Supreme Court appears split on tackling rogue prosecutors

WASHINGTON — The US Supreme Court on Wednesday took up the difficult issue of what to do about unscrupulous prosecutors willing to induce false testimony and hide exculpatory evidence to convict innocent defendants.

At issue in Pottawattamie County v. McGhee is whether two men sent to prison for life are entitled to sue the local prosecutors in Iowa who helped arrange false testimony that led to their wrongful convictions.

Both men served 25 years in prison before being released after investigators discovered the false testimony and uncovered exculpatory evidence never disclosed to defense lawyers.

The high court has long recognized that prosecutors presenting a case at trial enjoy absolute immunity from citizen lawsuits seeking compensation for alleged violations of their constitutional rights.

But the court has also recognized that a prosecutor may not enjoy the protections of absolute immunity when serving not as a trial advocate but as an investigator searching for clues and corroboration that a crime has been committed.

During oral argument on Wednesday, the justices split into three camps. In one camp were Justices Ruth Bader Ginsburg, John Paul Stevens, and Sonia Sotomayor, who appeared primarily concerned with ensuring that victims of such prosecutorial misconduct have a potential remedy through a civil lawsuit.

In another camp were Chief Justice John Roberts and Justice Samuel Alito who appeared primarily concerned with the potentially “chilling impact” on all prosecutors if the court allowed some defendants to file such citizen lawsuits.

In the center were Justices Anthony Kennedy, Stephen Breyer, and Antonin Scalia who appeared to share the concerns of both other camps.

Deputy Solicitor General Neal Katyal, arguing in support of absolute immunity for the two prosecutors, said the government’s position was based on important societal concerns that prosecutors feel free to act as vigorous advocates.

“Absolute immunity doesn’t exist to protect a few bad apples,” Mr. Katyal said. If prosecutors know they may be sued by disgruntled defendants “they will flinch in the performance of their duties.”

Paul Clement, a former solicitor general arguing on behalf of the two wrongly-convicted defendants, said the federal appeals court in New York has allowed such citizen lawsuits against prosecutors since 2000. “There has not been a flood of these cases,” he said. “There has been a trickle.”

Mr. Clement said he had identified 17 cases brought since the 2000 appeals court action.

Chief Justice Roberts said his concerns went beyond just potential litigation. “We are concerned about the chilling effect on the prosecutors,” he said.

Stephen Sanders, a Chicago lawyer representing the two former prosecutors, urged the court to maintain an expansive application of absolute immunity for all prosecutors.

He warned that if the high court ruled for the two wrongly-convicted defendants, “it would work a radical change in the law of immunity.”

A decision in the case is expected by June 2010.

Comments (2)

  1. Submitted by Bruce Kvam on 11/05/2009 - 09:34 am.

    This is a thorny issue. The real question is whether these prosecutors have been charged with a crime, what sort of laws exist to deal with such crimes, and what sort of punishment is meted out to prosecutors who violate these laws. At a minimum they’re guilty of prosecutorial miscondunct, false imprisonment, soliciting perjury, etc. There should be no statute of limitations on such crimes, or at least the clock should start ticking when the crime is discovered and not when it was committed.

    In this particular case I don’t see any chilling effect. Regular Joes like these victims aren’t going to be able to mount a vigorous legal battle to intimidate prosecutors, especially before the fact.

    No, it’ll be guys like to OJ Simpson or similarly well-heeled high-profile criminals who will abuse the legal system to intimidate prosecutors who dare to go after wealthy offenders. They will file civil harassment lawsuits before they’re even charged with a crime as intimidation tactics against prosecutors who are just doing their jobs. The wealthy would be able to completely tie up prosecutors in civil court with nonsense. The rich would be able to buy their way out of jail by burying prosecutors in mountains of civil suit motions.

    As long as the state can be held responsible for the crimes of prosecutors who solicit perjury and withhold evidence, and the state can be compelled to compensate victims of such prosecutorial misconduct, I see no need for victims to go after the corrupt officials in civil court. Legislation may be in order to ensure that officials responsible for such awards be dismissed from public office and charged with crimes if the evidence warrants it.

  2. Submitted by Mark Gisleson on 11/05/2009 - 03:10 pm.

    So long as unscrupulous politicians become prosecutors for the purpose of inflating their name recognition and to make it easier to run for higher office, prosecutors should be subject to VERY high standards of accountability.

    Instead we have a system that rewards unscrupulous prosecutors by helping them to become governors and members of Congress.

    We don’t just need to hold prosecutors more accountable, we need a Constitutional amendment forbidding prosecutors and judges from running for higher office without first returning to the private sector for a “cooling off” period.

    Look at every bout of political excess in American history and you will find politicized prosecutors and judges fanning the flames of intolerance and persecution. Why? Because we we don’t hold them accountable.

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