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High Court Weighs Prosecutors' Immunity

The justices of the Supreme Court struggled Wednesday to figure out whether they should allow lawsuits against prosecutors for framing a suspect. Iowa prosecutors, backed by the federal government and prosecutors across the country, contend that there is "no freestanding constitutional right not to be framed."

For most Americans, that's a breathtaking proposition. For Terry Harrington and Curtis McGhee, it's more than that.

The men, both African-American, served 25 years of a life term before the Iowa Supreme Court overturned their convictions for murder. The state's highest court said that the key witness against them was a known "liar and perjurer," and that prosecutors had withheld evidence that pointed to a different suspect in the crime. Harrington and McGhee sued, contending that police and prosecutors had worked to frame two teenagers from across the state line, while ignoring good evidence that implicated a white suspect who was the brother-in-law of the local fire chief.

Reasons For Immunity

Representing the Iowa prosecutors, lawyer Stephen Sanders says there are good reasons for prosecutorial immunity. Without it, he says, there would be a flood of lawsuits. "What you'll have is that everyone who believes that they were wrongly convicted will file lawsuits, and prosecutors will do nothing all day but defend themselves against meritless litigation," Sanders says.

On the steps of the Supreme Court on Wednesday, though, Harrington said he is more worried about the victims of prosecutorial misconduct. "I know what happened to me," he said. "And there should be concern about it because it's not OK to frame someone for murder in the United States."

When Harrington was arrested, he was 17, captain of his high school football team, and being recruited for a possible scholarship at Yale. Less than two years later, convicted by an all-white jury, he was sentenced to life without parole. "The very first day I went to prison, I was devastated," Harrington recalled on Wednesday. "I cried, and I cried, and I cried. But you have to stay focused. This is what I was looking forward to. Being right here, right now, today, is what kept me all those 25 years I was in prison."

Harrington sat with his daughter and girlfriend as the lawyer for the prosecutors pointed to a long line of Supreme Court decisions that say prosecutors are immune from civil lawsuits for their actions at trial. The question posed was whether prosecutors who work side by side with police at the investigative stage of a case are also immune, even though the police are not.

Separating Case's Investigative, Trial Phases

Sanders, the prosecutors' lawyer, told the justices that it is impossible to separate the investigative phase of a case from the trial because without a conviction, there is no deprivation of liberty for the defendant, and he has no legal claim that his constitutional rights were violated.

Justice Anthony Kennedy immediately pointed to a 1993 Supreme Court ruling that said prosecutors can be sued for their actions before charges are filed. "Your case here is just a polite way of telling us we wasted our time" in that decision, said Kennedy, that we were "just spinning our wheels?"

Justice Sonia Sotomayor, who spent five years as a Manhattan prosecutor, also seemed unsympathetic. Why can't you separate the fabrication of evidence pre-trial, she asked, from the use of the evidence at trial?

Because, said Sanders, it all leads to the wrongful conviction at trial, and under established law, a prosecutor is free to willfully bring criminal charges based on "good evidence, bad evidence, or no evidence at all." The established law, said Sanders, is that the prosecutor is immune regardless.

Justice Ruth Bader Ginsburg was skeptical. If this fabrication had not occurred, she observed, there never would have been any trial at all.

U.S. Government Position

Siding with the prosecutors in court Wednesday was the U.S. government, represented by Deputy Solicitor General Neal Katyal. Like Sanders, Katyal asserted there is no constitutional right not to be framed.

If prosecutors are immune, asked Justice Antonin Scalia, how do you get the policeman who has fabricated evidence? Sanders replied that the policeman is liable because he is passing the fabricated evidence to an "innocent prosecutor."

Kennedy followed up, asking, "What if the prosecutor knows the evidence is fabricated?" Sanders said that even then, the prosecutor would be immune from any lawsuit.

So, said Kennedy, "the more aggravated" the wrong, "the greater the immunity."

That prompted Sanders to say that prosecutors shouldn't have to worry at trial about being sued or else they would "flinch" and "not introduce evidence." Sotomayor seemed incredulous: "You want to send that message?" she asked. Don't you want prosecutors "not merely to flinch, but to stop when they believe evidence is fabricated?"

At this point in the argument, it looked like there might be at least five votes against the prosecutors in this case.

Prosecutorial Immunity

The worm seemed to turn a bit, though, when Paul Clement, former solicitor general in the Bush administration and now the lawyer for the wronged defendants, tried to define where to draw the line on prosecutorial immunity.

Leading the charge against Clement's position were Chief Justice John Roberts and Justice Samuel Alito, both recent Bush appointees. Alito, who served for seven years as a federal prosecutor, asked the most practical question. Suppose, for example, a prosecutor is investigating an insider-trading case, and the chief financial officer tells one story, then under pressure, tells another, and in exchange for a lighter sentence, implicates the CEO of the company. Could the prosecutor be sued later?

What is missing in that scenario, Clement replied, is fabricated evidence, and any action by the prosecutor prior to indictment.

Alito theorized that the defense might view the evidence as fabricated, and, he observed, the prosecutor, before taking the case to the grand jury, may well want to "look the witness in the eye" to see whether he is "credible."

"I'm worried about what Justice Alito brought up," chimed in Justice Stephen Breyer. "All things being equal, I think it's probably a good thing to get prosecutors involved in the questioning process" early. "That has kind of a check on police."

Clement replied that if you don't have probable cause to arrest an individual, then police and prosecutors should be engaging in the "truth-seeking function." But once you have probable cause to believe this is the person "whodunit," then the prosecutor has a job to do, to put on a case, and at that point, he has immunity for his actions.

By the end of the argument, all that was clear was that this was a case of line-drawing to make the justices squirm.

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