Prosecutors trying to put you in prison for a crime you didn’t commit can fabricate evidence, coerce witnesses into lying on the stand, and enjoy absolute immunity. They cannot go to prison. They cannot even be sued. They aren’t even likely to get so much as a reprimand from the bar association or from their bosses, even after publicly admitting to framing you.
So argued an attorney for Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, Iowa, who argued in front of the U.S. Supreme Court Wednesday in their case, Pottawattamie County v. McGhee, that they were entitled to absolute immunity for their roles in knowingly putting two teenagers in prison for murder.
In 1977, the two prosecutors coerced Kevin Hughes into lying on the stand, telling him what to say, in order to obtain convictions against Curtis W. McGhee Jr. and Terry J. Harrington, both 16 at the time. The two would spend 25 years in prison for the murder of a retired police officer who was working as a security guard in Council Bluffs, despite the facts that Hughes changed his story several times before trial and that prosecutors also let a more likely suspect in the case get away and covered it up. Their convictions were finally overturned in 2003 by the Iowa Supreme Court, which found that Hughes had committed perjury.
The courts have held that prosecutors enjoy absolute immunity under the common law for any actions they take at trial, though only qualified immunity when they perform police functions such as investigating crimes and gathering evidence. Stephen S. Sanders, the attorney for the prosecutors, argued that since they used the fabricated evidence at trial, they should be covered by absolute immunity.
Justice Anthony M. Kennedy, who is often the swing vote in cases concerning the scope of the Constitution’s due process clause, appeared troubled by the distinction.
“So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune?” Justice Kennedy said. “That’s a strange proposition.”
Neal K. Katyal, a deputy solicitor general, argued for the federal government in support of the state prosecutors. Mr. Katyal said that even in the case of police officers, they could be sued only if they had duped prosecutors into using fake evidence. There is no constitutional violation, he said, if the police and the prosecution are acting in concert, because the prosecutors’ absolute immunity would apply to the police as well.
“Again,” Justice Kennedy said, “the more aggravated the tort, the greater the immunity.” — New York Times
An amicus brief filed with the court by the Cato Institute, the National Association of Criminal Defense Lawyers and the American Civil Liberties Union presents years of research showing that prosecutors almost never suffer any sort of sanctions when they engage in misconduct, even “egregious” misconduct such as knowingly prosecuting innocent people, and that even with compensation laws recently enacted in some states, it’s nearly impossible for victims of prosecutorial misconduct to recover any damages.
I’m not sure what’s more disturbing, the fact that prosecutors routinely get away with framing people or the fact that the government wants to keep it that way. The federal government, 27 states, and several intergovernmental associations all filed briefs in support of the prosecutors.
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KBCraig
Nov 05, 2009
Good to see you back, Michael. This is one of your best columns. I think the lack of media coverage is mostly owing to the fact that it’s too outrageous to be believable.
Sometimes truth is more bizarre than fiction could ever be. (And this isn’t even Maricopa County!)
Michael Hampton
Nov 05, 2009
If you liked the story, please share it. Facebook, Twitter, Digg, old-fashioned email, wherever.
Highlander
Nov 05, 2009
Deprivation of rights under color of law
“WHOEVER, under color of any law, statute, ordinance, regulation, or custom, willfully subjects ANY person in ANY State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the CONSTITUTION or LAWS of the UNITED STATES, OR to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
- U.S. CODE: TITLE 18> PART I> CHAPTER 13> § 242
Michael Hampton
Nov 05, 2009
That is one of the laws which supposedly protect the people from rogue government agents. Good luck finding a U.S. attorney who will prosecute under it.
This case is about the circumstances in which prosecutors enjoy “absolute immunity” from the law: In this case 42 USC 1983, the Civil Rights Act of 1871.
In most circumstances, government agents enjoy only “qualified immunity” which means they can still be prosecuted if you can clearly define the specific right violated and a reasonable government agent could not believe that the government agent in question acted lawfully. It’s a fairly high bar. Absolute immunity basically means what it sounds like: you’re screwed.
Highlander
Nov 05, 2009
So-called ‘absolute immunity’ doesn’t stop bullets or arrows.
Nov 06, 2009
Links 06/11/2009: Great Mandriva 2010.0 Reviews; Thunderbird 3 RC Comes Soon | Boycott Novell
Jeff Hoyt
Nov 07, 2009
It’s on it’s way to my Facebook page in a few moments, Michael.
I agree with KBC and, specifically, Highlander’s brief assertion.
Joe Banana
Dec 12, 2009
This is completely unacceptable. No one is “immune to the law”, as in, “no one is above the law” the law is the law, period. Nobody can be “immune” because, nobody has the power to grant it, nobody. As in “inalienable rights”, they can’t even be given away.
Joe Banana
Dec 12, 2009
And the quote “and since they used fabricated evidence at the trial, they should be covered by absolute immunity”. That’s the most absurd thing I’ve ever heard. This would mean a prosecutor could just walk up to a defendant pull out a chunk of hair and say “it was found at the crime scene”. How is that a “fair” trial?
Anonymous
Apr 22, 2010
what we need is a goverment program that will step in to govern the efforts of the state and law to hold them accountable . who is worse the guy who hits his kid or the goverment who lies and locks up people that have done nothing wrong?
if we locked up every goverment offical that lies under oath or breaks protocall to hurt some one in any way we will only have a handfull of people left in office !!!! what happend the : for the people by the people
Jesse Thomas
Nov 01, 2010
There is absolutely something to be said for the complete abolition of government. This would never happen in a completely free market economy. Here we have a juristicational monopoly of government slugs who, because they have firepower and men with robes, that they are above justice and can do no wrong.
You all should really rid yourselves of the religion of government.
joebanana
Nov 01, 2010
I like that idea, but it’s gone beyond government, it’s a terrorist organization now. One big sick joke, look at obama giving himself the power to have American’s assassinated. Look at all the innocent civilians the US government has killed since 911, it’s genocide, not a “war”, and all based on lies.