The Prosecutor’s Impunity: Part I

By Halina Schiffman-Shilo

“There is no freestanding Constitutional ‘right not to be framed.’” This was the position of prosecutors in Iowa, and the federal government, in the 2009 Supreme Court case, Pottawattamie County v. McGhee and Harrington.

In 1978, Iowa prosecutors framed two black teenagers for the murder of a retired white police officer. The teens were locked up for 25 years until an Iowa court overturned their convictions, finding that the prosecutor had, among other things, suppressed evidence (a Brady violation), which pointed to a white man as the murderer. The two men sued Iowa prosecutors under federal law, 42 U.S.C 1983, alleging the prosecutors had breached their constitutional rights to due process. Both the U.S. District Court for the Southern District of Iowa, where the two men started the lawsuit, and Eighth Circuit Court of Appeals held that the prosecutors were not entitled to qualified immunity (prosecutorial immunity),  because they had engaged in misconduct prior to even filing formal charges. (Had they suppressed evidence and coerced witnesses after filing the formal charges, we’d be having a different conversation). Without qualified immunity, the prosecutors could have been found liable for denying Mr. McGhee and Mr. Harrington their constitutional rights. So they appealed. And the U.S. Supreme Court agreed to review the case.

The Court’s justices pressed both sides during oral arguments to discuss the boundaries of prosecutorial immunity. As NPR’s Nina Totenberg reported, the debate became heated with no clear indication of which way the judges were going to decide. And then the case was dismissed and settled out of court. If only the case hadn’t settled…

First enacted in the aftermath of the Civil War as part of the 1871 Civil Rights Act, 42 U.S.C. 1983 gives a US citizen or person under US jurisdiction the ability to sue anyone, who, acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,” has deprived him or her of “rights, privileges, or immunities” protected by the U.S. Constitution or other laws.  But, and here’s the key, the law goes on to indemnify a “judicial officer for an act or omission taken in such officer’s judicial capacity.”

In the 1976 Supreme Court case, Imbler v. Pachtman, the Court was called on to decide if Paul Imbler, who was wrongly convicted of murder because of prosecutorial misconduct, could sue the prosecutor.

As it turned out, he could not.

The Court looked to common law history, originating in England, which protects judges and legislators from civil suit if they are acting in their official capacity, and found that Section 1983 carried on this common law tradition. The Court held that as long as prosecutors acted within their official prosecutorial capacity, victims of prosecutorial misconduct could not seek civil remedies against them. The Court also discussed public policy considerations and determined it was far better to have prosecutors who could vigorously and thoroughly prosecute cases free from fear of civil reprisals than to have hamstrung prosecutors.

Recently, however, a few cases have emerged that seem to challenge this broad immunity. For example, in the 1991 Supreme Court case Burns v. Reed, the Court ruled that prosecutors were immune from liability for misconduct during the investigative phase of a case, but not during the judicial phase of the case, when a prosecutor prepares the case against the specific defendant, or defendants, for trial.

Yet, in the 2011 Supreme Court case Connick v. Thompson, the Court held steadfastly, and meanly, as one Slate reporter put it, to prosecutorial immunity. John Thompson, wrongly convicted of armed robbery and murder and sentenced to death, sued the New Orleans District Attorney’s office for withholding an exculpatory crime lab report from the defense. (In case you’re wondering, the report surfaced just one month prior to Mr. Thompson’s scheduled execution date.) The Court dismissed Mr. Thompson’s lawsuit against the District Attorney’s office, and the prosecutor, New Orleans District Attorney Harry Connick Sr., got off scot-free. Mr. Thompson served 18 years in prison for crimes he did not commit.

More recently, in a major coup for proponents of prosecutorial accountability, a special court of inquiry in Texas determined that former Texas prosecutor, and current Texas state judge, Ken Anderson, could face charges of criminal contempt for suppressing crucial evidence in a grisly murder case over two decades old. While the penalty for criminal contempt in Texas is mild, a maximum $500 fine and six months in jail, a pittance when compared to the almost 25 years the alleged murderer spent behind bars, it is at least a start.

And there is also, as we’ve previously reported, the case of Jabbar Collins, who was wrongly convicted of murder and spent years in prison before his release. Mr. Collins sued two police officers, prosecutors from the Brooklyn District Attorney’s Office, Brooklyn’s District Attorney Charles J. Hynes, and a few city agencies for misconduct for $150 million. Though a federal judge dismissed Mr. Collins’ claims against the prosecutors and police officers, he allowed Mr. Collins to sue District Attorney Hynes for being “deliberately indifferent” to the misconduct that the subordinate prosecutors committed. And in June, the federal judge presiding over Mr. Collins’ case ordered that District Attorney Hynes, and his top prosecutor Michael Vecchione, be deposed. The deposition was slated for late October, but has since been postponed (most likely until after New York City’s general election on November 5). If this lawsuit succeeds, it could provide victims of prosecutorial misconduct an avenue for redress and become an effective tool to hold prosecutors accountable for their indiscretions.

A coda: The Pottawattamie case, in which the Iowa District Attorneys argued there was no constitutional right not to be framed, settled for $12 million.  That may, at first, seem like a victory against prosecutorial misconduct, but when you think about it, the sum is all the two men were paid for spending 25 years in prison for crimes they did not commit.

How much is your freedom worth?


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