Tuesday, 19 May 2009

Another View: Let plaintiffs sue for prosecutorial abuse

The U.S. Supreme Court's decision to hear an appeal of an Iowa case means that two men who were wrongly convicted of murder 31 years ago may wait at least another year before their civil suit against their prosecutors could be heard. That's the optimistic view.

A less optimistic view is that Terry Harrington and Curtis McGee may never have the opportunity to make their case in civil court that former Pottawattamie County prosecutors allegedly conspired to convict them of a murder they did not commit.

The nine members of the Supreme Court who will ultimately rule in this case are the only ones who know for sure which way this case is headed. If the court wanted to uphold the lower-court decision that had cleared the civil suit to proceed, it could have simply declined to hear this appeal and gotten out of the road.

Accepting the case suggests at least some of the justices think prosecutors should be totally immune from lawsuits, which goes too far. While prosecutors need some protection to do their jobs, the door should not be entirely closed against using the civil-justice system to explore the truth of claims of outrageous prosecutorial abuse.

That is precisely what the two plaintiffs in the Pottawattamie case assert happened. Harrington and McGee, two black teenagers from Omaha, were convicted in 1978 by a Pottawattamie County jury in the shooting death of a retired Council Bluffs police captain who was working as a night watchman. Both insist to this day they were, and are, innocent.

In their civil suit, Harrington and McGee say their first-degree murder convictions — which were overturned by the Iowa Supreme Court 25 years later — were the result of the worst sort of prosecutorial misconduct. Their suit brought in federal court in Des Moines alleges that former Pottawattamie County Attorney David Richter and his then-deputy Joseph Hrvol not only manufactured evidence against them but concealed evidence of a stronger suspect.

State and federal prosecutors in the course of executing their official duties generally enjoy immunity from suits under state laws and judicial decisions. Robert Pratt, chief judge of the Southern District of Iowa, ruled that the doctrine of prosecutorial immunity does not protect prosecutors for misconduct that carries over to the trial from the evidence-gathering phase. The Eighth Circuit U.S. Court of Appeals, based in St. Louis, Mo., upheld Pratt on that point, but other circuit courts have taken a different view. Because there is disagreement among the lower federal appellate courts on this point, the U.S. Supreme Court is now poised to settle the issue.

There is a case to be made that the public has an interest in protecting prosecutors from having to defend themselves every time a criminal prosecution goes wrong. But does that mean a criminal defendant can never bring a lawsuit against prosecutors responsible for outrageous conduct? Does the Constitution have nothing to say about prosecutors who conspire to convict the innocent?

In an age when convicted murderers are being released from death row based on new DNA evidence and when prior criminal convictions are being overturned because of clear prosecutorial misconduct — the most recent being that of former Alaska Sen. Ted Stevens — it's time for the courts to reconsider a rule that gives total protection to prosecutors who abuse their powers.

(Source : www.statesmanjournal.com)

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