Private: Pottawattamie County v. McGhee: Are Prosecutors Immune from Civil Suit for Fabrication of False Testimony?

By Martin Magnusson. Mr. Magnusson is an associate at Day Pitney LLP.

In 1978, two young African-American men, Terry Harrington and Curtis McGhee, were convicted of the murder of a retired police officer. Their conviction hinged almost entirely on the uncorroborated testimony of one man: Kevin Hughes.

After spending twenty-three years in prison, Mr. Harrington filed a post-conviction relief petition in Iowa state court, arguing that the county attorney who had prosecuted him had failed to disclose exculpatory evidence that pointed to an alternate suspect: the white brother-in-law of a local fire-department captain.

Ultimately, the Iowa Supreme Court vacated Mr. Harrington's conviction. Shortly thereafter, Mr. McGhee entered into a plea agreement in which he pleaded guilty to a lesser crime in exchange for time served. 

Two years later, Mr. Harrington and Mr. McGhee sued the county attorney and assistant county attorney who had prosecuted them. They alleged that the county attorney acted under tremendous political pressure:

Petitioner David Richter was the Pottawattamie County Attorney at the time. Richter had been appointed County Attorney in 1976 and was to face the voters for the first time in 1978. Richter confronted the daunting prospect of campaigning in the face of [the slain police officer's] unsolved murder.

They also alleged that the county attorney and his assistant took an active role in the investigation:

Contemporaneous police reports confirm that Richter and Assistant County Attorney Joseph Hrvol actively participated in the murder investigation from its earliest stages, interviewing witnesses and doing ordinary police work.

But Mr. Harrington and Mr. McGhee allege that these prosecutors' interest in the case went far beyond performing ordinary police functions: These prosecutors constructed a completely baseless case against them. Mr. Harrington and Mr. McGhee allege that the prosecutors did so by helping Kevin Hughes to fabricate the false testimony that he gave at their trial. When the Iowa Supreme Court vacated Mr. Harrington's conviction, it flatly characterized Kevin Hughes, "the primary witness against Harrington, [as] a liar and a perjurer."

In responding to Mr. Harrington and Mr. McGhee's lawsuit, though, the prosecutors argued that even if they had fabricated Kevin Hughes's false testimony, they are nonetheless absolutely immune from suit. Their argument is grounded in Imbler v. Pachtman. In Imbler, the Supreme Court held that a state prosecutor who acts within the scope of his or her duties in initiating and pursuing a criminal prosecution and in presenting the state's case is absolutely immune from civil suit under 42 U.S.C. § 1983. Section 1983 is a federal law that allows individuals to sue for violations of their constitutional rights, and is the law under which Mr. Harrington and Mr. McGhee sued David Richter and Joseph Hrvol.

The Supreme Court's Imbler opinion is quite broad. It grants prosecutors absolute immunity from § 1983 lawsuits even if they knowingly used perjured testimony at trial, deliberately withheld exculpatory information, or failed to make a full disclosure of all facts casting doubt upon the state's testimony.

But in their Supreme Court brief on behalf of Mr. Harrington and Mr. McGhee, famed trial lawyer Gerry Spence and former solicitor general Paul Clement argue that because the prosecutors engaged in their bad acts long before trial, while acting in an investigatory function, Imbler doesn't apply:

In reality, [the prosecutors] are asking [the Supreme Court] to allow their conduct at trial to retrospectively immunize their investigative conduct that was not absolutely immune when it occurred.

And Spence and Clement contend that accepting the prosecutor's argument would lead to the absurd result of actually providing an incentive for a prosecutor to introduce evidence that he or she had previously fabricated, because then he or she would be absolutely immune from § 1983 liability:

The law should not encourage a prosecutor who fabricates evidence to follow through and use that evidence himself at trial.

In contrast, the prosecutors contend that if a prosecutor's conduct at trial enjoys absolute immunity, conduct before the trial cannot abrogate that immunity:

[The lower courts that ruled in favor of Mr. Harrington and Mr. McGhee] assumed that [the prosecutors] had only qualified immunity for pre-trial acts, and then pushed that liability forward to prospectively abrogate immunity for use of the evidence at trial. That reasoning is flawed . . . Where a plaintiff claims that a prosecutor committed a pre-trial act with the intent to affect the trial, as [Mr. Harrington and Mr. McGhee] allege here, that particular pre-trial act is absolutely immunized as well.

The Supreme Court will hear oral argument in Pottawattamie County v. McGee next week, Nov. 4. 

Criminal Justice, Supreme Court