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Can prosecutors be sued for pre-trial conduct?

WASHINGTON – The U.S. Supreme Court heard oral arguments Wednesday in a case that will help clarify just what conduct by criminal prosecutors is shielded from civil liability.

The case, Pottawattamie County v. McGhee, involves the murder convictions of Curtis McGhee, Jr. and Terry Harrington in connection with the shooting death of a car dealership security guard. The men were sentenced to life in prison.

A friend of Harrington investigated the crime and discovered that two county attorneys had failed to disclose that another suspect, who matched the description given by a nearby witness, was questioned in connection with the murder.

It was also revealed that the witness whose testimony prosecutors largely relied upon had given conflicting accounts of what happened, and was promised a reward for testifying against the defendants.

The Iowa Supreme Court vacated the convictions, finding that prosecutors had failed to disclose key exculpatory evidence.

Both men brought §1983 civil claims against the county and the former prosecutors, arguing they used unconstitutionally perjured and fabricated testimony and withheld evidence.

A district court denied the prosecutors’ claims of immunity.

They filed an interlocutory appeal, but the 8th Circuit found that prosecutors are not protected by immunity for actions they undertake before formal charges are filed, because that conduct does not fall within their prosecutorial duties.

The prosecutors sought and were granted review by the Supreme Court.

Difficulty drawing the line

At oral arguments, Stephen Sanders, an associate at the Chicago office of Mayer Brown, represented the former prosecutors. He argued that defendants cannot lift the protections of civil immunity just because a conviction occurred.

“A prosecutor may not be sued because a trial has ended in a conviction, yet that is exactly what happened in this case,” Sanders said.

“Your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons,” said Justice Anthony Kennedy, referring to a 1993 decision where the Court found that prosecutors acting as crime investigators were not entitled to immunity. “I mean, we were just spinning our wheels in that case?”

“I think that this case presents exactly the question that Buckley reserved,” replied Sanders, “and that is whether the fabrication of evidence by a prosecutor in and of itself, without regard to its use in some way, states a constitutional cause of action.”

But some justices found it difficult to draw the line between prosecutorial actions that fall inside and outside the limits of immunity.

Justices Ruth Bader Ginsburg asked if police officers and prosecutors who did not bring the case to trial but procured the false evidence during the investigation would be immune from suit.

Sanders said they wouldn’t unless they prosecuted the case at trial.

“So the law is the more deeply you’re involved in the wrong, the more likely you are to be immune?” Kennedy asked. “That’s a strange proposition.”

Paul Clement, former solicitor general who is now a partner in the Washington, D.C., office of King & Spalding, said the case fell squarely within the holding of Buckley.

“It’s exactly the theory of immunity that the 7th Circuit adopted in the Buckley decision and this Court reversed, unanimously,” Clement said.  ”If that sounds familiar, it should.”

Clement said there was no reason to distinguish between prosecutors who only procure false information in the investigatory stage and those who take the evidence all the way to a jury.

“I can’t think of a single reason why the only reason a prosecutor would get absolute immunity is [that] they not only participated in the pretrial misconduct, but completed the scheme by committing further misconduct at trial,” he said.

A decision from the Court is expected later this term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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