Friday, September 25, 2009

Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence

I'm very much looking forward to the oral arguments forthcoming at the US Supreme Court on November 4 regarding Pottawattamie County vs. McGhee, et. al., in which SCOTUS will decide whether prosecutors have "absolute immunity" when they fabricate evidence and present it at trial.

Of course, prosecutors are concerned that opening themselves up to civil liability could have a "chilling effect," but quite frankly I want their behavior "chilled" if they're fabricating evidence or coercing witnesses to lie, which is what allegedly happened in this Iowa case. According to Raw Story:

In 1978, Iowa teenagers Curtis McGhee Jr. and Terry Harrington were sentenced to life imprisonment after being convicted of murdering a security guard. After serving more than two decades, both men were released after Harrington obtained "previously undisclosed reports from the Council Bluffs Police Department that pointed to the existence of another suspect for the murder," according to court documents.

The two men claim that in investigating the murder, Pottawattamie County prosecutors had coerced a witness to implicate them, "disregarded obviously false details" of the witness's accounts, "coached" the witness to give an account more consistent with the known facts of the case and then "coerced" other false witness testimony to corroborate that account.

County prosecutors, however, invoked "prosecutorial immunity," a concept University of Iowa College of Law Professor Todd Pettys described to Raw Story as "this notion that no matter what a prosecutor does at trial they can't be sued."

The blogs Simple Justice and Crime and Federalism analyze competing amici briefs in the case, which are all available here. The CATO Institute also weighed in, and there's a discussion over at the Volokh Conspiracy over the Department of Justice's contention that prosecutors enjoy "absolute immunity." Jonathon Adler points out that police officers, by comparison, have only "qualified immunity," noting that "it seems incongruous to defend the position that prosecutors should have greater immunity for deliberate misconduct of this sort than do police officers." Doesn't it, though?


R. Shackelford said...

That's unconscionable. If a prosecutor fabricates evidence, thus depriving an innocent man of his freedom, he ought to go to jail for the same length of time the victim of his lies served. I reckon then we'd see some scrupulously honest prosecutors, for a change.

Anonymous said...

Procecutors seek to be immune from accountability while holding all others accountable. I have no problem with conscientious prosecutors but those that are damn-the-evidence-let's-convict destroy all credibility in the criminal justice system. But even the consciencious prosecutors turn a blind eye to the rogues and the lazy. Change will have to come from outside of the ranks. Maybe, just maybe . . . .

Anonymous said...

How can anyone claim justice is served by lies?

How can a prosecutor claim they should not be held accountable when do anything that deliberately obstructs justice?

How can prosecutors claim their actions are not subject to the law?

How can anyone in their right mind even ask SCOTUS for absolute immunity whey they break the law?

Land of the free.........humphhh!

doran said...

If Pottawattamie County and prosecutors in general win this case, truly mean, venal, corrupt prosecutors will become the norm, not the exception. There will be no incentive at all for prosecutors not to fabricate evidence. There will be ample incentive to fabricate evidence sufficient to charge and convict the unpopular, the politically incorrect, the politically bothersome, and the politically active.

With a win in this case in hand, prosecutors everywhere will be in a position to fabricate cases against their political opponents and critics. Our systems of justice will soon look like something from a retarded dictatorship.

Anonymous said...

We need to start making a list of changes which need to be made to the Texas Penal Code. Lets start with this situation, and make it a crime for a prosecutor to do what those cretins in Pottawattamie County did. "Abuse of office" or "official oppression" are not specific enough. We need an offense definition that is specifically directed at crooked prosecutors.

And then, lets make it a crime for a peace officer to engage in this same kind of deplorable conduct.

And another one to make it a crime for a peace officer to make an arrest that is not justified by being pursuant to a warrant or to probable cause.

It is time for us to take back the justice system in Texas, to take it away from the authoritarians and police state advocates.

Anonymous said...

Nice job Grits on writing an inflammatory headline.

Gritsforbreakfast said...

11:12, do you find the headline inaccurate?

HadEnough said...

Grits, you are right, those that make it up as they go along need to be "chilled." This one should be interesting on many levels.
I would be interested to hear your take on another aspect of this type behavior. You speak to those that "coerce" false testimony. What about those who offer lesser charges and/or other consideration for reduced sentences to those who are, with little doubt, deeply involved and facing serious, long term incarceration, if they will offer testimony that implicates others. This allows the prosecutor to cast the wide "conspiracy" net over almost anyone that he chooses. This often includes those that they know, with almost certainty, had no real involvement with the "crime" but are easy targets. These are usually drug related cases where the prime defendant is used to involve those who, while not active participants, danced a little too close to the flames and had an awareness of what was going on.
As you described, the testimony may be and frequently is "tailored' and full of false details and is almost impossible to disprove by the defense. It is a classic he said/she said situation and the prosecutor holds all of the cards. The result is that the now "co-defendant" will accept a plea agreement for many reasons including risk and expense and perhaps even guilt on some level. Not many can afford to take on the unlimited resources of the government. This type of conduct is frequently seen at the federal level with less than honorable, self serving AUSA's using this tactic to pad their conviction rates.

PirateFriedman said...

Not a lawyer, but it seems that this law comes from:

Civil Rights Act of 1871. Now there is some legislation that should be revised!

I see some irony that a law intended to protect minorities also protects incompetent prosecutors...who often persecute minorities. Funny how the federal government works.

Anonymous said...

As ugly as I think this case is I think that it's a separation of powers issue. There is no justifying what the prosecutors did here if true. But the ultimate recourse for that miscount is in the political system and not the judicial one.

The difference between police offices and prosecutors is easy. No one elected a police officer; the people elected a prosecutor. If there is an award to be made it should come from the legislature, not the judicial branch of government.

I do think that elected prosecutors hold absolute immunity because ultimately they are responsible to the democratic process, not a judicial one.

Karo said...

Everyone knows public officials are not legally responsible for their misdeeds as long as they were duly elected. Right Mr. 2:29pm?

HadEnough said...

Karo makes a good (tongue in cheek) point. Don't know about Texas but in my neck of the woods only the D.A. is elected and he/she hires all of the subordinate prosecutors. At the Fed level aren't the US Attorneys appointed by and serve at the pleasure of the president? The US Atty then 'hires' the AUSA's right? If all of this is correct, there has to be very few who are "elected" and still fall into this group of miscreants as, unless it is a high profile case, the D.A.'s & U S Attys don't usually get involved, or do they, Hmmmm. Seems that most of the corruption is in the ranks of the "climbers."

Sam said...

I'll be giving an ethics presentation to a group of young prosecutors next week and had planned on discussing the fact that a prosecutor can lose their immunity if they use fabricated evidence knowingly. With your permission i'd like to mention this blog post for discussion.

Gritsforbreakfast said...

By all means Sam, have at it. :)

You might also check out the linked amici if you're presenting on the subject.

Sam said...

Thanks Scott,

I already have and this should make for a lively discussion I predict.

Anonymous said...

man, that sends a chill down my spine. i hope i'm never in a court room again...for any reason.

Ryan Paige said...

"I do think that elected prosecutors hold absolute immunity because ultimately they are responsible to the democratic process, not a judicial one."

You should've called former Dallas Mayor Pro Tem Don Hill's lawyers and given them that tip for their defense.

Don Hill is absolutely immune from the charge of taking bribes because he was an elected official at the time.

I'll also have to remember to vote for all the prosecutors my county employs the next time I go vote. I only remember the District Attorney being an elected official the last time around.

And, also, how come my elected sheriff only gets qualified immunity? Since she's elected, she should be able to do whatever she wants to do without any oversight from any court.