Tag: Burns v. Reed

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…



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