Court Refuses to 'Bless a Breathtaking Injustice'

     CHICAGO (CN) - A prosecutor accused of coercing false testimony that put a man on death row for 17 years is not entitled to immunity, the 7th Circuit ruled.
     In 1986, street-gang member Nathson Fields was convicted of two murders and sentenced to death. He was granted a new trial in 1996 in light of evidence that the trial judge, Thomas Maloney, had accepted a $10,000 bribe from Fields' co-defendant, Earl Hawkins, for his own acquittal.
     Hawkins was nonetheless convicted, and Maloney returned the money when he learned that he was under federal investigation, according to the ruling.
     The second jury acquitted Fields after various witnesses recanted their testimony, including a former gang member who confessed that his 1991 testimony implicating Fields in the murders was false.
     Fields then sued two prosecutors on his case, Lawrence Wharrie and David Kelley, claiming they coerced witnesses to falsely testify against him, leading to his 17-year wrongful imprisonment.
     He said Wharrie, in particular, coerced false statements from a witness even before Fields was arrested in June 1985, and then later used these false statements as a prosecutor at trial.
     The district court initially granted the prosecutors immunity, but on reconsideration found that Wharrie is not shielded by qualified immunity for his investigative role in Fields' case.
     Wharrie appealed, and a three-judge panel of the 7th Circuit upheld the ruling last week on a 2-1 vote.
     While presenting evidence at trial is protected by prosecutorial immunity, that immunity does not protect a prosecutor's actions outside of his core prosecutorial functions, the panel said.
     "Wharrie is asking us to bless a breathtaking injustice," Judge Richard Posner wrote for the court's majority. "Prosecutor, acting pre-prosecution as an investigator, fabricates evidence and introduces the fabricated evidence at trial. The innocent victim of the fabrication is prosecuted and convicted and sent to prison for 17 years. On Wharrie's interpretation of our decision in Buckley [v. Fitzsimmons], the prosecutor is insulated from liability because his fabrication did not cause the defendant's conviction, and by the time that same prosecutor got around to violating the defendant's right he was absolutely immunized."
     Wharrie's reading of the law would leave victims of "grave misconduct (because coercion does not always result in fabrication of evidence - even torture must often elicit truthful confessions) completely unprotected," the 14-page ruling states. (Parentheses in original.)
     Posner called this interpretation "offensive and indeed senseless."
     He emphasized part of the Supreme Court's 1993 decision in Buckley, which was then remanded to the 7th Circuit: "A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as 'preparation' for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial."
     However, because Kelley was functioning in his prosecutorial role when he allegedly procured false testimony before Fields' retrial, he is protected by immunity, the court added.
     Dissenting Judge Diane Sykes said the 7th Circuit's ruling in Whitlock v. Brueggeman, issued three months after the Fields decision, "unsettled" Buckley and, by extension, the first Fields ruling.
     "Whitlock drew a distinction, for qualified-immunity purposes, between a prosecutor who coercively interrogates witnesses and a prosecutor who fabricates evidence," Sykes wrote. The former prosecutor may be entitled to qualified immunity while the latter would not, according to Whitlock.
     But Whitlock and Buckley are "factually indistinguishable and legally irreconcilable," Sykes said, and "cannot both be the law."
     "We must decide which one is correct," she wrote.