Supreme Court to Decide If Prosecutors Can Be Sued For Wrongful Conviction

The Supreme Court accepted cert today in Pottawattamie County v. McGhee, 08-1065, an Iowa case in which two men wrongfully convicted of murder sued the prosecutors. Curtis W. McGhee Jr., and Terry Harrington served 25 years of a life sentence for killing a retired police officer before being freed when it turned out prosecutors had withheld evidence about another suspect and presented false testimony from witnesses.

[Prosecutors]Richter and Hrvol argued that they were immune from lawsuits because they were acting within the scope of their job. Federal courts, however, rejected their motions to dismiss the lawsuits, saying the immunity did not extend to them.

The lower courts found immunity on the withholding evidence claim but said the prosecutors can be sued for procuring false testimony during the investigation and using it against the defendants at trial. Scotus Blog has the pleadings in the case.

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    Why is it not a crime (none / 0) (#1)
    by Saul on Mon Apr 20, 2009 at 01:34:58 PM EST
    in the law for deliberately withholding exculpatory evidence which had the jury heard it would have found a defendant(s) not guilty.  Why is this deliberate misconduct not a crime on the books today?

    Because it is a crime... (none / 0) (#2)
    by kdog on Mon Apr 20, 2009 at 02:17:49 PM EST
    that can only be committed by the state...if Joe or Jane Blow could do it, there would be a criminal law.

    I really hope the 5-4 goes our way on this one!  Prosecutors get enough breaks and perks...lets level the playing field.


    the issue is a little more subtle (none / 0) (#4)
    by Bemused on Mon Apr 20, 2009 at 02:32:34 PM EST

      The claims are based in part on state law claims under the Iowa's tort claims act. The lower court held that sovereign immunity is waived only to the extent the state waived it by statute and that the state did not waive it by statute with respect to state torts sounding in false arrest, malicious prosecution, abuse of process etc.

      However, the lower court also found that the plaintiffs claims successfully raised CONSTITUTIONAL claims which require a different analysis and that immunity does not bar a suit for damages on the constitutional claims.

    The prosecutors are now arguing that the coaching of witnesses and "procuring" of false testimony cannot establish a CONSTITUIONAL claim because without more (so their argument goes) a defendan't constitutional rights are not implicated at that stage. The prosecutors claim that only the knowing USE of false testimony in court creates a a CONSTITUTIONAL issue and for that they have absoulte immunity. (see the argument from Buckley cited that if a prosecutor tortured a witness to get a false statement the person against whom the statement was used would suffer no prejudice or injury if the prosecutor then just threw away or locked the false statement in a drawer).

      The prosecutors are arguing in essence that the acts of the prosecutors must be compartmentalized into 2 groups -- investigatory misdeeds with no constitutional dimension (and for which state law confers immunity) and prosecutorial misdeeds for which they have absolute immunity. The lower court did not buy that argument and found the plaintiffs stated a constitutional claim with the allegation false evidence was procured and then used at trial and that the prosecutors are not immune for having procured false evidence that was later used at trial.

    Prosecutors breaking the law to convict (none / 0) (#5)
    by bobbski on Mon Apr 20, 2009 at 04:15:48 PM EST
    Any prosecutor who knowingly breaks the law in order to get a conviction should be required to serve the same amount of time, in the same penal facility, that the railroaded defendent served.

    Were this the law, I doubt too many of these zealous prosecutors would take the chance of tamperingt with evidence or witnesses or withholding exculpatory evidence.

    Stone them all. (none / 0) (#6)
    by oculus on Mon Apr 20, 2009 at 04:35:53 PM EST

    when did prosecutors (none / 0) (#7)
    by cpinva on Mon Apr 20, 2009 at 04:51:37 PM EST
    become above the law? that's essentially the claim these two are making. to rule other than against them would make a mockery of our judicial system. the next step would be secret trials, with secret evidence.

    oh, wait, we already have that, thanks to the bush administration!

    defense lawyers? (none / 0) (#8)
    by diogenes on Mon Apr 20, 2009 at 09:53:19 PM EST
    If a defense lawyer procures false testimony and presents it during a trial (say, by using an "expert witness" who knowingly lies or by having the defendant's girlfriend give a false alibi,) can a defense lawyer be sued?  How many criminal defense lawyers ever get disbarred for this kind of stuff?  
    If you apply the same standards to criminal defense and corporate lawyers as you propose to apply to prosecutors then a surprising number of repubs would go along with you.

