High Court Considers Prosecutorial Immunity

(CN) - The U.S. Supreme Court heard arguments Wednesday on whether prosecutors who use false testimony should be liable for a wrongful conviction. "This case sits near the intersection of a pair of well-settled issues," federal defenders from Georgia wrote in a case analysis distributed by the Supreme Court.

They said prosecutors who unwittingly use false testimony during a trial are absolutely immune, though such testimony should never knowingly be used.

"In the middle are cases in which an individual commits pre-arrest investigatory misconduct, and then that same individual employs the fruit of that misconduct in a judicial proceeding," Cynthia Roseberry and Morad Fakhimi wrote.

Paul Clement, with King & Spalding, argued on behalf of two men, Curtis McGhee and Terry Harrington, who were convicted and then cleared of murder. He said the prosecutors don't have absolute immunity, referencing past cases where immunity for pretrial investigatory conduct was rejected.

Stephen Sanders, with Mayer Brown, represented investigators and prosecutors, and Pottawattamie County, Iowa. He argued that the false testimony does not cause injury by itself, and only its use in court can cause injury. Because the injury can only be inflicted during the trial, while the prosecutor is immune, there should be no liability for the pre-trial fabrication, he said.

"Your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons," Justice Anthony Kennedy said. "I mean, we were just spinning our wheels in that case?"

In Buckley, the court denied absolute immunity to a prosecutor who played a role in fabricating evidence against a suspect during an investigation, and who made false statements about a suspect during a news conference.

Sanders argued that the ruling still holds, but added that this case addresses the issue that Buckley left open: whether fabrication of evidence by a prosecutor in and of itself can be challenged.

Kennedy asked whether immunity would apply to a prosecutor who procures false testimony, but who then hands the case off to another prosecutor to begin the case.

Sanders replied that the initial prosecutor would be exposed because, having not played a prosecutorial role in the case, he would have no immunity when the evidence was used in 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."

Justice Sonia Sotomayor asked why a prosecutor who fabricates false testimony and takes the case to trial would not be held responsible for the initial fabrication if in the analogy with two prosecutors, the first prosecutor would be liable.

"But that makes no sense, Sotomayor said in another argument, "because if you go down that road, then what you're saying is that neither a police officer nor a different prosecutor who fabricated evidence could be liable either because the only person who causes the deprivation is the prosecutor who uses the false evidence at trial.

"Do you really want to send a message to police officers that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?" Sotomayor continued.

Justice Ruth Bader Ginsburg attacked the argument from another angle. "Was there no injury in the period before?" she asked. "Let's leave out the trial for a moment. There was a deprivation of liberty during the investigatory stage."

Clement, who argued on behalf of the convicted men, faced concerns from justices that prosecutors would be restricted in their work if his interpretation were adopted.

"Where's the line to be drawn between the investigative stage and the prosecutorial stage?" Justice Samuel Alito asked.

Clement replied that the line is drawn when investigators are trying to determine the suspect and when they are shaping the suspect for trial.

"What concerns me about your argument, Alito said, "is a real fear that it will eviscerate Imbler."

In Imbler v. Pachtman, the Supreme Court ruled that prosecutors have absolute immunity for actions undertaken while preparing for, or during, a trial. It ruled that prosecutors are not immune while not doing work directly related to the prosecution.

"We're concerned about the chilling effect on the prosecutors," Chief Justice John Roberts said.

Justice Antonin Scalia probed the differences between the two arguments. "So the argument is, 'What's the use of giving him liability later on if you can simply drag him into litigation by alleging that he at an earlier stage committed a violation?'" Scalia said of a prosecutor. "That's the crux of this."

Justice Stephen Breyer reflected similar qualms. "The concern I'd have is that this will discourage the prosecutors from becoming involved in the witness questioning process," he said. "And that is a very negative incentive, I would think."

After a car dealership security guard was shot and killed in 1977, attorneys Joseph Hrvol and David Richter relied heavily on the testimony of a 16-year-old criminal in prosecuting McGhee and Harrington.

The 16-year-old and two others had been stopped in stolen car. The boy denied stealing the car, and instead blamed Harrington and McGhee, adding that the men had stolen other cars from dealerships.

The detectives promised that the boy would not be charged with the guard's murder, that he would be helped with his other criminal charges, and that he could be eligible for $5,000 if he helped them with the murder investigation.

The boy agreed, but his story continued to change, he named the wrong kind of gun in the murder, and blamed people with solid alibis.

Later investigations found that prosecutors had not disclosed evidence favorable to the defendant, and Harrington's conviction was overturned. The county attorney's office agreed to file a motion to vacate McGhee's sentence.

The district court ruled that immunity applied for some but not all claims. The 8th Circuit also held that prosecutors are not entitled to absolute immunity.

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