NPR: Can Prosecutors Be Sued By People They Framed?

Do prosecutors have total immunity from lawsuits for anything they do, including framing someone for murder? That is the question the justices of the Supreme Court face Wednesday.

On one side of the case being argued are Iowa prosecutors who contend "there is no freestanding right not to be framed." They are backed by the Obama administration, 28 states and every major prosecutors organization in the country.

On the other side are two black men — Terry Harrington and Curtis McGhee — men who served 25 years in prison before evidence long hidden in police files resulted in them being freed.

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Total Immunity?

But even after 25 years in prison, Harrington never gave up. In 2003, armed with the newly disclosed police records, he petitioned the Iowa Supreme Court, which overturned his conviction as well as McGhee's, and concluded that the star witness was a "liar and perjurer." Since then, all the witnesses have recanted.

McGhee, Harrington's co-defendant, agreed to a plea deal in exchange for time served. Harrington refused any deal, and prosecutors dropped all charges against him. Under Iowa law, for all practical purposes, there is no way for the men to recover compensation for their 25 years of hard time. So they sued the prosecutors and the police under a federal civil rights law for violation of their constitutional rights.

The Council Bluffs prosecution team, while still maintaining that Harrington and McGhee are guilty, contends that even if the men were in fact framed, prosecutors, under established Supreme Court precedent, have total immunity from being sued.

The Supreme Court has indeed said that prosecutors are immune from suit for anything they do at trial. But in this case, Harrington and McGhee maintain that before anyone being charged, prosecutors gathered evidence alongside police, interviewed witnesses and knew the testimony they were assembling was false.

The prosecutors counter that there is "no freestanding constitutional right not to be framed." Stephen Sanders, the lawyer for the prosecutors, will tell the Supreme Court on Wednesday that there is no way to separate evidence gathered before trial from the trial itself. Even if a prosecutor files charges against a person knowing that there is no evidence of his guilt, says Sanders, "that's an absolutely immunized activity."

Whatever constitutional wrongs were suffered by Harrington and McGhee, he says, they were the result of their conviction at trial, not the investigation that preceded the trial. Without the trial, he contends, Harrington and McGhee "are simply unable to point to any deprivation of liberty that they suffered from the fabrication itself."

So our government and the Obama administration is actually arguing that there is no punishment for effectively kidnapping, and unlawfully imprisoning two men for a quarter century. That it is more important to protect prosecutors as government employees from the consequences of their actions than it is to see justice performed.

When we even have to ask if we have a right to not be deprived of our freedom what is the point of a government that was supposedly founded to protect our liberty? If the government can't live up to that one simple requirement is there any reason to keep it? Should we not be discussing replacing it with something that can and will protect our rights?

Stuff like this makes me wonder if we haven't gone past the point that peaceful protest will achieve anything. How far does the government have to go for any act of violence against it to be seen not as a first strike but rather as a preemptive defense?

When is enough, enough? Where is the line?

Tags: court, justice, misconduct, prosecutorial, supreme

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Permalink Reply by Gangster on November 4, 2009 at 4:44pm

I hate lawyers- but even more I hate prosecutors. When you are evaluated on your ability to convict I'm sure it's easy to not care about "justice".

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Permalink Reply by Traveling Zach on November 5, 2009 at 10:28am

I actually find this story even more disturbing, i'm gonna post the link so you can listen to it, but here's also Amy's introduction so you get the jist of what its about... pretty much the same line though...

AMY GOODMAN: On Monday, a federal court of appeals dismissed Canadian citizen Maher Arar’s case against US officials for their role in sending him to Syria to be tortured. The Second Circuit Court of Appeals ruled that victims of extraordinary rendition cannot sue Washington for torture suffered overseas, because Congress has not authorized such lawsuits.

In 2002, Syrian-born Maher Arar was held in New York on his way back to Canada from a family vacation in Tunisia. A subsequent Canadian public inquiry has shown Arar was held on erroneous advice from Canadian officials who accused him of ties to Islamic militants. US authorities then flew Arar to Syria, where he was imprisoned and tortured for a year. Canadian authorities exonerated Arar in 2007, apologized for their role in his torture, and awarded him a multi-million-dollar settlement.

Following Monday’s 7-to-4 verdict, Maher Arar said, quote, “this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law,” he said.

In his dissent, Judge Guido Calabresi wrote, quote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

For more on this case, I’m joined here in our firehouse studio by Maher Arar’s attorney Maria LaHood. She’s a senior staff attorney at the Center for Constitutional Rights.

rest of story

where is the line is a question i have to ask myself all the time...