The Limits(If Any) Of Prosecutorial Immunity

November 9, 2009

Call me biased, but this shouldn’t be a hard one to call.  Last week the U.S. Supreme Court heard oral arguments in the case of Pottawattamie County v. McGhee. Back in 1978, Terry Harrington and Curtis McGhee were convicted of murdering a retired Iowa policeman. The Iowa Supreme Court overturned that conviction in 2003, holding that the prosecutor had failed to disclose exculpatory evidence. The two men then sued the prosecutors, arguing that they coerced false testimony prior to the trial and then used that testimony at trial. The prosecutors claimed that they were entitled to full immunity, but the Eighth Circuit Court of Appeals didn’t agree.

During last weeks arguments the Supreme Court wrestled with the odd realities of the law as it seems to exist. There is no question that if police officers had been involved with coercing this testimony, they would be liable. There is also little doubt that a prosecutor who obtained false evidence and gave it to another prosecutor to use at trial would not have immunity. But, since in this case the prosecutors both created the false evidence and then used it at trial, full prosecutorial immunity would apply. As Justice Ginsburg put it, “It’s strange to say a prosecutor who wasn’t involved in the trial would have liability, but as long as the prosecutor turns the investigatory material over to himself, there’s absolute immunity.”

The Supreme Court has held in the past that prosecutors have absolute immunity.  In the Imbler case,  The Supreme Court granted prosecutors absolute immunity even if they knowingly used perjured testimony at trial, deliberately withheld exculpatory information, or failed to make a full disclosure of all facts casting doubt upon the state’s testimony.  See the ACS Blog for their take on all this.  In 2008, The high court reaffirmed this position in the case of  Van de Kamp v. Goldstein. See the Justice Denied blog for more on that case.

The main argument in favor of full prosecutorial immunity is that if such were not granted, there would be an unacceptable “chilling effect” upon prosecutions. What this means, I guess, is that prosecutors would be afraid to take tough cases to trial if they could be sued later for their actions.

Well, I don’t buy this argument, and I’m not alone. Read David DiSalvo’s recent article. First of all, there is a presumption of innocence in this country, and a person can be convicted only once a jury determines that there is evidence of guilt beyond a reasonable doubt. If there is a lack of evidence, the case should not be brought in the first place. Secondly, we are talking about prosecutorial acts in the McGhee case which are criminal, or should be. Prosecutors who act ethically will have no problems. Also, there seems to be little discussion of the competing constitutional claims of the defendant, such as due process and fair trial arguments. Finally, we live in a society where people face the “chilling effects” of a possible lawsuit on a daily basis. Doctors and their medical malpractice claims come immediately to mind.  Perhaps the threat of a lawsuit will help prosecutors to treat each case with the care it deserves.

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