Dispatches from the Creation Wars

Balko on Absolute Prosecutorial Immunity

Balko has an article at Reason about a case the Supreme Court will hear this fall over what seems like a perfectly obvious question: Can a prosecutor be held personally liable for his actions if he intentionally falsifies testimony and/or evidence in a prosecution that puts an innocent person in prison for 25 years? If you think the answer should obviously be yes, you’re a sane, reasonable, decent human being.

If you think the answer should be no because prosecutors should be absolutely immune to any civil suits even if it can be proven that they deliberately violated the law and created fake evidence on which to convict an innocent person, then you must be a prosecutor. Or one of 27 state attorneys general. Or the Obama administration. They all filed briefs taking that heinous position.

Balko explains the facts of the case:

A prosecutor manufactures evidence in order to win a conviction. After the convicted serves 25 years in prison, exculpatory evidence pointing to another perpetrator surfaces. The convicted is released. Should he be able to sue the prosecutor who concocted the false evidence used to convict him?

Believe it or not, it’s still an open question. In November, the Supreme Court will hear arguments on Pottawattamie v. McGhee in order to resolve it. The facts of the case aren’t in dispute. In 1978, a retired Iowa police captain was killed by a shotgun blast while working as a private security guard. Prosecutors Joseph Hrvol and David Richter then worked with local police to manufacture evidence against the two chief suspects, Terry Harrington and Curtis McGhee, Jr. The two men were convicted of the murder in separate trials, and each was sentenced to life without parole.

The Iowa Supreme Court set aside both convictions in 2003, citing exculpatory evidence pointing to another suspect that was withheld from defense counsel in both trials. Both men were eventually released from prison. Seeking damages for losing 25 years of their lives, they brought a civil rights suit against the police, prosecutors, and county that convicted them. Hrvol and Richter maintain that under the Supreme Court’s decision in the 1976 case Imbler v. Pacthman, they have absolute immunity against such a suit.

In Imbler, the Supreme Court determined that a prosecutor who knowingly uses false testimony and withholds exculpatory evidence is immune from damages, even in cases where his misdeeds result in a wrongful conviction. The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring. In another case involving a falsely convicted man attempting to bring a lawsuit, the Court extended absolute immunity to include district attorneys who poorly supervise their subordinates.

Hrvol and Richter contend that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect’s innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years.

This isn’t just qualified immunity they’re arguing for. Most public officials have qualified immunity, which means that they can’t be sued personally for actions taken in the course of their public duties unless it can be shown that they willfully violated someone’s “clearly established statutory or constitutional rights.” 90% of the time, qualified immunity is enough to prevent suits against public officials. It’s a fairly high standard to meet.

Nor are they arguing that prosecutors should only be held accountable for wrongful convictions if it can be proven that they proactively and intentionally created false evidence or violated the clear legal and ethical requirements of their position. That would distinguish between wrongful convictions that happen as a result of sincere belief or misinterpretation of the evidence and those that happen as a result of willful misconduct.

But here, they are arguing for absolute immunity, for the idea that no prosecutor could ever be sued under any circumstances even if it can be proven conclusively that they intentionally faked evidence and lied to the court, destroying the life of an innocent person. The moral myopia required to sustain such an argument is staggering.