Can a prosecutor who knowingly procures false testimony and introduces such testimony at trial be subject to a §1983 civil suit?
In 2005, Curtis W. McGhee and Terry J. Harrington, both convicted of murder in 1978, sued Pottawattamie County, Iowa, and former county attorneys Joseph Hrvol and David Richter under 42 U.S.C. § 1983, alleging, inter alia, that the Pottawattamie prosecutors coerced false testimony from third party witnesses and then introduced that testimony in their murder trials. The prosecutors argued that they were immune from the lawsuit based on the doctrine of absolute immunity, but both the district court and the Eighth Circuit disagreed. The Supreme Court’s decision will reveal the extent to which prosecutors are immune from liability for their pre-trial misconduct. This clarification may affect the way prosecutors try cases, and will, undoubtedly, influence the degree to which defendants can hold their prosecutors accountable for due process violations.
Questions as Framed for the Court by the Parties
Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant's "substantive due process" rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial.
In 1978, Petitioners Joseph Hrvol and David Richter obtained convictions and life sentences against Respondents Curtis McGhee and Terry Harrington for the murder of retired police captain John Schweer in Council Bluffs, Iowa the previous year. See McGhee v. Pottawattamie County, 547 F.3d 922, 925 (8th Cir. 2008). Although police attention initially focused on Charles Gates, a man identified by two witnesses as being near the scene with “a shotgun and a dog,” Hrvol and Richter soon turned their attention to McGhee and Harrington. See Id. at 926. The foundation of their case against McGhee and Harrington was 16-year-old Kevin Hughes. See Id. Hughes, who already had a lengthy criminal record, was facing charges for stealing a Cadillac and possible involvement in the Schweer murder. See Id. Detectives offered not to charge Hughes for the murder and drop the laundry list of other criminal charges against him and held out the possibility of his recovering a $5,000 reward for information regarding the Schweer murder if he cooperated in the investigation. See Id. at 927. Hughes agreed. See Id.
Investigators quickly discovered Hughes’s unreliability after he twice definitively implicated two men whom police investigation proved innocent; nevertheless, Hrvol and Richter viewed Hughes as the key to the Schweer murder investigation. See McGhee v. Pottawattamie County, 547 F.3d 922, 927 (8th Cir. 2008). McGhee and Harrington allege that the prosecutors pressured Hughes to incriminate them. See Id. Thus, even though Hughes had initially stated that he did not think they were involved, Hughes subsequently implicated McGhee and Harrington in a series of stories that continued to prove inaccurate. See Id. With evidence centering on the testimony of Hughes, his friends and criminal associates, and jailhouse informants, Hrvol and Richter brought murder charges against McGhee and Harrington. See Id. After their convictions in separate trials, McGhee and Harrington received life sentences. See Id.
In 2002, the Iowa Supreme Court overturned McGhee and Harrington’s convictions on post-conviction relief due to the prosecutors’ failure to provide defense counsel with exculpatory information, including the initial investigation into Gates and the full nature of Hughes’s statements to police. See McGhee, 547 F.3d at 925. The Iowa Supreme Court found that the prosecutors committed a due process violation under the Supreme Court’s decision in Brady v. Maryland. See Id. Prosecutors chose not to retry Harrington, and McGhee made an Alford plea in exchange for a sentence of time served. See Id. McGhee and Harrington were free after over 25 years in prison. See Brief for Respondents, Curtis McGhee and Terry Harrington at 14.
Respondents McGhee and Harrington sued Pottawattamie County and prosecutors Hrvol and Richter under 42 U.S.C. §1983, a statute creating a cause of action for victims of constitutional violations. See Brief for Respondents at 14. McGhee and Harrington allege in their complaint that Hrvol and Richter knowingly coerced false testimony from Hughes, his friends, and the jailhouse informants, and knowingly introduced perjured testimony at trial. See Id. The district court rejected the prosecutors’ claims of absolute immunity, finding fabrication of evidence prior to trial to be a due process violation. See McGhee, 547 F.3d at 928. The Eighth Circuit Court of Appeals affirmed the district court’s ruling. See Id. The Eighth Circuit interpreted Supreme Court precedent as providing absolute immunity for Hrvol and Richter’s acts during trial but not for pre-trial investigatory acts. See Id. at 932-33. Additionally, the Eighth Circuit found that the prosecutors’ alleged actions in coercing testimony from Hughes and other informants qualified as investigatory. See Id. at 932-33. Pottawattamie County, Hrvol, and Richter appealed to the Supreme Court, which granted certiorari on April 20, 2009. See Docket No. 08-1065.
Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter (collectively, “the County”), urge the Court to reverse the lower court decision and to hold that the doctrine of absolute immunity shields them from Respondents’ 42 U.S.C. §1983 claims. See Brief for Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter at 5–7. Respondents, Terry Harrington and Curtis McGhee, however, urge the Court to affirm the lower court decision, and find that neither absolute nor qualified immunity shields the County from suit. See Brief for Respondents, Curtis McGhee and Terry Harrington at 18.
Absolute v. Qualified Immunity
Absolute immunity is an unconditional protection from suit — even where there is definitive proof of unconstitutional activity. See Imbler v. Pachtman, 424 U.S. 409, 424 (1976). Aprosecutor, for example, is absolutely immune from suit for initiating a prosecution and presenting the State’s case at trial. See Id. at 430. Qualified immunity, on the other hand, allows a person to bring suit against a government official who violates his or her “clearly established” constitutional rights. See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). A government official who intentionally fabricates evidence for the purpose of depriving a person of his or her liberty violates a “clearly established” constitutional right to due process. See Zahrey v. Coffey, 221 F.3d 342, 344, 349 (2d Cir. 2000).
The differences between qualified and absolute immunity are particularly important in this case. See Brief for Petitioners; Brief for Respondents. The difference between absolute and qualified immunity in this case is really a difference between protection from suit and no protection at all. See Brief for Respondents at 28.
Should the application of absolute or qualified immunity depend on whether the governmental actor is a prosecutor or a police officer?
Harrington and McGhee argue that since Hrvol and Richter, like police officers, engaged in unconstitutional conduct during the investigative phase of the criminal process, they, like police officers, are eligible only for qualified immunity. See Brief for Respondents at 30. They assert that, “the conduct, not the identity, of the state actor, drives the constitutional analysis.” See Id. at 28. They argue that the fabrication of evidence by any governmental actor violates the Constitution. See Id.They emphasize that the Court should not treat Hrvol and Richter any differently than police officers who fabricate evidence. See Id. at 27. They argue, “petitioners stand or fall with the police officers with whom they worked side-by-side and conspired. All are liable; none is immune.” See Id.In advancing this argument, they cite Pyle v. Kansas, in which the Court held that police officers who fabricate evidence and deliver it to a prosecutor for use at trial violate the Due Process Clause. See Id. at 28.
The County agrees that the nature of the conduct in question, rather than the identity of the state actor, drives the constitutional question. See Brief for Petitioners at 21. It adds, however, that “the principle that pre-trial acts do not acquire absolute immunity simply because a prosecutor performs them is intended to assure that plaintiffs may recover for a prosecutor’s constitutional torts that produce injuries outside the judicial process.” See id. at 21. It maintains that absolute immunity should apply to any pretrial conduct occurring within the scope of a prosecutor’s professional role in the judicial process. See id.It emphasizes that in this case, Harrington and McGhee’s complaints relate to a trial injury—wrongful conviction based on perjured testimony. See id. at 20. As such, it argues, absolute immunity bars Harrington and McGhee’s claims regarding any prosecutorial pretrial conduct that led to that wrongful conviction. See id. at 22.
Did the alleged constitutional injury occur pretrial?
In support of their position in favor of absolute immunity, the County argues that McGhee and Harrington suffered no constitutional injury outside of trial. See Brief for Petitioners at 9. The County argues that it is the use at trial of perjured testimony to obtain a conviction that constitutes constitutional injury—not the antecedent act of procuring the false testimony. See Id. As such, it argues that the County enjoys absolute immunity from suit for any constitutional injury Harrington and McGhee suffered. See Id. In support of this position, the County stresses Chavez v. Martinez, in which the Court held that eliciting a false confession does not violate the Fifth Amendment until that confession is introduced at trial. See Id. at 10.
