Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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.
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This kind of thing is why we need a legal show (or even several) about defense attorneys. It might be a stretch, but I bet L&O's "The DA is always right" mentality has probably influenced this debate more than a thousand underreported cases of prosecutorial malpractice.
Posted by: nedlum | September 30, 2009 9:51 AM
Posted by: Schmeer | September 30, 2009 9:52 AM
Jesus H. Fucking Christ, Ed (happy Blasphemy Day!). Prosecutors need to use their judgement in proving someone broke the law. They can't have that judgement compromised by not breaking the law.
Posted by: 2-D Man | September 30, 2009 9:56 AM
Absolutely unthinkable. I'm certain that we can trust this Court to do the right thing. After all, this is almost as bad as insisting on executing someone even with uncontested evidence of his innocence in hand.
Posted by: Yagotta B. Kidding | September 30, 2009 9:58 AM
The problem isn't with imposing penalties against prosecutors who manufacture evidence; the problem is the potential for every inmate with time on his hands to claim that the prosecutor made stuff up.
Prosecutor: I just presented the evidence I had.
Inmate: Prosecutor framed me.
Court: Question of fact, let the jury decide.
Is this any worse than the situation faced by police officers? I don't know. But, if we're going to do away with absolute prosecutorial immunity, lets do away absolute judicial immunity as well.
For what its worth, I disagree that qualified immunity gets police officers off the hook very often. I've handled a number of police liability cases and have become fairly familiar with the case law in the 7th Circuit. And, while officers have a lot of advantages not available to the ordinary defendant, qualified immunity doesn't seem to be one of the more successful ones.
Posted by: Doug | September 30, 2009 10:01 AM
Schmeer said what I was thinking. Couldn't we rephrase that "The Court determined that subjecting prosecutors to the possibility of such suits would affect their judgment in determining what cases to bring."
"The Court determined that subjecting criminals to the possibility of such suits would affect their judgment in determining what crimes they might commit."
Well, yeah, that's pretty much the point of having fucking laws in the first place. The fact that this is going all the way to the SCOTUS makes me want to see the history of this case. I think I'm going to look it up, and the Imbler case as well. That is just staggering to me.
Posted by: FastLane | September 30, 2009 10:12 AM
Oh you mean a mini Supreme Court? That's what it would be. Period.
Able to serve and make decisions without having to explain yourself or your actions and go to sleep at night without worry that you may have to pay a price for being dishonest.
Posted by: Lynn McDaniel | September 30, 2009 10:28 AM
nedlum wrote:
You may have a point, but have you ever heard of Perry Mason, or perhaps Matlock? Both were wildly popular shows, and I'm sure there are others I just can't recall this early in the morning. So TV's fictional coverage of the legal process hasn't been completely one-sided.
~David D.G.
Posted by: David D.G. | September 30, 2009 10:33 AM
Absolute immunity is bad in any case, but it won't fall. If the SCOTUS kills prosecutorial absolute immunity, the same arguments will apply to the absolute immunity of judges. And they are not going to do away with that.
Posted by: Mu | September 30, 2009 10:46 AM
Great argument Ed, which is one of the primary reasons I read your blog every day.
Posted by: Michael Heath | September 30, 2009 11:08 AM
The holding from Imbler:
Since it is not within the scope of the prosecutor's job to make stuff up, I fail to see how this precedent helps the Defendants. It is not a surprise to see the Justice [sic] Department take the stand it has, although it is a little dishonest to suggest that this is the view of the Obama administraion.
Posted by: kehrsam | September 30, 2009 11:17 AM
I'm way too late to get in ahead of schmeer, so, "what he said."
Posted by: James Hanley | September 30, 2009 11:28 AM
In principle, I can see some argument for this. In practice, in the US as it exists right now, not at all. But in principle, yes. If I were setting up a constitutional/legal process around this issue, I'd have extremely severe criminal sanctions against prosecutors who abuse due process like this (and a robust mechanism to ensure that they are enforced), and compensation from the state to the victims. But I don't see that personal financial liability is necessary in that sort of system.
The obvious question here is what happened to the prosecutors? Were they charged with anything?
Posted by: Ginger Yellow | September 30, 2009 11:36 AM
nedlum: Start watching _Raising the Bar_. Interesting take on both sides of the judicial aisle.
Posted by: Tiltmom | September 30, 2009 12:10 PM
What's not clear here is what is 'supposed' to happen to the prosecutor instead of the lawsuit? Shouldn't he face prosecution from a higher level? He's clearly broken quite a few laws.
Posted by: Scott | September 30, 2009 12:44 PM
Some of this stuff boggles my mind...right now I am constantly being told by people that I talk to about politics and governance "there is no accountability". Yet we are having to read arguments that prosecutors who engage in malfeasance should not be held accountable for those malfeasances?
