HUFFINGTON
08.04.13
THE UNTOUCHABLES
prosecutorial immunity can get.
Prosecutors were found to have
fabricated evidence to help them
convict two innocent men, Terry
Harrington and Curtis McGhee,
who between them spent more
than 50 years in prison. Attorneys
for the prosecutors, along with the
Office of the Solicitor General and
several state attorneys general, argued they should be immune from
any liability. They said that while
the prosecutors may have been
acting as police investigators when
they fabricated the evidence, the
actual injury occurred only when
the jury wrongly convicted Harrington and McGhee. It followed
that because the prosecutors were
acting as prosecutors when the
injury occurred, they were still
shielded by absolute immunity.
Deputy Solicitor General Neal
Katyal even argued to the court
that there is no “free-standing due
process right not to be framed.”
During oral arguments in the
case, Justice Anthony Kennedy
summed up this defense less
than sympathetically: “The more
deeply you’re involved in the
wrong, the more likely you are
to be immune.” And there was at
least some indication during the
oral arguments that some jus-
tices were moving toward limiting
prosecutorial immunity.
But before the court could rule,
Pottawattamie County settled
with Harrington and McGhee. For
now, the question of whether a
prosecutor can be held personally
liable for knowingly manufacturing evidence to convict an innocent person remains unsettled.
John Thompson’s case dealt
with the issue of municipal liability. He couldn’t sue any of the
prosecutors personally, but in
theory, he could still go to federal
court to sue the city or county
where the prosecutors worked.
But simply being wronged by a
rogue prosecutor isn’t enough. He
would also have to show that employees of the government entity
he was suing routinely committed
similar civil rights violations; that
these violations were the result of
a policy, pattern or practice endorsed by the city or county; and
that the prosecutor’s actions were
a direct consequence of those policies and practices.
That’s a lot to prove, but municipal liability could bring some
justice to people wronged by a
flawed system. And if such lawsuits result in large awards, perhaps they could begin to apply
some political pressure to policymakers and public officials to
change their ways.