Conversely, Harrington and McGhee contend that constitutional injury occurs when a government official intentionally fabricates evidence to frame a citizen, regardless of whether there is a resulting conviction. See Brief for Respondents at 24-25. They state that the County’s contention that no constitutional injury occurs until a prosecutor uses fabricated testimony to obtain a conviction “confuses the constitutional violation with its effect.” See Id. at 25. Harrington and McGhee contend that Hrvol and Richter’s fabrication of evidence violated their due process rights “long before trial or conviction.” See Id. at 26.
If alleged constitutional injury occurred pretrial, does absolute immunity or qualified immunity apply?
In Buckley v. Fitzsimmons, the Court rejected “the extreme position” that absolute immunity only applies “to the act of initiation itself and to the conduct occurring in the courtroom.” See Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993). The Court held that absolute immunity can apply to a prosecutor’s preparations for the initiation of judicial proceedings or for trial. See id.The Court stated that in determining whether government officials enjoy absolute immunity, courts should apply a “functional approach” test, which “looks to the nature of the function performed.” See id.at 269. The Court ruled that prosecutors enjoy absolute immunity for conduct “intimately associated with the judicial phase of the criminal process.” See Id. at 270.
In light of Buckley, the County and McGhee both agree that Hrvol and Richter are absolutely immune from suit for alleged prosecutorial misconduct occurring after the formal filing of charges and during trial. See Brief for Petitioners at 12. They disagree, however, as to what protection, if any, Hrvol and Richter enjoy for their investigative actions before the formal filing of charges and before trial. See Brief for Petitioners at 25; Brief for the Respondents at 32.
The County argues that even if Hrvol and Richter coerced false testimony before formally filing charges against McGhee, they are absolutely immune from suit because they acted in anticipation of what would be persuasive to the trier of fact at trial. See Brief for Petitioners at 25. Any constitutional violation, they argue, occurred in preparation for initiation of a prosecution or judicial proceeding. See id. at 24-25. Characterizing Hrvol and Richter’s pre-trial acts as absolutely immunized because of their direct connection to a prosecutor’s conduct of a trial, the County contends that Harrington and McGhee fail to state a cause of action that may proceed under § 1983. See id. at 9.
Harrington and McGhee assert that Hrvol and Richter’s investigations occurred “long before” they can plausibly claim that they were preparing for judicial proceedings. See Brief for Respondents at 32. They characterize the prosecutors’ alleged unconstitutional conduct as occurring “pre-probable-cause.” See Id. at 32. In addition, they allege that rather than acting in the course of their professional roles as advocates for the State, Hrvol and Richter acted in their personal capacities. See Id. at 32-33. Specifically, Harrington and McGhee allege that Hrvol investigated alongside the police “long before he was assigned the case for prosecution purposes.” See Id.Additionally, Harrington and McGhee allege that Richter’s motivations were political, as he was “no doubt aware of the importance of solving the crime to his election effort.” See Id. at 32.
While the parties disagree as to how to distinguish prosecutorial pretrial misconduct intimately connected with the trial versus misconduct attenuated from judicial proceedings, they agree that use of fabricated evidence at trial does not automatically absolutely immunize a prosecutor from suit for the procurement of the fabricated evidence pretrial. See Brief for Petitioners at 21; Brief for Respondents at 38. The County argues that a prosecutor’s absolute immunity in judicial proceedings does not retroactively shield him or her suit for pretrial investigative or administrative work unconnected to the judicial proceedings. See Brief for Petitioners at 21. Likewise, Harrington and McGhee state that a prosecutor who falsifies evidence for the purpose of framing an innocent man cannot “grant himself absolute immunity if, but only if, he takes the further unconstitutional step of introducing the fabricated evidence at trial.” Brief for Respondents at 35.
The parties disagree as to the extent to which prosecutors should be liable for allegedly violating defendants’ substantive due process rights in preparation for trial. See Brief for Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter; Brief for Respondents, Curtis McGhee and Terry Harrington. Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter (collectively, “the County”), argue that prosecutors should enjoy absolute immunity and never be liable. See Brief for Petitioners. Conversely, Respondents, Harrington and McGhee, argue that prosecutors should at most enjoy qualified immunity and only sometimes be liable. See Brief for Respondents.