This is the same mindset that allowed most government bodies to be held immune from tort damages. It places government agents beyond scrutiny or accountabiliy, and is bad governance, period. It undermines the legitimacy and respect for government that is essential for a functioning civil society.
Bluntly, the people making arguments that prosecutors should be immune are either confused, stupid, or both.
Posted by: Graham Shevlin | September 30, 2009 2:13 PM
In a case such as this, there is no accountability or redress available in civil of criminal courts for prosecutorial misconduct/malfeasance. The key arguments from the solicitor General's brief are
The point of this case and the weakness of the petitioners [the prosecutors] are not now subject to any professional sanctions if they are retired. A point that follows from this finding of misconduct is - if they did it in this case, did they do it in other cases they tried and convicted other defendants. Such blatant misconduct taints all of their prosecutorial accomplishments. See the number of overturned convictions when it was discovered that a forensic lab faked its data. It is therefore in the interest of the state and federal governments that those in the highest levels of power are subject to the highest levels of sanctions for the misuse of that power. This, of course will not happen because power tends to protect their own lack of accountability. See the current Justice Department and President's reluctance to pursue obvious criminal conduct in the previous [mis]administration.
And the prosecutors conduct was not at all carrying out their work "with courage and independence". It was more like malice or callousness. Where is justice?
Posted by: natural cynic | September 30, 2009 3:03 PM
Crimes should be prosecuted.
Criminals should be penalized.
No one is above the law . . . except, according to those who prosecute criminals, themselves.
And who decides whether these lawyers will be held accountable for their unlawful acts?
Lawyers, of course.
Posted by: James P. Moore | September 30, 2009 4:25 PM
If the SCOTUS kills prosecutorial absolute immunity, the same arguments will apply to the absolute immunity of judges. And they are not going to do away with that.
Really? I don't see why that's true. Prosecutors and judges play different roles in the justice system; it doesn't seem obviously true that the same immunity rules should apply to both.
In particular, prosecutors clearly do intentionally present false evidence from time to time, and they have an obvious incentive to do so. It's not nearly so clear that judges reach guilty verdicts that are based on evidence they know is fake or perjured, and although they might have some incentive to do so, it's certainly not such a strong incentive as prosecutors have.
One can very easily argue that prosecutors should not have absolute immunity with respect to intentional falsification of evidence or subornation of perjury, even if they should have absolute immunity with respect to every other kind of job-related misconduct or negligence.
Posted by: Tom | September 30, 2009 4:44 PM
The Practice was primarily about criminal defense and Boston Legal and Ally McBeal occasionally got into it. If fact, on The Practice, the head DA got caught withholding exculpatory evidence (basically, picking the autopsy results he liked) when he had a personal grudge against a defendant. Another episode dealt with Helen Gamble, an assistant DA and a main character, coming to believe a guy was innocent over the course of a rape prosecution and not be allowed to drop charges.
Posted by: Ace of Sevens | September 30, 2009 4:46 PM
So prosecutors are above the law and can knowingly and willingly lie without reproach? Huh, I remember the days when that was grounds for disbarment; it comes under the section on "professional ethics".
I know: let's put these prosecutors in with the "professional police" we've been seeing a lot of lately and throw a few hanging judges in (http://scienceblogs.com/pharyngula/2009/09/texas_has_state-sanctioned_mur.php) - it'll make fantastic TV! Executions every hour!
Posted by: MadScientist | September 30, 2009 5:33 PM
@Doug: This isn't about the police, it's about the prosecutor. You have to have a pretty damned good case to go after them; it's almost like trying to sue the president. It's tougher for cops because abuse is widespread and well documented in the ranks of the police. I don't believe that criminals will use the "I've been framed by the prosecutor" excuse because courts do not like frivolous suits. If there isn't a mountain of evidence, what hope does the suit have of being taken? What is far more important here is that prosecutors are not made immune to the law and allowed to subvert the justice system for their own purposes. Otherwise you open up the possibility of Star Chambers cropping up around the country with crooked police collaborating with crooked prosecutors. Want a nigger hung? Just go to Prosecutor X, he'll get the job done!
Posted by: MadScientist | September 30, 2009 5:49 PM
Here is the ruling in Imbler v. Pachtman, 424 U.S. 409 (1976):
Held: A state prosecuting attorney who, as here, acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the State's case, is absolutely immune from a civil suit for damages under § 1983 for alleged deprivations of the accused's constitutional rights. Pp. 424 U. S. 417-431.
If I was arguing Pottawattamie v. McGhee before SCOTUS, one of the main points I'd hammer on is:
"So, your honors, if you uphold Pottawattamie, and continue the travesty of Imbler, you're basically saying that falsifying and manufaturing evidence in order to gain a conviction is 'within the scope of his duties' for a prosecutor."
