Thursday, October 1, 2009

Supreme Court to hear case re immunity for prosecutorial misconduct

On Wednesday, November 4, the U.S. Supreme Court will hear oral arguments in a case called Pottawattamie County, Iowa v. Harrington. It will be an important case with implications for the two courses I teach (torts and professional responsibility).

The professional responsibility angle comes from the fact that the issue in the case originates in prosecutorial misconduct. Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.

Prosecutors are lawyers subject to the ethical mandates of the rules of professional conduct. They have a lot of discretion in the performance of their functions but they are also considered ministers of justice whose main duty is to see justice done, not to advocate for a client or for a predetermined result.

But this case is not about the misconduct. It is about a civil cause of action for damages based on the misconduct. As to that cause of action, the prosecutors contend that they have absolute immunity from liability. (The Obama administration has filed an amicus brief in support of this position, by the way.)

Here is the interesting part: prosecutors generally have absolute immunity from civil liability for their conduct in the process of prosecuting the case, but, in addition to being just prosecutors, prosecutors are members of the law enforcement team that investigates and "builds" the cases that they later prosecute. This "dual role" is simply part of their role in the system. Should their right to immunity (or, more accurately, the level of that immunity) change depending on the role they are playing at the time of the alleged violation of civil rights?

In this case, the prosecutors' misconduct initiallytook place while they were involved in investigating the crime since they allegedly conspired with the police to manufacture false evidence. Their misconduct then continued during the trial since they presented perjured testimony.

Therefore, the question is whether prosecutors should be entitled to absolute immunity when they engage in misconduct during the investigative phase of a case even if that misconduct is the basis for subsequent misconduct for which they have absolute immunity.

For a lot more information, on this case copies of the briefs and other documents go to the Supreme Court Wiki site here.

Thanks to the Drug & Device Law blog for the info and links.

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