Can a prosecutor be held liable under Section 1983 for a wrongful conviction and incarceration stemming from the prosecutor's procurement of false testimony during the investigation of a crime and the subsequent use of that testimony at the trial itself? Yesterday the Court agreed to consider this question in No. 08-1065, Pottawattamie County, Iowa v. Harrington. (Disclosure: Along with Tom Goldstein, I served as counsel on an amicus brief filed at the cert. stage on behalf of the National Association of Assistant U.S. Attorneys and the National District Attorneys Association.)

The case stems from the 1978 murder convictions of respondents Terry Harrington and Curtis McGhee. In 2003, the Iowa Supreme Court vacated Harrington's conviction after finding that prosecutors had failed to disclose exculpatory evidence; McGhee entered an Alford plea to second-degree murder and was sentenced to the time already served in prison. The two men then filed a Section 1983 action against the prosecutors who convicted them, arguing that prosecutors had "“ among other things "“ coerced false testimony before trial and then used that testimony at trial. The prosecutors argued that they were entitled to immunity, but both lower courts rejected that claim. Instead, the Eighth Circuit held, the prosecutors' procurement of false testimony violated respondents' right to substantive due process; moreover, prosecutors were not entitled to immunity for that violation "where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial."

The prosecutors filed a cert. petition in which they first argued that the Eighth Circuit's decision conflicts with a decision of the Seventh Circuit holding both that the procurement of false testimony does not violate the Constitution and that the prosecutor is entitled to absolute immunity for the use of such false testimony. Second, the decision below conflicts with Supreme Court precedent, both generally and with regard to the Court's "function test" for prosecutorial immunity. The prosecutors reason that respondents' claims against them derive only from the use of the testimony against them "“ a stage at which they "plainly were functioning as "advocate[s] for the State'" and their conduct was covered by absolute immunity. "Thus," they conclude, "there is no basis for any liability stemming from the alleged false testimony."

Respondents Harrington and McGhee made similar arguments in their respective briefs in opposition. Both respondents disputed the prosecutors' claim of a circuit split, emphasizing that in the Seventh Circuit case on which the prosecutors rely, one group of prosecutors coerced false testimony while another group used that testimony at trial. Contrary to petitioners' characterization, they contend that the Eighth Circuit properly applied the functional approach in determining whether petitioners were entitled to immunity: "Absolute immunity does not apply to prosecutors' actions taken outside the advocatory functions." Respondent McGhee added that relief should be available under Section 1983 in cases such as this one to deter prosecutorial misconduct: otherwise, "[p]rosecutors would be free to fabricate evidence during criminal investigations because they would know there was virtually no possibility of ever being punished for it."

Posted in Pottawattamie County v. McGhee, Uncategorized