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Justices Weigh Opening Prosecutors Up To Lawsuits

The Supreme Court on Wednesday questioned whether allowing persons wrongfully convicted of crimes to sue prosecutors would have a chilling effect on prosecutions.

During oral arguments in Pottawattamie County v. McGhee, several justices said they were concerned about how their ruling would affect honest prosecutors if suspects could sue because they didn't like a jury verdict.

The case revolves around two young men, Terry Harrington and Curtis McGhee, who were arrested in 1977 for the first-degree murder of a retired police officer in Council Bluffs, Iowa.

The principal witness was 16-year-old Kevin Hughes, who had a criminal record and who, after being arrested in a stolen car, first fingered two other men. He also initially got wrong the site of the shooting and the weapon, and failed a polygraph test.

Harrington and McGhee, who are black, were convicted by an all-white jury in the mostly white community of Council Bluffs. They served 25 years in prison before new evidence came to light, allegedly showing that prosecutors had coached Hughes until his story matched the facts, and coerced other witnesses into lying.

Harrington and McGhee's lawyers also said police records showed that authorities withheld evidence that pointed to another suspect — a white man who was seen with a shotgun near the scene of the crime. Charles Gates, the brother-in-law of a Council Bluffs Fire Department captain, also failed a polygraph, but authorities abandoned their interest in him.

Harrington and McGhee's convictions were overturned, and they sued the two former Pottawattamie County, Iowa, prosecutors, David Richter and his assistant Joseph Hrvol. They claimed that Richter and Hrvol violated their constitutional rights by failing to disclose that witnesses and police had identified another, more likely suspect.

On Wednesday, former Bush administration Solicitor General Paul Clement, who represented McGhee, told the justices that politics and race had played a role in the case. He said the prosecutors knew the testimony they were assembling was false, even before anyone was charged.

Stephen Sanders, the lawyer for the prosecutors, said even if the men were framed, prosecutors have absolute immunity from being sued under established Supreme Court precedent.

Federal courts, however, said the immunity does not extend to their work before the trial began and rejected their motions to dismiss the lawsuit.

Ordinarily, prosecutors are immune from lawsuits based on their work at trial. The justices must decide whether that immunity stretches to the prosecutorial work that happens before the trial.

From NPR staff and wire services

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