Posted by: Steve | September 30, 2009 5:54 PM
Said prosecutor should be killed in public.
Posted by: website | September 30, 2009 6:32 PM
Isn't giving false testimony perjury? Doesn’t every piece of evidence in a trial have to be testified about under oath?
I can see a point about not holding prosecutors personally responsible for civil damages. They don’t have deep pockets anyway. It is the governmental authority that the prosecutor works for which needs to be held responsible for civil damages to compensate the injured party for the misconduct that the governmental authority allowed to happen without proper oversight.
I think that civil damages for prosecutors are not enough. They need to be criminally sanctioned when they suborn perjury. The governmental authority they work for needs to be sanctioned with civil damages for the prosecutors suborning perjury.
It is the problem of who watches the watchers. For example in that case of the judge and the prosecutor having an affair and not disclosing it in a murder trial. What the defendant needs to do is sue what ever government authority allowed that conflict to happen.
Posted by: daedalus2u | September 30, 2009 6:48 PM
>Isn't giving false testimony perjury?
Technically, I don't think so. The lawyers for the prosecution (or defense) are not sworn in, unlike the witnesses. Seems a bit of an oversight, no? I hope I'm wrong, but I'm pretty sure this is the case.
Posted by: FastLane | September 30, 2009 8:45 PM
What the lawyers say isn't testimony. Every bit of testimony has to be attested to by someone. Unless the prosecutors forge someone's name to a sworn statement, and then that is a crime.
Posted by: daedalus2u | September 30, 2009 9:49 PM
Justice dept workers just love successful prosecutions for the career boost they give. Im not talking about the careers of the victims.
Posted by: web | September 30, 2009 10:43 PM
"Hmm. I'd like to prosecute this mobster/corporate criminal, but he'll sic three hundred lawyers on my ass and I'll be defending myself till doomsday. Better go for the black homeless guy instead".
Not that this doesn't already happen. But permitting civil suits against prosecutors will make it a jillion times worse.
Surely there are existing laws for perjury and prosecutorial misconduct? Maybe those laws ought to be enforced.
Posted by: Paul Murray | October 1, 2009 12:05 AM
Re FastLane @ #26
Actually, it is against bar association ethics for a lawyer to knowingly put on false testimony. It's called suborning perjury and and a lawyer caught doing it can be disbarred.
Posted by: SLC | October 1, 2009 12:27 PM
There has to be some form of public compensation for someone injured by an unethical prosecutor. The philosophy that absolute immunity results in a public benefit is morally bankrupt if it requires the injured to bear the entire cost of that perceived public benefit. If one group of society can push all of the cost of percieved public good onto another group, there is never any cost/benefit analysis to determine whether the perceived public good is being purchased at too high a cost to society. The obvious and equitable solution is a "wrongful conviction trust fund" or some such name.The objective of such a fund would be to at least try to make someone whole who deserves to be made whole but cannot be made whole because of the absolute prosecutorial immunity that is purportedly a public benefit. If absolute prosecutorial immunity is held to be a public benefit, the public should pay for it, not just those victimized in the first place. If such a fund costs more than the public is willing to pay, then the perceived public benefit of absolute prosecutorial immunity is not as great as those who can now shift its cost to others would have you believe.A free good is never valued at it is real cost. Only when people pay for what they get do they value it.
Posted by: Don | October 9, 2009 11:49 PM
No bail arrest warrant-for complaining to county officials
about unsafe public dedicated road. 100% of the case was
false evidence, manipulation of CD messages. Jury rolled
their eyes/shook their heads-if convicted 2 years in prison.
I was acquitted on all five counts. Fact could take 1983 action++++and win to get the new $1.00 award and no? attorney fees!!. Stop your dancing ALL judges are immune.
next few months ALL prosecutors immune and they can make
police and false witnesses immune by calling them investigators. How many competent courts vs immune? The
anti- consitutional virus is here-So what are we going
to do about it besides- bark and scratch.
Posted by: Fred | October 26, 2009 12:40 PM
Pottawattamie V McGhee-will mean its legal to frame
someone. The immunities at all levels is treason.
I'm waiting because the county actors made two false
cases that failed-the jury ruled me not guilty on all five counts. All I want is a competent court. Don't think
that will happen. When county players said they immune
from Federal and State laws/stautes-I'm a believer.
Posted by: Bill | December 21, 2009 2:37 PM
Actually, it is against bar association ethics for a lawyer to knowingly put on false testimony. It's called suborning perjury and and a lawyer caught doing it can be disbarred.
Posted by: Houston Criminal Attorney | March 17, 2011 1:22 PM