and his name appeared in several police reports. He also failed a polygraph test and the prosecutors themselves even consulted an astrologer about their suspicions of Gates. USA Today, 11/4/09
McGhee and Harrington filed lawsuits against the former prosecutors, saying they had McGhee and Harrington “arrested without probable cause, coerced and coached witnesses, fabricated evidence against them and concealed evidence that could have cleared them.” They claimed authorities were eager to charge someone and that they were targeted because they are black.
Laws on the books render prosecutors immune from lawsuits based on their work at trial. That immunity may or may not extend to the prosecutorial work that happens before the trial begins. A Federal court says it does not, but now it’s up to the high court to make a final ruling.
In one corner we have fear that prosecutors can fabricate evidence, cajole witnesses and otherwise skew the process to get a conviction even if they know the defendant isn’t guilty. In the other corner we have fear that if prosecutors aren’t immune from charges, they’ll be less likely to move forward with cases in fear of being personally sued and ruined by revenge-minded defendants.
The second of those concerns is the ubiquitous “chilling effect.” Quoting Justice Stephen Breyer: “This will discourage the prosecutors from becoming involved in the witness questioning process, at least not before the police are well on the way. And that is a very negative incentive, I would think.” USA Today, 11/4/09
Yes, you’d think. But, you might also think that as the law stands, prosecutors have no disincentive–aside from personal integrity–to do anything and everything it takes to get a conviction. What’s more, under the current law if a prosecutor fabricates evidence and gives it to another prosecutor to use at trial, they can be sued. But if a prosecutor fabricates evidence and then uses the evidence at a trial that they are working, they’re immune.
On both sides of the argument fear reigns, and on both sides the fear is at least partially legitimate. There’s no question that if immunity is lifted, prosecutors will be sued more often. There’s also no question that some prosecutors are using the veil of immunity to railroad innocent people. Which risk is worse?
It’s important to note that prosecutorial immunity isn’t qualified immunity, it’s absolute. The standard for eclipsing it is stratospherically high, just as it is for suing a judge. A victim of prosecutorial misconduct can sit in jail for 20+ years and, if fortunate enough to even get out, will likely have no civil remedy. Sorry, thanks for playing.
If the Supreme Court decides to uphold absolute immunity, it will have bought into the argument that good prosecutors will be wrongly sued if protection is lifted. But offering unqualified protection to any powerful group is dangerous, and innocent people will suffer the consequences. A better decision would be to downgrade prosecutorial immunity to ‘qualified‘ status, which would allow prosecutors to be sued only in cases where it can be shown that they violated “clearly established constitutional law with a culpable state of mind.”
That’s a reasonable standard that would protect most prosecutors who are doing their jobs honestly, and out those who are knowingly pursuing wrongful convictions. We’ll find out next year which way the fear pendulum swung.