Pottawattamie County v. McGhee

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Argued November 4, 2009. Recently settled.

Authorship: Erin Miller of Howe & Russell (with Amy Howe of Howe & Russell covering the cert.-stage proceedings)

Docket: 08-1065

Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

Contents

Briefs and Documents

Oral Argument

Transcript (November 4, 2009)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Oral Argument Recap

The oral argument in Pottawattamie County v. McGhee was an exercise in drawing lines – between policemen and prosecutors, investigation and prosecution, and torts of constitutional and non-constitutional varieties. The main line at issue in the case circumscribes acts that carry immunity for prosecutors. The Court seemed inclined to draw it based on the incentives created for prosecutors and potential litigants.

Justice Stevens depicted the petitioners’ view of immunity as “a strange proposition” – and Deputy Solicitor General Neal Katyal, arguing for the United States and the petitioners, agreed it “seems a little odd.” The idea everyone found so strange was that the closer an officer is to a wrongful conviction, the more immune she is for it. Two hypotheticals Justices Ginsburg and Kennedy posed to Stephen Sanders – also arguing for the prosecutors – zeroed in on that strangeness: Could a policeman be held liable for fabricating evidence? Or could a prosecutor from another case? Sanders was forced to admit that both the policeman and the second prosecutor could be held liable, though the prosecutor of the case himself could not.

For almost twenty minutes, the Court struggled to understand how a prosecutor’s fabrication of evidence is different from a policeman’s. On Sanders’ interpretation, the fabrication alone cannot create a constitutional harm until a prosecutor uses the evidence at trial and the trial ends in conviction. Then the prosecutor alone seems responsible for the harm, Justice Sotomayor asserted. If a policeman can still be responsible for fabricating evidence independent of its use at trial, then aren’t these two different acts subject to different liability? Justice Ginsburg summed it up: “It’s strange to say a prosecutor who wasn’t involved in the trial would have liability, but as long as the prosecutor turns the investigatory material over to himself, there’s absolute immunity.”

To Katyal, Justice Breyer communicated similar frustrations with the conceptual landscape presented by Pottawattamie County. Why can’t the entire prosecutorial act, from investigation to trial, constitute one violation but be divided for the purpose of immunity? Katyal’s answer, which seemed to pacify Justice Breyer in part, was that the statute under which McGhee is suing – § 1983 – allows suits only for constitutional torts; and the only established constitutional right implicated is the right to a fair trial.

Former Solicitor General Paul Clement – arguing for the respondents – faced fast and tough questioning about the practical consequences of his new immunity rule. The Justices seemed openly reluctant to undermine the rule of absolute prosecutorial immunity for fear of “chilling” prosecutors from performing critical duties. Justice Breyer worried a new pre-trial liability would discourage prosecutors from questioning witnesses. He dismissed as less important Clement’s counter-claim that immunity for all acts that contribute to a trial would give malicious prosecutors an incentive to use ill-gotten evidence in court.

Building on that line of questioning, Justices Alito and Scalia, in particular, worried that frivolous charges against prosecutors might become easier to allege if McGhee wins. Justice Alito painted a picture of the criminal justice system in which many witnesses are unreliable – like, he asked in a hypothetical, when a CFO insists no wrong was done at a corporation and then turns to testify against the CEO – and therefore easy game for angry defendants alleging their prosecutor knowingly used false testimony. Scalia added that an acquittal would add more evidence that the testimony was unreliable. The defense Clement set up was that past rulings making suits against prosecutors easier to allege have not actually flooded courts with claims.

Clement further argued that fabricating evidence before trial is a violation of the constitutional right to a fair trial – merely an incomplete one. But Justice Breyer pressed Clement to give a clear line up until which prosecutors could be held liable. He reluctantly committed to one: a prosecutor would be liable for investigatory acts until he found uncontrived probable cause to proceed with a trial.

That was perhaps the brightest line drawn during the oral argument. Wherever the Court ultimately draws the line on prosecutorial immunity, it seems clear they will be looking forward to its practical consequences.

Pre-Argument Articles

Argument Preview

Erin Miller originally wrote the following for SCOTUSblog.

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.

Grant Write-Up

Amy Howe originally wrote the following for SCOTUSblog.

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.”

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