High Court Justices Weigh Tradition of Prosecutorial Immunity Against Potential Civil Rights Violations

• Tony Mauro, The National Law Journal
• On 3:02 am EST, Thursday November 5, 2009

U.S. Supreme Court justices appeared torn Wednesday over whether prosecutors deserve total immunity from lawsuits for their official acts, even when they fabricate evidence in pursuit of a murder indictment and conviction.

The Court heard arguments in Pottawattamie County v. McGhee and Harrington, brought by two men who were freed after serving 25 years in prison for murdering a retired Iowa policeman. Based on recently obtained police files, Curtis McGhee and Terry Harrington sued prosecutors for violating their civil rights by coercing and coaching witnesses to falsely accuse them of the crime, even when evidence pointed toward another suspect.

Police who manipulate evidence have only qualified immunity, but prosecutors have long enjoyed absolute immunity, at least for their actions at trial. At issue in the Iowa case is the scope of immunity for prosecutors who are performing police-like duties before trial and then either participate or don't participate in the trial where they would acquire full immunity. County Attorney David Richter and an assistant county attorney, Joseph Hrvol, were targeted in the lawsuit, which alleges prosecutorial wrongdoing through the investigation that carried into the trial.

Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court. "We're worried about the chilling effect on the prosecutors," said Chief Justice John Roberts Jr. at one point.

The former Iowa inmates had an unusual advocate making their case Wednesday: former Bush administration Solicitor General Paul Clement, who represented the Bush Justice Department in 49 previous arguments before the Court.

Now with King & Spalding, Clement agreed to represent the two pro bono to make the point that even prosecutorial immunity has its limits, and that the Iowa prosecutors' misdeeds were beyond the pale.

"The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable," Clement told the Court. "I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial."

Clement added that it would be "really perverse" to have a system where police acting alone could be sued for fabricating evidence, but the misdeeds would be immunized from suit if a prosecutor joins in the wrongdoing.

But Clement, along with the justices, struggled to define the point at which prosecutors doing police-like investigative work at early stages of a case are transformed into prosecutors whose actions should not be challenged.

For their part, the lawyers arguing in favor of immunity said the Court needed to hold the line on lawsuits against prosecutors, to prevent litigation by every disgruntled defendant who can poke holes in the government's case.

Stephen Sanders, the lawyer for Pottawattamie County, said that exposing prosecutors to lawsuits and adopting a freestanding due process right for defendants in cases like the one before the Court "would work a radical change in the law of immunity because it would mean far more wrongful conviction claims against prosecutors would go forward under qualified immunity." Sanders, an associate at Mayer Brown, was arguing his first case before the high court.

Sanders said other remedies could be pursued against prosecutors, including disciplinary actions under ethics rules.

Deputy U.S. Solicitor General Neal Katyal, who also argued in support of the Iowa county, told the Court, "If prosecutors have to worry at trial that every act they undertake will somehow open the door to liability, then they will flinch in the performance of their duties and not introduce that evidence." Justice Sonia Sotomayor responded skeptically, suggesting that law enforcement officials should "not merely flinch but stop if they have reason to believe that evidence is fabricated."

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