    Assuming your questions are serious ... (none / 0) (#9)
    by Peter G on Mon Apr 20, 2009 at 10:17:56 PM EST
    "If a defense lawyer procures false testimony and presents it during a trial (say, by using an "expert witness" who knowingly lies or by having the defendant's girlfriend give a false alibi,) can a defense lawyer be sued?"

    Granting your facts, for purposes of discussion ... Sued by whom, pray tell?  The defense lawyer is not an agent of the government, and her/his actions do not (and by definition cannot) violate anyone constitutional rights. Procuring perjury, of course, is a crime (as well as an ethical violation), and the lawyer as well as the witnesses could be prosecuted.  Most defense attorneys are highly ethical and dedicated to law and justice.  That's just a couple of the reasons why your imaginary scenario occurs so rarely, I'm sure.  

    "How many criminal defense lawyers ever get disbarred for this kind of stuff?"

    More or less the same tiny number as may do it, I'd guess.  Most of the perjury which occurs in criminal cases, alas, is committed by police (since defendants have the right not to testify in their own cases, among other reasons).  The false testimony, alas, is presented (either knowingly or more often with a blind eye turned) by prosecutors.  However, the tiny number of defense lawyers who commit serious ethical violations and get disbarred is still larger than the even tinier number of prosecutors who ever face discipline for their violations.


    Yes (none / 0) (#12)
    by Bemused on Tue Apr 21, 2009 at 07:08:53 AM EST
      A criminal defendant/client could sue his lawyer for malpractice for presenting false testimony and could also file a habeas/ § 2254 or 2255 action raising such grounds in an ineffective assistance of counsel claim.

      To prevail, though, the client would have to show  things which would likely be difficult. First, in a malpractice case proximate causation must be shown. That means that the client would have to show that the negligently or intentionally introduced  false testimony substantially contributed to the injurious result (verdict or sentence). In very rare instances it might be possible to make the case  that a client was convicted because his lawyer presented such incredible false testimony that it turned the trier of fact against the client and the verdict did not rest on prosecution evidence sufficient to sustain the verdict. As the defense does not present its case until the prosecution has presented its case in chief and survived a motion for judgment of acquittal the frequency of that working would be extremely low. It would seem  that in the vast majority of cases the argument that the jury would have convicted in the absence of the false testimony and thus no causation exists would be nearly impossible to rebut.

      The same general pinciple would apply in a claim to set aside or vacate a judgment in a habeas action. the prejudice prong of the Strickland test would be very difficult to satisfy.

      Also, you might frequently have  "clean hands" issues. I'd go out on a limb and state that the large majority of false testimony in defense cases comes out of the mouth of defendants and the argument that I lost my case because my lawyer told me to/allowed me to lie isn't likely to be viewed with favor. In cases where other witnesses provide false testimony, it likely would be the case that the defendant had a hand in procuring it in a large number of cases as well. That presents estoppel, contributor/comparative fault/ assumption of risk, etc. issues.

      Therefore, most of the actions against defense lawyers accused of suborning perjury, etc. are going to be disciplinary proceedings or crimnal cases because the only party with standing to sue the lawyer for such misconduct (the client) probably won't have a very good case very often, but it is possible for it to occur.



    i would offer up (none / 0) (#11)
    by cpinva on Tue Apr 21, 2009 at 12:18:52 AM EST
    that we, the citizens who comprise the "state" are also entitled to a fair trial, under the constitution.

    in order for both parties to receive a fair trial, all parties need to abide by the rules set forth. this includes the prosecution, defense, the jury and the judge. when any one of the knowingly violates the rules, it taints the entire proceedings.

    if the rules are meaningless, and not being enforced, why bother having them? surely, there's a better use for those dead trees.