How Broad Is Prosecutorial Immunity?
Tomorrow at 10 a.m., the Court will hear oral argument in Pottawattamie County v. McGhee (08-1065). Briefs and other filings in the case are available at the case page on SCOTUSwiki. [Disclosure: Amy Howe of Howe & Russell and Tom Goldstein of Akin Gump filed amicus briefs in support of petitioners at both the cert. and merits stages. However, the author of this post was not employed at Howe & Russell when those briefs were filed, nor was she involved in the briefs in any other way.]
Prosecutors are normally immune from suit for their official actions during a trial. Tomorrow, in Pottawattamie County v. McGhee, the Court will consider whether that immunity extends to actions taken in preparation for trial. The stakes in this technical question are high because the prosecutors' actions at issue in the case resulted in two men "“ the respondents here "“ being incarcerated for twenty-five years based on falsified evidence.
In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison. Twenty-five years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense. The Iowa Supreme Court vacated Harrington's sentence, and McGhee pleaded guilty to a lesser charge in exchange for time served. Both prisoners were freed.
After their release, McGhee and Harrington sued the prosecutors and the county officers under 42 U.S.C. § 1983. The district court ruled that the prosecutors could be held liable for violating McGhee and Harrington's substantive due process rights, and the Eighth Circuit affirmed that conclusion.
Amy Howe has previously written on the certiorari"‘stage briefs in the case at SCOTUSwiki; you can read her discussion here.
The two main issues discussed by both parties in their merits briefs are, first, whether the respondents McGhee and Harrington can establish a constitutional violation by the Pottawattamie County prosecutors; and, second, whether the prosecutors have immunity from suit under § 1983 for such a violation.
In 1976, the Supreme Court held in Imbler v. Pachtman that prosecutors have absolute immunity from liability for their official actions during trial. That conclusion rested largely on policy reasons: the Court emphasized that prosecutors must be able to pursue criminals with "courage and independence," and without worrying about the threat of lawsuits. Thus, the parties agree that prosecutors such as petitioners enjoy immunity when they knowingly introduce false testimony during trial. However, they disagree about whether Imbler's rule extends to actions that are taken before trial but are directly connected to the trial.
In their brief on the merits, the prosecutors characterize the substantive due process claim raised by McGhee and Harrington as a "right not to be framed" "“ a right, they emphasize, that the Court has never recognized. In their view, any violation of a constitutional right requires a deprivation of liberty, not merely an intent to deprive someone of liberty. Therefore, a prosecutor's fabrication of testimony cannot violate the Constitution until the perjury is presented at trial and is instrumental in securing a conviction.
The prosecutors next argue that they have absolute immunity for any conduct directly connected to a trial. Liability under § 1983, they contend, is determined using the "functional test" outlined by the Court in 1993 in Buckley v. Fitzsimmons, pursuant to which a prosecutor is immune for acts that are "intimately associated with the judicial phase of the criminal process." Because investigations and evidence preparation yield the materials presented during trial, they are "intimately associated" with the judicial phase, and McGhee and Harrington lack a cause of action under § 1983.
The prosecutors also contend that the same policy rationales underlying the Imbler rule for trial conduct apply fully at the pre-trial stage. Even honest prosecutors are less likely to participate fully in investigations if they fear liability for investigatory actions and decisions. Furthermore, the creation of new grounds for prosecutor liability based on pre-trial acts would open a "floodgate" of meritless claims and effectively annul absolute immunity, as prosecutors could face wrongful conviction suits as long as a plaintiff is "clever enough to include [in his allegation] some actions taken by the prosecutor prior to the initiation of prosecution."
Represented at the merits stage by former Solicitor General Paul Clement, respondents McGhee and Harrington reiterate "“ as they did in their brief in opposition "“ that the fabrication of perjured testimony against them violated their substantive due process rights to a fair trial. On their interpretation, prosecutorial misconduct that is "so ill-motivated as to shock the conscience" violates substantive due process whenever it occurs. In this case, the prosecutors' intent to use the perjured testimony at trial, regardless whether they ever presented it, demonstrates that they were in fact "ill-motivated."
McGhee and Harrington dispute the prosecutors' contention that Imbler immunity extends to pre-trial investigation and preparation. Allowing immunity for trial acts to "wash back" to absolve prior wrongdoing would, they contend, encourage malicious prosecutors to use falsified evidence in court to shield themselves from suit for its procurement. They criticize the inconsistencies that would result from the prosecutors' construction of the "functional test," pursuant to which police officers "“ but not prosecutors "“ could be held liable for falsifying evidence during an investigation. Immunity should attach to types of conduct, they posit, rather than to particular officeholders.
Like the prosecutors, McGhee and Harrington argue that Buckley is significant, but for a different reason: although the Court in Buckley held that prosecutors have "absolute immunity" for conduct that "occurs in the course of [the prosecutor's] role as an advocate for the State," it also made clear that prosecutors have only "qualified immunity" for certain investigative acts. Contrary to what the prosecutors contend, however, procuring testimony is not conduct that occurs in the course of the prosecutor's role as advocate.
Countering the petitioners' "floodgate" argument, McGhee and Harrington argue that their case is "egregious, exceptional, and remarkably well-documented." This is not a case in which prosecutors merely chose to believe a debatable story or failed to reveal exculpatory evidence; rather, they actively fabricated evidence. If the Court adopts a "strict approach" to prosecutorial misconduct claims that focuses on the substance of the claims rather than their "conclusions or labels," trial courts will be able to easily weed out meritless claims at an early stage.