The County and the prosecutors recognize that providing prosecutors with absolute immunity may “leave victims of egregious prosecutorial misconduct without a remedy.” Brief for Petitioners at 19 (citing Michaels v. McGrath, 531 U.S. 1118, 1119 (2001)). They nevertheless advocate for the application of absolute immunity for prosecutors, noting that the Supreme Court has continuously upheld its underlying rationales. See Id. Specifically, the County asserts that the Supreme Court has repeatedly deemed absolute prosecutorial immunity a necessary evil, given that it protects prosecutorial independence, discourages meritless claims, and prevents relitigation of criminal appeals. See Id. (citing Van de Kamp v. Goldstein, 129 S. Ct. 855, 859 (2009)).
State governments across the country support the County’s position in favor of absolute immunity. See Brief of Amici Curiae the States of Colorado, et al. in Support of Petitioners. The United States also supports the County. See Brief of Amicus Curiae the United States in Support of Petitioners. Although the United States condemns the prosecutors’ alleged actions, if true, as “execrable” and “a complete breach of the public trust,” it foresees negative practical implications of allowing suits against prosecutors for pretrial misconduct. See id. at 5; Brief of Amici Curiae the National Association of Assistant United States Attorneys, et al. (“Assistant United States Attorneys”) in Support of Petitioners at 3. In particular, the United States fears that allowing such suits would expose prosecutors to expensive, frivolous litigation. See Brief of Assistant United States Attorneys at 4. The County warns that allowing such suits would lead to “the chilling of the essential exercise of wholly constitutional efforts to prosecute criminal defendants.” See id. at 4. The United States stresses that allowing a cause of action against the type of conduct alleged here would amount to a “subversion” of the principles of prosecutorial immunity, which promote prosecutorial confidence and prevent the diversion of prosecutorial resources to defending civil suits. See Brief of the United States at 5.
Respondents McGhee and Harrington contest the notion that allowing a cause of action under the specific facts of this case would open the floodgates of litigation against prosecutors. See Brief for Respondents at 50. They opine that the extremity of the acts at issue here will protect against an onslaught of “easy-to-allege but hard-to-prove” claims. See Brief for Respondents at 50–51.
They maintain that even if the specific facts of the current case are insufficient to safeguarded against frivolous § 1983 claims, the Court’s new heightened pleading standard under Ashcroft v. Iqbal reduces or eliminates the concern of overexposing prosecutors to meritless litigation. See Id. Under Ashcroft v. Iqbal, § 1983 claims must be plead with sufficient facts to state a facially plausible claim. See Id. McGhee and Harrington contend that only plaintiffs able to provide plausible facts in the first instance are entitled to bring suit. See Id.
In support of McGhee and Harrington is the organization Black Cops Against Police Brutality (“BCAPB”), which represents both the interests of law enforcement and African-Americans. See Brief of Amicus Curiae Black Cops Against Police Brutality in Support of Respondents. BCAPB contends that there is no reason to hold prosecutors conducting investigations to a lower standard than police officers conducting the same. See Id. at 34-36. It cautions that racial undertones hide beneath the surface of this case given the wrongful conviction of black defendants in a primarily white county by white prosecutors. See Id. at 6-16. BCAPB contends that the Court, in making its decision, should take the history of prosecutorial misconduct driven by racial motivations into account. See Id.
The outcome of this case will clarify the extent to which prosecutors are immune for violating defendants’ due process rights in obtaining a false conviction. Petitioners, Pottawattamie County, Joseph Hrvol, and David Richter, argue that when prosecutors violate defendants’ due process rights in preparation for trial, common law, public policy, and Supreme Court precedent require affording them absolute immunity. Respondents, Terry Harrington and Curtis McGhee, argue that while absolute immunity may apply to violations that occur during trial, the Constitution prohibits shielding prosecutors who, well in advance of trial, fabricate evidence in order to frame innocent citizens.
- ABA Journal: Drawing the Line: Court Looks Again at How Much Immunity Prosecutors Have
- Los Angeles Times: Court to Hear Appeal in Immunity Case
- Reason.com: The Infallible Prosecutor: Should Prosecutors Who Manufacture Evidence Be Susceptible to Lawsuits?
- Truth in Justice: Free Man: Case Dismissed Against Man Who Served 25 Years