Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
I'm not sure whether to be happy or disappointed about this. Pottawattamie County v. McGhee, the case that was to decide whether prosecutors had total immunity from civil suits even if it could be proven that they deliberately created false evidence to convict an innocent person, has been settled -- and dismissed without a ruling from the Supreme Court.
My colleague Lynda Waddington at the Iowa Independent reports that the two sides reached an agreement to settle the suit for $12 million - even after the Supreme Court had already heard oral arguments and may have been close to issuing a ruling. The Christian Science Monitor notes the dismissal of the case:
The US Supreme Court on Monday dismissed a case over whether prosecutors who knowingly procure false testimony that leads to a wrongful conviction can later be sued for damages.Lawyers announced that the parties in the underlying lawsuit had agreed to end the case in a $12 million settlement.
Is this good news or bad news? It depends entirely on how the Supreme Court was going to rule in the case. If they were going to uphold the concept of absolute prosecutorial immunity, we should all breathe a sigh of relief that the court did not have a chance to hand down that ruling because it would mean essential lawlessness for prosecutors. If that was the case, perhaps a bullet has been dodged and a similar case can work its way up when the makeup of the court has changed and the outcome would be different.
If, on the other hand, the court was going to knock down the notion of absolute immunity for prosecutors, this is very disappointing. As it is, there is a presumption of absolute immunity that will be in place until there is a definitive ruling to the contrary from the Supreme Court.
Unfortunately, we have no way of knowing how the case would have turned out so we don't know whether to be happy or sad.
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Ed stated:
Forgive my mundane ignorance on this topic, but is there any precedent for journalists who cover the court to figure out and publish the status of the case amongst the justices at the time the case was settled? Obviously we'd like to know where they stood, however tentative some of them might have been at this juncture.
Posted by: Michael Heath | January 6, 2010 10:03 AM
That would be hella hard to do, and I'd be surprised if we see any information about that in the near future. But someone writing a book (see, e.g., The Brethren, The Nine, Supreme Conflict, or various biographies of individual Justices) may well uncover it in like a decade or thereabouts. It seems like that's frequently how inside information about the SCOTUS comes out.
Posted by: hirst | January 6, 2010 10:11 AM
hirst is right. No one on the court or their clerks will say. We'll find out a few years after a justice dies, when their papers are made available to scholars and one of them finds a memo or two about that case and writes about it. That's really the only way we ever find out about behind the scenes goings-on. It's what makes those books he mentioned so fascinating.
Posted by: Ed Brayton | January 6, 2010 10:16 AM
Two thoughts:
1) I think everyone should be happy about this outcome, rather than disappointed. The two victims of the prosecutors' fraud reached a settlement that, at least to my eye, appears to give them reasonably fair compensation for the time the wrongfully spent behind bars. Although social change can certainly be effected through litigation, court disputes are, at their core, nothing more than disputes between the plaintiff and the defendant. The victims here got the outcome they wanted, IMO.
2) This will be coming back before the Court soon. As John Elwood points out at the Volokh Conspiracy, the cert grant in McGhee means the Court has taken an interest in the issue, and that interest won't just go poof because the parties have settled. Any appeals court or state supreme court ruling presenting the same issue has a much higher chance of a cert grant now than it did last year at this time.
Posted by: Chuck | January 6, 2010 11:30 AM
I don't know that I can agree with the author that "there is a presumption of absolute immunity that will be in place until there is a definitive ruling to the contrary from the Supreme Court."
The county in question settled with the suing party. This in and of itself can be seen as a tacit admission of wrong-doing; also that said county's officials figured that they were going to get their collective ass handed to them by SCOTUS.
Posted by: CaptJosh | January 6, 2010 11:47 AM
Slightly on-topic to when stuff gets dished, here's Jeffery Rosen's review of the new Antonin Scalia biography published in last Sunday's NYTs Book Review section.
I read many if not most of the books done on the SCOTUS justices. However I doubt I'll read this one though I appreciated Mr. Rosen's review. If this review is accurately framed, there's not much to learn about J. Scalia in this book that relates to how he rules and what he writes that we don't already know. The reader reviews at Amazon also didn't provide any provocative reasons to read this book if you're already following J. Scalia.
Posted by: Michael Heath | January 6, 2010 11:52 AM
This is a positive for the notion that prosecutors don't have absolute immunity. The settlement here was big bucks--$12 million-- and the settlement came after oral arguments. There was absolutely nothing left for either party to negotiate with.
The defendants' calculus was absolutely simple: what is the chance we won? They must have considered it so small that paying $12 million seemed like a great deal.
Posted by: David C. Brayton | January 6, 2010 12:28 PM
I'm clearly missing something. I can't for the life of me see the positive case for prosecutors being able to imprison innocent parties on made-up shit. Call me naive. It isn't like there's mistakes or miscarriages of justice. Falsifying evidence is deliberate and pre-meditated. I'm only against the death penalty here because it will shorten the suffeing of the crooks.
I am open to being convinced by someone, anyone making the case. Links, even?
Posted by: eddie | January 6, 2010 3:24 PM
Engaging uber-Devil's Advocate mode, in order to answer your question.... It's to discourage frivolous cases, and avoid a the chilling effect this could have on prosecution.
There is an iota of legitimacy here. Almost by definition, the convicted is going to have a beef with the prosecutor, and quite possibly a desire for retribution. How much more intense that retribution if the convicted turns out to be innocent! The animosity inherent in such a relationship could mean that convicted vs. prosecutor litigation would have a poor single-to-noise ratio.
It's not too difficult to imagine a world where a prosecutor is afraid to bring a case against a rich and/or powerful defendant, for fear that a conviction could result in years of litigation against herself. (Of course, we already have a legal system that strongly disadvantages the poor and unconnected, but I digress...)
Anyway, removing my Devil's Advocate cap -- man, that was scary! -- what I said in the preceding paragraphs is a pathetic argument for absolute immunity. There are all sorts of naturally adversarial relationships where litigation is permitted. I mean, we don't ban all malpractice suits, do we? Even though someone who experiences a surprising negative medical outcome is not unlikely to hold animosity towards their doctor?
And as important it is to hold doctor's to a high standard of responsibility, how much more important is it for prosecutors! After all, a doctor has no direct incentive to botch a medical procedure, but a prosecutor has every incentive to turn in a conviction without regard to the veracity of the testimony used to obtain that conviction. If you eliminate accountability, that only makes it worse.
I think there's a legitimate case to be made for partial immunity and/or the establishment of narrow and well-defined criteria for allowing such litigation to proceed. But absolute immunity? Bullshit. That only makes sense if you think you can staff the DA's office primarily with people of the highest ethical standard. And if there's any universal truth about humanity, it's that it's impossible to sift out a pool of people with homogeneously high ethical standards. Can't be done.
Posted by: James Sweet | January 6, 2010 4:07 PM
Thanks James for that.
Posted by: eddie | January 7, 2010 5:31 PM