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Wednesday, January 06, 2010

Prosecutorial immunity case settled

The Supreme Court has dismissed the appeal in Pottawattamie County v. McGhee following the settlement case for more than $ 12 million. (H/T: SCOTUSBlog). The appeal, argued last fall, considered the scope of absolute prosecutorial immunity against allegations (by two actually innocent men who spent 25+ years in prison) of fabricating evidence and coercing witnesses prior to bringing charges or presenting the State's case in court. The lower courts held that these were not "prosecutorial" functions, thus the prosecutors were not entitled to absolute immunity.

At some level, this is a good illustration of Owen Fiss' argument that settlement in public-law litigation is not necessarily a good thing, because we lose out on judicial pronouncements and development of constitutional law and constitutional values. This case could have been significant in determining whether § 1983 could provide an effective civil remedy against prosecutors in cases of wrongful conviction. It also could have affected the ongoing § 1983 lawsuits arising from the Duke lacrosse case, which remain an ongoing interest. But the decision of the parties to settle deprives the Court of this opportunity to pronounce on these issues, at least until the next case comes along.

Questioning at oral argument focused heavily on the question of whether the prosecutor's out-of-court misconduct gained the cloak of immunity once the prosecutor presented the case/arguments/evidence within the formal judicial process. The subsidiary issue (that may have been resolved in the case) is when certain constitutional injuries occur. Does a prosecutor violate someone's due process rights by fabricating evidence or only by using fabricated evidence in court. If the latter, prosecutors become functionally untouchable--if they coerce witnesses but never use the evidence, no violation has occurred and if they use the evidence they are immune. The answer to this question also implicates police liability in wrongful-conviction cases. If fabricating evidence is not a violation until the evidence is used, police officers also would not be liable if the evidence were not used or the case did not move forward. And if the evidence is used in court, police could argue that the constitutional violation was not the fabrication of the evidence but its use, which they did control and thus did not cause.

This does mean I can use Pottawattamie as an oral-argument case on prosecutorial immunity the next time I teach Civil Rights.

Posted by Howard Wasserman on January 6, 2010 at 09:10 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink


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Indeed, so shopworn and tawdry is the shield dragged out to defend prosecutorial abuse, that oral arguments before the Court included the assertion that the Constitution does not give a defendant a right not to be framed.

This is reminiscent of the judge who testified on behalf of Nifong that lying in court was acceptable so long as a case was only in a pre-trial hearing stage and the actual trial hadn't yet begun.

Unfortunately, one has to fear that with so much at stake, the defenders of prosecutorial immunity will permit the taxpayers to "bear any burden, pay any price"
to assure that civil cases involving this issue never reach SCOTUS for decision.

(Hence, perhaps for reform we will have to repair to the legislatures.)

R. B. Parrish
(Author, "The Duke Lacrosse Case: A Documentary History and Analysis of the Modern Scottsboro")

Posted by: Parrish | Jan 7, 2010 9:46:33 AM

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